我国民事再审程序启动主体之重构
发布时间：2019-05-07 19:54
【摘要】：如果说司法是提供正义的过程，那么再审就是用正义准绳对业已确定的裁判进行最后的测试，经过此过程，使偏离正义准绳的裁判得以校正。民事再审程序是通过司法途径对当事人进行权利救济的唯一通道，由于程序的特殊性，所以在我国民事诉讼法领域起着至关重要的作用。案件的当事人之所以启动再审程序，是为了通过撤销原来错误的生效判决,以实现自身合理的诉讼利益。而法院和检察院启动再审程序是为了维护法律的公平正义，保障社会的正常秩序。民事诉讼法规定，再审程序的启动主体有民事案件的当事人、人民检察院和人民法院，当事人欲启动再审须先提出再审申请。而当事人的再审申请权并未转化为再审诉权，司法机关启动再审几乎不受限制，这样的制度设计存在许多缺陷。正是由于制度设计的缺陷，使得近年来立法、司法部门在再审制度的改革中，并未取得预期的效果。基于这样的现实，本文试图围绕各启动主体的现状展开讨论，以期促进当下再审制度的改革。除引言和结语外，本文分为以下四部分： 第一部分，概括性地叙述了我国民事再审程序启动主体制度。主要论述再审程序启动主体的历史渊源、基本概念和法理基础。第二部分，对域外再审程序启动主体的进行了介绍。主要考察了世界主要国家关于再审启动的规定，力求能够对完善我国再审启动主体制度起到借鉴作用。第三部分，总结我国现行再审就各启动主体方面存在的问题。公权力发动再审几乎不受限制，挤占了当事人的权利空间，致使当事人在面对自身权利的时候处于从属地位。第四部分，笔者对完善民事再审程序启动主体制度提出了自己的设想。即在理念方面，由职权主义改为当事人主义，，在指导思想上，由“有错必纠”改为“依法纠错”；只有在正确的理念指引下，才能形成合理的制度，同样地，只有合理的制度才能有效地解决法律运行中的实际问题。在制度层面，包括强化当事人再审诉权，限制检察院启动再审，取消法院依职权再审的决定。
[Abstract]:If justice is a process of providing justice, then retrial is the final test of a certain judge with the criterion of justice, through which the judge who deviates from the criterion of justice can be corrected. The civil retrial procedure is the only way to remedy the rights of the parties through the judicial approach. Because of the particularity of the procedure, it plays a vital role in the field of civil procedural law of our country. The reason why the parties to the case initiate the retrial procedure is to realize their own reasonable interests by revoking the original erroneous effective judgment. The court and procuratorate start the retrial procedure in order to safeguard the fairness and justice of the law and ensure the normal order of the society. According to the Civil procedure Law, the initiating subject of the retrial procedure is the party to the civil case, the people's procuratorate and the people's court, and the parties must first apply for retrial to initiate the retrial. But the litigants' right of retrial application has not been transformed into the right of retrial, the judicial organ starts the retrial almost unrestricted, this kind of system design has many defects. It is because of the defects of the system design that in recent years the legislation and judicial department have not achieved the expected results in the reform of the retrial system. Based on this reality, this paper attempts to discuss the status quo of each priming body in order to promote the reform of the present retrial system. In addition to the introduction and conclusion, this paper is divided into the following four parts: the first part, a general description of our country's civil retrial procedure start-up subject system. This paper mainly discusses the historical origin, basic concept and legal basis of the starting subject of retrial procedure. In the second part, the author introduces the main body of the extra-territorial retrial procedure. This paper mainly investigates the regulations of retrial start in the world, and tries to play a reference role in perfecting the system of retrial initiation subject in our country. The third part, summarizes the current retrial in China on the aspects of the main start-up problems. The public power starts the retrial almost unrestricted, overrides the litigant's right space, causes the party to be in the subordinate position when facing the own right. In the fourth part, the author puts forward his own idea to perfect the starting subject system of civil retrial procedure. That is to say, in terms of concept, the doctrine of duty is changed to party doctrine, and the guiding ideology is changed from "correction of mistakes" to "correction of errors according to law". Only under the guidance of the correct idea can a reasonable system be formed. Similarly, only a reasonable system can effectively solve the practical problems in the operation of the law. At the system level, it includes strengthening the litigant's right of retrial, restricting the procuratorate from initiating the retrial and cancelling the court's decision of retrial ex officio.
【学位授予单位】：江西师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
本文编号：2471341
[Abstract]:If justice is a process of providing justice, then retrial is the final test of a certain judge with the criterion of justice, through which the judge who deviates from the criterion of justice can be corrected. The civil retrial procedure is the only way to remedy the rights of the parties through the judicial approach. Because of the particularity of the procedure, it plays a vital role in the field of civil procedural law of our country. The reason why the parties to the case initiate the retrial procedure is to realize their own reasonable interests by revoking the original erroneous effective judgment. The court and procuratorate start the retrial procedure in order to safeguard the fairness and justice of the law and ensure the normal order of the society. According to the Civil procedure Law, the initiating subject of the retrial procedure is the party to the civil case, the people's procuratorate and the people's court, and the parties must first apply for retrial to initiate the retrial. But the litigants' right of retrial application has not been transformed into the right of retrial, the judicial organ starts the retrial almost unrestricted, this kind of system design has many defects. It is because of the defects of the system design that in recent years the legislation and judicial department have not achieved the expected results in the reform of the retrial system. Based on this reality, this paper attempts to discuss the status quo of each priming body in order to promote the reform of the present retrial system. In addition to the introduction and conclusion, this paper is divided into the following four parts: the first part, a general description of our country's civil retrial procedure start-up subject system. This paper mainly discusses the historical origin, basic concept and legal basis of the starting subject of retrial procedure. In the second part, the author introduces the main body of the extra-territorial retrial procedure. This paper mainly investigates the regulations of retrial start in the world, and tries to play a reference role in perfecting the system of retrial initiation subject in our country. The third part, summarizes the current retrial in China on the aspects of the main start-up problems. The public power starts the retrial almost unrestricted, overrides the litigant's right space, causes the party to be in the subordinate position when facing the own right. In the fourth part, the author puts forward his own idea to perfect the starting subject system of civil retrial procedure. That is to say, in terms of concept, the doctrine of duty is changed to party doctrine, and the guiding ideology is changed from "correction of mistakes" to "correction of errors according to law". Only under the guidance of the correct idea can a reasonable system be formed. Similarly, only a reasonable system can effectively solve the practical problems in the operation of the law. At the system level, it includes strengthening the litigant's right of retrial, restricting the procuratorate from initiating the retrial and cancelling the court's decision of retrial ex officio.
【学位授予单位】：江西师范大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.1
【参考文献】
相关期刊论文 前1条
1 孙祥壮;;民事再审制度的关键词及改革建言[J];人民司法;2006年05期
本文编号：2471341
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