| The remand for retrial system in second instance procedure of civil lawsuit is animportant system in our country civil procedure law. For the remand for retrial systemin second instance procedure of civil lawsuit, whether academic theory circles orjudicial practice circles are all keep question’s attitude. most scholars think that ourcountry’s the remand for retrial system in second instance procedure of civil lawsuit isunreasonable, it should be reform and perfect, even some famous scholars andpractice circles advocate there ’s no need for this system to exist, it should beabolished. The author thinks that, research the remand for retrial system in secondinstance procedure of civil lawsuit must be exact analyses and define its function andvalue, so as to get the real cause of the problem, thus achieve the purpose of problemsolving. This article from the remand for retrial system in second instance procedureof civil lawsuit in our country real judicial practice exist the specific problems,through the analysis and points out the main reason that caused the remand for retrialsystem in second instance procedure of civil lawsuit in the practice be abused anddefects of the system mainly comes from lawmakers of the function and the valueorientation, inadequate understanding, not clear, cause the system Settings is notreasonable. This article through to in the course of the remand for retrial system insecond instance procedure of civil lawsuit, its function and the analysis of the valueshould be, and find out the current civil new trial system in the second set and theoperation process and its function and value should be the place of abhorrent,analyzes in detail the legislative defects and the malpractice of reality based on andfind out the problem, and appropriate foreign reference for other countries or regionsin the civil procedure law of the retrial of beneficial practice, with China’s specificconditions and the realistic environment, finally puts forward to strengthen ourcountry the remand for retrial system in second instance procedure of civil lawsuitshould have in the course of the function and value theory principle and system design,so as to the future of the legislation and judicial practice of great significance.This paper, besides the introduction and conclusion, which can be divided intothree parts: The first part is for survey the remand for retrial system in second instanceprocedure of civil lawsuit in our country currently, From our country current theremand for retrial system in second instance procedure of civil lawsuit about the civillitigation legislation and judicial present situation, combined with the three cases ofjudicial practice in China, points out that in the course of the remand for retrial systemin second instance procedure of civil lawsuit existing concrete problems and brieflyanalyzes the existing problem the reason.The second part is forward to analysis the remand for retrial system in secondinstance procedure of civil lawsuit should be provided with function and value.Because the first part think that caused the remand for retrial system in secondinstance procedure of civil lawsuit in the practice be abused and defects of the systemmainly comes from lawmakers of the function and the value orientation, inadequateunderstanding, not clear, cause the system Settings is not reasonable. Therefore theauthor in the course of the remand for retrial system in second instance procedure ofcivil lawsuit set up by the purpose of expectation and results, summed up in thecourse of the remand for retrial system in second instance procedure of civil lawsuitshould be provided with function and valueThe third part combine the remand for retrial system in second instanceprocedure of civil lawsuit existing problems in China and the remand for retrialsystem in second instance procedure of civil lawsuit should be provided with functionand value, separately from the " remand " and " retrial " two stages to maketheoretical principles and systems design, it puts forward to strengthen the functionand value of the remand for retrial system in second instance procedure of civillawsuit in china. |
