Research On The Relief Of Omissions In Civil Judgments

Omission of civil judgment is not the normal state of the adjudication,but with the increased complexity of the case,and sometimes the judge may have some kind of mistake,civil judgment omissions do occur.As the last line of defense to safeguard social fairness and justice,judicial remedy for civil judgment omission is imperative.The current legislation and judicial interpretation use two methods to remedy the civil judgment omission: sending back to retrial or starting the retrial procedure.From the perspective of litigation value and jurisprudence,if no distinction is made between the types of missed judgment but just applied “sending back to retrial” or “starting the retrial procedure” rigidly will not only infringe upon the litigants’ interests of the parties,reduce lawsuit efficiency,violate judicial credibility,but also go against the basic principles and system of civil litigation.Even if the above-mentioned imperfect legislative remedy approaches are also faced with the situation of "theory disassociated from judicial practice" in the litigation activities.For the omitted litigation request,the review court usually corrects directly in the appeal procedure,"mediation fails,send back to retrial" is rare.The remedy of civil judgment omission through retrial procedure is also faced with such a situation.If the party did not file an appeal against the omission of the claim during the appeal period.After the judgment of the first instance came into effect,the party found the omission of the claim,which was the reason for applying for the retrial,and the final appeal was supported.The ambiguity of the legislation on the relief of omission in civil judgment leads to the confusion of the relief in judicial practice,which impairs the authority of law and the impartiality of judicature.In addition,although there are studies on civil omission of judgment relief in the academic circle,the basic focus is on theories and the introduction of supplementary judgment system.Few studies on civil omission of judgment relief are based on China’s judicial practice.However,the research perspective based on the knowledge system of comparative law will often encounter an awkward situation of "acclimatization" once it comes into contact with reality.Based on this,this paper attempts to clarify the value and significance of the relief of omission in civil judgment through the interpretation of the theory of omission in civil judgment.Based on the analysis of a large number of judgment documents,this paper proposes the basic path to improve the relief of omission in civil judgment in China,so as to provide reference value for the legislation of civil procedure.This paper consists of five chapters:Chapter one,the introduction.This part of content has the research reasons,the literature review as well as the research methods and the article innovation point.The common practice of remedy for omission of judgment in civil law countries and Chinese Taiwan is to supplement the judgment system,while Chinese scholars mainly elaborate the remedy for omission of judgment from the perspectives of the connotation of omission in civil judgment,the starting subject of remedy,the starting period,and the subject of judgment.Chapter two,the summary of omission in civil judgment.Omission of civil judgment refers to the situation which the court omits part of the litigation claims made by the party.This chapter mainly discusses the constitution of judgment,the elements of action,the number of action and the cost of action,and then defines the judgment standard and scope of omission in civil judgment.Finally,the author points out the similarities and differences between omission in civil judgment and misrepresentation in judgment from the perspective of relief mode and existence form.This paper points out the similarities and differences between omission of civil judgment and partial judgment from the perspective of nature and subjective intention.Chapter three,the legal analysis of the civil judgment omission relief in China.There are two modes of relief for civil judgment omission: "mediation + retrial" mode and retrial mode.Using "mediation + retrial" to remedy the omission of judgment has the following limitations: the scope of the appeal procedure to remedy the omission of judgment and the scope of retrial is not clear,and the mediation presided over by the second-instance court damages the interests of the parties at the trial level.As for the effective judgment,it does not distinguish the types of judgment omission,and retrial procedures are used to provide relief,which leads to the frequent start of the retrial procedure,which not only violates the nature and function of retrial,but also violates the system of final adjudication of two trials,reduces the litigation efficiency,and weakens the res judicata of effective judgment.Chapter four,the practice analysis of civil judgment omission relief in China.This chapter is divided into two parts: the first part is a brief analysis of 1,153 judgments from the court level,geographical distribution,relief procedures and so on.The second part expounds the main problems reflected in the practice of omission in civil judgment: the parties,the court and the procuratorate do not agree on the judgment standard of omission in civil judgment,the judicial practice deviates from the judicial interpretation on the relief of omission in judgment,and the conflict between the right of legal supervision and the right of disposition.Chapter five,the improvement of the procedure of civil judgment omission relief in China.In this part,the design of relief procedure is divided into two stages: the procedure initiation stage and the procedure application stage of civil judgment omission relief.In the procedure initiation stage,the omission judgment is reviewed.In the procedure application stage,different situations of omission judgment are applied to different relief procedures,and the construction of supplementary judgment system is proposed.