Paper Keywords: the right of disposition of the parties in retrial procedure
The right to dispose of the parties is the most basic litigation right, which should be effectively guaranteed not only in the first and second trial procedures, but also fully respected and protected in the civil retrial. Article 13 of China's Civil Procedure Law stipulates that the exercise of the parties' right of disposition must be within the scope prescribed by law, so the right of disposition is not absolute. Therefore, any party's behavior that damages the national interests and the legitimate rights and interests of others in the name of enjoying the right to dispose must be supervised and restricted. I just divide the retrial procedure into two parts from the perspective of civil disposition right, and discuss that it respects the disposition right of the parties, and at the same time make necessary restrictions on it.
Civil retrial procedure (hereinafter referred to as retrial procedure) refers to the procedure of retrial and judgment of civil cases when there are circumstances stipulated by law. Retrial procedure is an independent trial procedure in civil procedure law. It is not a necessary trial procedure for the people's court to hear civil cases, which is different from the first-instance procedure and the second-instance procedure in the civil procedure law. As far as its nature is concerned, retrial procedure is a remedial procedure to correct the wrong judgment of the people's court that has taken legal effect, that is, the special trial procedure without increasing the trial level [1]. The retrial procedure should not only consider maintaining the stability and authority of the final judgment, but also realize legal justice through error correction. China's "Civil Procedure Law" has clearly given the parties the right to apply for retrial for the wrong judgment that came into effect, but the right of the parties to apply for retrial is difficult to realize in judicial practice. There are two direct reasons: first, the law is too simple to apply for retrial, so that the application for retrial has not formed a formal complaint; Second, the legal reasons for retrial are vague. Therefore, in China's retrial system, we should establish the main position of the parties in the retrial procedure and respect the civil disposition rights of the parties.
First, the civil retrial procedure protects and restricts the disposition right of the parties.
(1) Civil retrial procedure to protect the disposition right of the parties.
According to the requirements of the principle of disposition in civil litigation, it is up to the parties to decide whether to start the litigation procedure, which is embodied in practice as the principle of "not suing and ignoring". However, there are three parties to start the retrial procedure: the court, the procuratorate and the parties. In practice, it is initiated by courts and procuratorates, and the disposition right of the parties is invalid. But in essence, the disposition right of the parties is the most basic litigation right, which should be guaranteed not only in the first and second trial procedures, but also fully respected and protected in the civil retrial.
The protection of the parties' right of disposition in China's civil procedure law is mainly reflected in the following aspects:
1. One party may apply to start the retrial procedure. Article 178 of China's Civil Procedure Law stipulates: "If a party thinks that a legally effective judgment or ruling is wrong, it may apply to the people's court at the next higher level for retrial, but the execution of the judgment or ruling will not be stopped." The purpose of this provision is to show respect for the disposition right of the parties, thus alleviating the phenomenon that the retrial application can not be responded in time and improving the degree of the parties' participation in the procedure. However, in practice, the retrial procedure cannot be started directly because the parties apply for retrial, but it must be decided by the court. However, the court often adopts an administrative and authoritative unilateral review method for retrial applications, which lacks standardization and fairness. The review process is not open and transparent, and the participation of all parties is low. Moreover, the process is complex, long and inefficient, which leads to the failure to protect the rights of the parties in time, which leads to the dissatisfaction of the parties and seeks protests from the procuratorate and the National People's Congress.
2. Provide legal reasons for retrial. Article 179 of the Civil Procedure Law stipulates the legal reasons for the parties to apply for retrial, if the parties have new evidence enough to overturn the original judgment or ruling; The basic facts identified in the original judgment or ruling lack evidence to prove; The main evidence of the facts ascertained in the original judgment or ruling is forged, and other provisions of 13. In 2007, the revision of the Civil Procedure Law further standardized the reasons for retrial, concretizing the reasons for retrial stipulated in the Civil Procedure Law from five situations to 13 situations, enhancing operability, reducing arbitrariness, avoiding the non-retrial of those who should be retried, dredging the channels for the parties to apply for retrial, effectively protecting the rights of the parties to apply for retrial, and thus protecting their disciplinary rights.
