| The theory of res judicate is an extremely important basic theory in the field ofcivil action. The res judicate is to judge the essential determine force, in order toavoid the judgments that the same subject matters of litigation conflict and avoidrights and obligations of litigant in an uncertain state. Therefore, after the refereebecoming effective, before the revocation or modification of legal procedures inaccordance with the law, litigant and the people’s court shall be bounded by thereferee and shall not have any disputes on its contents to maintain the program’sstability and the authority of the law. To correct the error referee in force, theprocedure of retrial for realizing substantive justice, is undoubtedly a challenge to theeffective verdict and break referee’s stability. Therefore, conflicts between theprocedure of retrial and the res judicate system are formed in the appearance, but theyare essentially uniform and their ultimate goal is to achieve justice.The thesis is divided into three parts. Part One is the analysis of procedure ofcivil retrial and judicial theory of res judicate. The res judicate has the mandatoryuniversal force to determine the content of the final judgment. As a legal systemcoming of the Roman law, the theory of res judicate researches of civil law countriesare more mature and in-depth, although the “res judicate†terms are not explicitlyused by the common law countries in legislation, there is the res judicate system inthe common law countries. The theory of res judicate research of Chinese CivilProcedure Law is still in its infancy, but the contents about “non bis in idem†and “resjudicate†also exist in the Code of Civil Procedure in China. Our res judicate systemis theoretically analyzed through positive, negative and macro functions of resjudicate and the value of res judicate including the realization of litigation economy,the protection of procedural fairness, maintaining program stability, the safeguard ofjudicial authority and the enhancement of judicial credibility. The procedure of civilretrial is a procedure system to hear and referee civil cases which have been refereedagain in the case of law. The procedure of retrial is the procedure for trial supervisionprovided by the Civil Procedure Law. The basic framework provided by the current legislation of our procedure of civil retrial is discussed in further detail through errorcorrection function, relief function, monitoring and protection function of theprocedure of the civil retrial as well as the comparison between the procedure of civillaw of civil law countries and relief ways to error valid judgment of common lawcountries, that is, starting the main body of procedure of retrial provided by Chinesecivil law is divided into the retrial of People’s Court based on its function and power,the retrial of People’s Procuratorate in accordance with the legal supervision and theapplication of litigant for a retrial, introduce and illustrate the case.Part Two is the conflicts between procedure of the retrial and judicial res judicate.Because of the antagonistic and unified relationship between procedure of civil retrialand res judicate, correct understanding is the unavoidable issue for researching therelationship between the res judicate procedure of retrial. The legislation guidingideology of the procedure of retrial in our Civil Litigation based on “seeking truthfrom facts, mistakes must be corrected†and the conflicts with the theory of resjudicate, People’s Court automatically activates procedure of retrial that violates thelitigant freedom disposition, is contrary to the theory of res judicate and leads tomany disorder phenomena in the procedure of retrial; People’s Procuratorateexercising the civil protest right that is against a time limit and the restriction number,has the random scope of protest and easily causes the conflict became law andprosecution, violates the theory of res judicate; litigant applying for a retrial has cleardefinition, but there are still some drawbacks. This part clearly articulated theconflicts between procedure of retrial and the stability of law through the conflictsamong procedure of retrial, stability of program, finality of referee and authority ofthe Court.Part Three, the balance between procedure of retrial and judicial res judicate.This part specifically analyzes the balance between procedure of retrial and the resjudicate through remodeling retrial guiding ideology and building concrete ideas ofprocedure of retrial. In order to re-build the procedure of retrial, the guiding ideologyof “seeking truth from facts, mistakes must be corrected whenever discovered.†shallbe updated to the new guiding ideology “balance to correct the error referee andmaintain the stability of the effective refereeâ€. Building procedure of retrial, first, abolish the retrial of people’s court based on function and power, limited the People’sProcuratorate to protest retrial, coordinate conflicts between law and procuratorateand perfected litigant to apply procedure of retrial, so improve the start of procedureof retrial; second, strictly litigant application for a retrial shall be limited, includingthe corresponding retrial reasons, the concepts and the conditions of retrial reasonsshall be further defined according to different settings; last, scope of the retrial shallbe strictly limited, that is, on one hand, the case without appealing shall not enter theprocedure of retrial, on the other hand, the case which has been proposed to apply fora retrial on the same retrial reason and has carried out the retrial shall not be allowedto enter the procedure of retrial.The system of retrial res judicate coexist in the civil litigation system that isenough to explain the contradiction between the two opposition is not irreconcilable.Maintain the finality effectiveness of effective judgment while it is necessary toconsider moderately the retrial of the case. Recognize and take the correct systemdesign to ease the conflict between the two, find the best balance point and ultimatelyachieve justice. |
