1672-8505

CN 51-1675/C

民事诉讼发回重审制度之完善

On Reform of the System of Civil Retrial

  • 摘要: 2012年修改后的《民事诉讼法》对发回重审的实体事由进行区别对待,并进一步限制了发回重审的程序违法事由。对修改后的民事发回重审制度进行审视,不难发现其依然难脱“重实体、轻程序”之窠臼;而且,该制度功能异化之弊端未有改观。《民事诉讼法》的修改未能从根本上革除民事诉讼发回重审制度之痼疾的原因有二:一是民事诉讼发回重审制度的立法价值有失偏颇;二是民事诉讼法律责任制度不健全且实现不畅。因此,在立法上重塑民事诉讼发回重审制度之诉讼公正理念、强化程序违法之重审事由,完善民事诉讼法律责任制度体系、明确发回重审之诉讼法律责任性质,不失为完善民事诉讼发回重审制度的有效路径。

     

    Abstract: It is known that the Civil Law of the People's Republic of China was revised in 2012.This work treats the entity grounds of civil retrial differently. It limits its illegal grounds too. Examined this work, we find that the system of civil retrial is keeping preference of Substantiality to Procedure stereotype now.A good looing into the Law, the disadvantages of its functionality can be easily seen.That is to say, this revision can't get rid of the drawbacks of civil retrial system altogether.There are two reasons for this issue. Firstly, the value of the system of civil retrial can't be clarified by Legislators. Secondly, there are many problems of the civil legal liability. Therefore, reshaping the justice concept for the civil retrial system, strengthening the subject with procedure illegal for retrial, improving the system of civil legal liability system is a valid path to improve the system of civil retrial.

     

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