3. It is clear that under special circumstances, the time limit for the parties to apply for retrial should be extended. Article 184 of the Civil Procedure Law stipulates: "The parties shall apply for retrial within two years after the judgment or ruling becomes legally effective; Two years later, the legal documents on which the original judgment or ruling was based were revoked or changed, and it was found that the judges had committed acts of corruption, bribery, malpractice and perverting the law in the trial of the case, which was put forward within three months from the date when they knew or should have known. " After the revision, it is clear that if special matters in the current regulations are discovered two years later, they may not be restricted by the two-year period after the judgment or ruling takes effect, as long as they are put forward within three months from the date when they know or should know these specific matters. This invisibly expands the exercise period of the parties' right of disposition, so that the parties can better safeguard their legitimate interests.
(B) the civil retrial procedure restrictions on the right to civil disposition
Article 13 of China's civil procedure law stipulates that the exercise of the parties' right of disposition must be within the scope prescribed by law, so the right of disposition is not absolute. Therefore, any party's behavior that damages the national interests and the legitimate rights and interests of others in the name of enjoying the right to dispose must be supervised and restricted. The most typical example, such as the collusion between the two sides to embezzle state-owned assets, seems that both sides are exercising the right to dispose, but in essence it is a misinterpretation and abuse of the right to dispose. Due to the passivity and passivity of judicial power, it is sometimes difficult to supervise the abuse of disciplinary power, while procuratorial power makes up for this deficiency because of its initiative and enthusiasm, so that the disciplinary principle stipulated in the civil procedure law can be better implemented.
China's civil procedure law is based on the legislative guiding ideology of "seeking truth from facts and correcting mistakes" to design retrial procedures. The positive significance of this legislative guiding ideology lies in attaching importance to the protection of the substantive rights of the parties, fully embodying the substantive justice, and especially emphasizing the substantive justice of individual cases, so that every case can be handled correctly and every misjudged case can be completely corrected. However, it is not absolutely correct and feasible to apply this legislative idea to civil litigation without analysis. From the legislative point of view, as long as the court thinks there is a mistake, it can start the retrial procedure ex officio without the consent of the parties. It can be seen that the disposition right of the parties is restricted by the retrial procedure and cannot be freely exercised.
In practice, the scope of the right of disposition is generally understood as that the parties shall not harm the national interests, social public interests and the legitimate rights and interests of the third party when exercising the right of disposition. In the retrial procedure, the disposition right of the parties is obviously restricted, mainly in the following aspects:
1. If the procuratorate protests and the court retries according to its authority, the parties have no right to withdraw the retrial application. Because no matter whether the procuratorate protests or the court retries according to its authority, it is not the retrial caused by the disposition right of the parties, but the retrial caused by the authority of the court or procuratorate. Retrial according to authority means that judicial organs take the initiative to correct errors in adjudication and implement the principle that mistakes must be corrected. In this case, the disposition right of the parties is concealed by the authority of the judicial organs, and the litigation rights enjoyed by the parties at this time are the right to participate in the retrial procedure and the right to dispose of the substantive rights of the retrial procedure. The parties only have the right to dispose of the substantive issues in the retrial procedure, but have no procedural right to dispose of the retrial procedure, and cannot choose to close the case by withdrawing the retrial application.
2. The parties are not only limited by the scope of litigation, but also by the nature of the right of claim. Once the personal relationship is dissolved, it cannot be restored through retrial, because it limits the right of disposition of the parties. For example, in divorce cases, after the divorce judgment takes effect, the parties can only apply for retrial on property division and child support, but not on marriage.
Second, to ensure the reconstruction of the parties' right to exercise punishment in the retrial procedure.
(a) to cancel the court's right to initiate retrial.
Article 177 of the Civil Procedure Law stipulates that the court can initiate a retrial on its own initiative, which has had a great negative impact in practice. First of all, this does not conform to the principle of separation of prosecution and trial. The court should not seek disputes ex officio and take the initiative to bring a lawsuit. At present, the trend of trial reform is to weaken the authority of judges, that is, to weaken the authority of courts to intervene in litigation, to emphasize the neutrality of judges, and to highlight the principle of equal confrontation in litigation structure. The court initiated a retrial on its own initiative, which obviously violated the position of the court as an intermediate referee, resulting in an embarrassing situation of "private prosecution and self-examination"; Secondly, it is an improper intervention in the disposition right of the parties. In civil litigation, it is the requirement for the parties to enjoy and independently exercise the right to dispose of their cases. Applying for retrial is an important litigation right of the parties. The parties can choose their own ways and means to resolve disputes within the scope permitted by law, and whether to give up their rights and interests is mainly up to the parties themselves to judge whether it is in their best interests to start the retrial procedure.
