The Second Instance Of Civil Action Remands The Retrial Reason Research

Remand is a way to conclude the appellate proceedings of civil cases,and is an exception to the discretion of the appellate court.The court of appeals must rule on remand strictly on the basis of the statutory grounds for remand.Since 1991,China’s Civil Procedure Law has provided for the grounds for remand in the form of independent legal provisions,determining that the grounds for remand are "the original judgment found the facts wrong,or found the facts unclear,insufficient evidence" and "the original judgment violates the statutory procedures,which may affect the correct judgment of the case ".This provision is too broad,the judge’s discretionary power,easy to lead to the abuse of the cause of remand,and therefore criticized by the theoretical and practical circles.In response,in 2012,the Civil Procedure Law made a major amendment to amend the grounds for remand to "the original judgment found that the basic facts are unclear" and "the original judgment omitted parties or illegal default judgment and other serious violations of statutory procedures",which is still in use today.This provision is still in use today.Although this amendment is somewhat progressive,and the grounds for remand are strictly limited,it still fails to reflect the inherent requirements of the remand system,and the irregular application of the grounds for remand in practice is not only prohibited.Therefore,we should re-examine the subject matter of remand,the scientific setting of legal provisions,reasonable judicial application.The setting of the cause of remand must be based on the nature of the appeal process,reflecting the purpose of the remand system,and strictly follow the basic principles of civil procedure law.At the legislative level,whether substantive or procedural reasons,its setting should be to safeguard the interests of the parties to the trial level as the starting point,the case is necessary for further verbal debate by the parties to the premise.As long as the original judgment infringes on the parties’ trial interests and the right to debate,the appellate court can make a decision to remand accordingly.In addition,the legislative setting of the grounds for remand should also reflect respect for the parties’ right to disposition and guarantee the parties’ right to choose the retrial procedure.At the judicial level,the second instance judge should firstly establish the concept of remand as an exception to the discretionary judgment,and give full play to the fact-finding function of the second instance court;secondly,the second instance court must have a detailed reasoning process for the remand decision,and strengthen the trial judge’s reasoning for the remand;finally,establish the supervision and accountability mechanism for the remand,and regulate the judicial application of the remand.