【作者】 栾林林；

【导师】 车传波；

【作者基本信息】 吉林大学 ， 诉讼法学， 2010， 硕士

【摘要】 本文通过对我国民事诉讼法现行立法中复议制度进行梳理和分析,认为民事诉讼中的复议在我国法中规定极其粗陋,难以应用于实践,无法满足对民事诉讼中大量的、庞杂的程序事项救济的需求。从程序性权利救济和权力制约的功能定位出发,以实现程序正义和程序的独立价值为目的,本文借鉴大陆法系的抗告制度和英美法系的中间上诉制度,并进行了比较法研究,提出按照程序性裁判的形态要求构建我国的民事诉讼复议制度。在明确我国民事复议制度改革思路的基础上,厘清了复议制度与程序性上诉的分工,划分了复议的适用范围,进而对民事诉讼复议制度的复议事项、复议主体、复议审查程序、举证责任、复议结论效力等具体规则进行了论证和构建。更多还原

【Abstract】 The review system in China’s Civil Procedure Law is so brief that review of the procedural matters and review system has been extremely limited in civil trial. Review the current civil legislation, in terms of ideas, legislative and judicial practice, there are obvious shortcomings, leading to reconsideration of this important right of the remedies in name only and not playing its due role. There are four chapters in the paper , described as follows:In the first chapter "Analysis of the existing civil review system",through the analysis of legislation, the current civil trial, wo can see the existence of the following problems: First, there is a vacuum in the remedies of procedural rights; second, the judge discretion is too large to form a judicial constraints; Third, review program is not established and become a mere formality, these problems hinder the function of civil trial review .The implementation of the revised Code of Civil Procedure for review have been refined and perfected in 2007 , but the trial review didn’t get due attention, although the existing law on the implementation of the rule review may be used as reference, to a certain extent, represents the needs of the system in the judicial and law enforcement practice in the moment, but can not be directly applied. Because the proceedings in relation to the implementation of procedures, litigation of the most concentrated expression of relief on the procedural rights of the parties should take the road of justice, in accordance with the rights of the functional positioning of relief to design rules. In the review system, functional orientation, the right to relief is the basic theory of law on behalf of the current mainstream thinking, the party hopes to protect the rights of jurisdiction or supervision of self-correction, it is better to give the parties the right to supervise the judicial proceedings stronger .In chapter II"the basic theory of the civil review system", this paper summarized as follows: the right to procedural relief, the power constraints, the independent value of procedural justice. Procedural rights theory can be described as a relief, in the trial proceedings, interested parties or the litigation related to the right to be infringed or face the judges, giving the parties a means of relief - the right to proceedings referred to the context of interactions between the parties and the courts made by only contain a link to the Court’s procedural rights . Restriction of power refers to the illegal exercise of the court or a judge of procedural justice can monitor and restrict the right of the parties. Judicial power as a public authority, there are two kinds of constraints model, first the power constraints of power, and second, the right to restrict the power. In the increasingly focus on democracy and procedural justice today, in order to allow justice to be seen, giving citizens more rights to protect their rights and remedies, restricting public authority more and more important, in this sense, the right to relief is also of power constraints exist. The independent value of procedural justice is to be realized in the legal process itself, the value of procedural justice proceedings are intrinsic qualities, which is independent of the intrinsic qualities rather than being dependent on instrumental program. This paper argues that reconsideration of the system should be based on procedural decision forms, review the judge’s judicial conduct.Looking outside the law review as a concept within the framework of civil law in China is unique, both common law and civil law, did not create a separate "review" the concept of the program relief to American law and judicial Review placed within the framework of civil appeals, Germany, France, Japan and France for the procedural system achieve the establishment of specialized programs referee. No matter what form to achieve a procedural decision, all referees undertake programs of relief and procedural functions. In comparison, Germany and Japan Kanggu system are similar as our review system in a larger sense, we can serve as a review of China’s civil trial procedural decision forms of reference.In chapter III" Reform of the civil review system", this paper argues that a review of the relief stage of the proceedings, with the value of an independent appeal system, as well as procedural relief features, review and appeal system must determine a reasonable division of labor. In the object, this paper will address the procedural matters of the award is divided into two categories, the finality of decisions and interlocutory decisions, finality of the end of first instance ruled that effectiveness of the procedures took place , should be given a chance to appeal the same ,The middle of first instance ruled that the procedures for procedural matters among the ruling, if the direct appeal, will inevitably lead to delays and litigation over the first trial a waste of resources, it will be the object of review into the middle of decision. According to this classification, is inadmissible, rejected the prosecution, allowed to withdraw his claim into the end of the proceedings of appeal ruled that the existing object. As for the reconsideration of the object, this article may appear in the trial of civil rights and procedures of litigation to sort out the dispute, prioritization, appropriate to expand the scope of review system object. This paper argues that the object should be added to review the scope of the matters are: the court allowed them to postpone the cost of litigation ,the parties apply for a waiver or preservation of evidence, for identification, re-investigation, identification, inquests, applications for extension of the burden of proof to apply for a witness to testify in court dismissed the case, as well as the terms of reference adopted by the court to suspend the proceedings, the court acts specified period.In chapter IV "Construction of Civil Procedure Review System "Reconsideration expanding to the trial is only the "quantity" of the expansion, but also need to review the rules of procedure for "quality" of the upgrading and transformation, this paper advocates the conduct of judges of procedural justice for judicial review of the process of building, in order to procedural referee’s manner to review. In the review of the main, the paper advocated an increase litigation as a reconsideration of the main agents and stakeholders to exclude court mandate to bring the power of review. Reconsideration of the Court on admissibility in this paper that the application for reconsideration by the trial court accepted, such as the trial court affirmed the grounds for reconsideration may be self-correcting, such as the grounds for denial of reconsideration, should be left to a higher court to review make a reconsideration decision. Reconsideration of the conditions of admissibility as follows: reconsideration of the applicant suitable grid, in the statutory deadline for application for reconsideration, the reconsideration review applicants should provide clear reasons and facts. Review organizations should review the composition of a panel of the court separately to better ensure that procedural justice, the implementor independent value. In the allocation of the burden of proof in this paper do not support the principle "who advocates, who the burden of proof", that can refer to the administrative reconsideration of the principle of the burden of proof from the original award or a decision made by the Full Court of the trial on their judicial acts of bear the burden of proof and the presentation of the legality of the obligation, the object is essentially a civil review by the applicant and the application for reconsideration of the trial , regarding the trial evidence, it’s more fair and reasonable for the trial Court bearing the burden of proof . Review to determine the conclusions made, it should be made res judicata, the procedural matters of the review are no longer as objects after review, but still within the framework of the supervision system for retrial.更多还原