The filing of a civil lawsuit should be decided by the parties, and the court should not take the initiative to seek to solve the dispute. This is not only determined by the nature of civil cases, but also the inevitable requirement of litigation justice. Only by adhering to the principle of non-prosecution and ignoring the initiation of proceedings can the court maintain its fair and neutral social image. If the court takes the initiative and tries to actively find and solve the disputes that appear and potential in the society, it will inevitably involve itself in the conflicts of interests between the parties, and it will be difficult to maintain a fair and neutral position.
(2) limiting the scope of civil protest by the procuratorate.
Article 185 of the Civil Procedure Law stipulates that the procuratorate may lodge a protest against the court's effective judgment. The design of civil protest system is undoubtedly good from the starting point, in order to achieve justice, but the exercise of procuratorial supervision power can not be unrestricted, otherwise it will encourage the abuse of another power. The procuratorial organ's protest against the effective judgment with the public power of the state undoubtedly supports one party and opposes the other party on behalf of the state, which undermines the principle of equal litigation status of the parties in civil litigation, makes the power of the parties seeking public power relief unbalanced, and violates the purpose of giving the procuratorial organ the right to protest in civil litigation by legislation and the original intention of the procuratorial organ to pursue and maintain judicial justice through civil protest.
Practice shows that most of the cases protested by the procuratorate originated from the application of the parties, and few cases were discovered by the procuratorate and protested by itself. Without the application of the parties, the procuratorate's protest may be inconsistent with the party's intention, which violates the provisions of the Civil Procedure Law that the parties have the right to dispose of litigation rights according to law. Therefore, only when the effective judgment results endanger the national interests, social public interests or the interests of the third party, the parties lack civil capacity, and their legal representatives are lazy in performing their duties, resulting in serious damage to the civil rights and interests of the parties, should the procuratorial organs be restricted from lodging protests, so as to avoid damaging the litigation rights of the parties and improperly interfering with the judicial power of the court.
(three) to make up for the defects of the reasons for retrial
If there is enough new evidence to overturn the original judgment or ruling, should the parties be allowed to apply for retrial? Many countries in the civil law system have similar provisions on taking the discovered new evidence as the cause of retrial, because it is undoubtedly in line with the basic requirements of objective truth and substantive justice to re-identify the facts of the case through the retrial of new evidence, but if the new evidence is accepted as the cause of retrial without restriction, it will inevitably have a greater impact on the res judicata of the effective judgment.
Whether there is new evidence enough to overturn the original judgment or ruling can be used as a condition for the parties to apply for retrial, which cannot be generalized and should be treated differently. As long as there is new evidence enough to overturn the original judgment or ruling, there is no need for retrial; Nor can new evidence be used to overturn the original judgment or ruling. The former is obviously not conducive to maintaining the authority of the judgment, but also violates the principle of litigation economy, which is easy to cause the parties to entangle the lawsuit; The latter ignores some objective conditions in judicial practice, such as important evidence being possessed by others or being unavailable to the other party.
The legislation of many countries in the civil law system has made quite strict restrictions on the types or applicable conditions of new evidence as the cause of retrial, such as Germany, France and Italy, and limited the new evidence to specific documentary evidence or proof. Different from civil law countries, the United States emphasizes the subjective state of the new evidence as the reason for retrial, that is, whether the parties paid enough attention to the evidence in the original trial. Therefore, China's civil procedure law should learn from and limit the scope of new evidence to show the seriousness of retrial procedure and avoid starting retrial procedure too casually.
Third, the conclusion
In the litigation system, the role of the disposition right of the parties makes it possible for the parties to compete with the judicial power of the court. Only by implementing the principle of disposition of the parties can the litigation rights of the parties be fully guaranteed, so that civil disputes can be solved fairly and the justice of civil litigation can be reflected. China's civil retrial procedure should respect the right of civil disposition, and at the same time, it should also impose necessary restrictions to limit its exercise within the scope prescribed by law. Generally speaking, the retrial procedure pays attention to protecting the disposition right of the parties, but the strength and intensity of protection need to be strengthened and improved in order to better implement the retrial procedure.
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