Retrial Procuratorial Recommendation: a New Way of Procuratorial Supervision on Civil Action
|School||Southwest University of Political Science|
|Course||Civil Procedure Law|
|Keywords||Civil Procuratorial System Civil Protest Retrial ProcuratoiralRecommendations Reform on the Starting Way of the Retrial Reform on Civil andAdministrative Procuratoiral System|
China’s civil procuratoiral system is a procuratorial system with Chinese characteirstics,in which the procuratoiral protest by the procuratoiral organs is not only a main way of thecivil procuratoiral supervision and also has been in the dominant position in the civilprocuratoiral supervision. However, with the development of procuratoiral practice, RetiralProcuratoiral Recommendation and other civil new methods for civil procuratoiralsupervision are not only developed in the judicial practice, but also the Civil Procedure Law(Dratf) considered by the National People’s Congress in2011included the RetiralProcuratoiral Recommendation into the dratf and the Civil Procedure Law was adopted inAugust，2012atfer three reviews. Procuratoiral Recommendation is legalized in the revisedCivil Procedure Law, which means that the procuratoiral organs file a written proposal for thecases which meet the retiral with the courts, namely, Retiral Procuratoiral Recommendation.However, from the perspective of the existing procuratoiral supervision, the sense of RetrialProcuratoiral Recommendation, a new procuratorial supervision way and the position of theway in the future civil procuratoiral supervision require seirous discussions and researches.This paper，in combination with the related provisions in the newly revised Civil ProcedureLaw and on the basis of research on some business data in the procuratoiral system in theprocuratoiral supervision judicial practice, researches some realistic problems faced by RetiralProcuratoiral Recommendation and the theoretical difficulties from the perspective ofcomparative analysis as well as the problems faced by the procuratoiral organs in their civilprocuratoiral supervision by Retiral Procuratorial Recommendation, protest and other ways,demonstrates the possibility and rationality of Retrial Procuratoiral Recommendation as a wayof civil and administrative procuratoiral supervision in place of protest and eventuallyabolishes the function of the procuratoiral organs to conduct civil procuratoiral supervision onthe civil action airsing from pirvate disputes and then puts forward the point of reconstructionof the starting way of China’s civil retiral.This paper consists of introduction, body and conclusion, with the body seven chapters.Chapter One introduces China’s civil procuratoiral supervision system. The legislationon China’s civil procuratoiral system has had great changes from the founding of China tonow and in order to clear the development of the system, this chapter focuses on introducing the evolution and the trend of development of China’s civil procuratoiral supervision systemand also reviews vairous supervision ways including Retiral Procuratoiral Recommendationevolving from the judicial practiceChapter Two discusses the foreign civil procuratoiral system. Since there is greatdifference between China’s civil procuratoiral system and foreign legislation, this chapterreviews foreign legislation, hoping to clear the referential meaning for the civil procuratorialsystem in China and focuses on the comparison and analysis of the contents and performancefunction of the civil procuratorial system in the continental law system, Anglo-American lawsystem, socialist countries led by the former Soviet Union and China.Chapter Three elaborates the Civil Procedure Law newly revised in2012andProcuratoiral Recommendation. This chapter, atfer thorough reading of the related clauses oncivil procuratoiral supervision in the newly revised Civil Procedure Law and in combinationwith the procuratoiral practice, elaborates the deifnition and classiifcation of the civilprocuratoiral recommendations, with special attention given to Retiral ProcuratoiralRecommendation, a new way of the civil procuratoiral supervision.Chapter Four discusses the application and analysis of Retiral ProcuratoiralRecommendation in the judicial practice. This chapter analyzes the application of RetiralProcuratoiral Recommendation of the country and areas in recent ifve years in the judicialpractice, paving a way for the analysis in the next chapter.Chapter Five analyzes the problems of Retiral Procuratoiral Recommendation. Thischapter, in combination with the empirical analysis of the realistic problems and problems insystem of Retiral Procuratoiral Recommendation and indicates the institutional defects of thesystem caused by the problems in China’s civil procuratoiral supervision system and alsopoints out the problems in the civil procuratoiral supervision team of the procuratoiral organs.Chapter Six discusses the necessity for the existence of civil and administrativeprocuratoiral supervision. This chapter，on the basis of the problems in Chapter Five, analyzesthe defects of China’s civil procuratoiral supervision system and comes to the conclusion thatChina’s civil procuratoiral system requires reform, notwithstanding the necessity of theexistence of the supervision at the moment.Chapter Seven elaborates the reform on the retiral starting system and civil procuratoiralsupervision system. This chapter endeavors to solve the problems in Retiral ProcuratoiralRecommendation and even the whole civil procuratoiral supervision system according to the elaborations in the said six chapters and proposes to reform the starting way of the retiral incombination with the judicial practice and then to reform the civil procuratoiral system.