중국의 재심절차(再審節次)에 관한 연구

The reopening of the proceeding(retrial) is a device for relief when the former judgment have too grave a defect to be enforced upon parties. When a judgment is rendered and fixed, any further arguments by parties upon the same merits is banned by the doctrine of Res Judicata notwithstanding it has some minor defects. But when it comes to serious errors, the judgment must be repealed and the former trial procedure must be resumed to relieve the aggrieved litigants. Chinese Civil Procedure Law is based upon the socialistic civil procedure principles originated from the former USSR’s litigation system, hence, the grounds for retrial is very generous and, what is more, the courts and the prosecutory authorities can initiate the retrials which is unfamiliar and even embarrassing to us. There was a revision of Chinese Civil Procedure Law focused on the retrial system in 2007 but the reform was, not only to us but also to the domestic scholars, by no means a satisfactory one. The retrial grounds is still to generous and the courts and the prosecutory authorities remains as retrial initiators. They are making another attempt for an overall reform of their Civil Procedure system nowadays. The aims of the revision, undoubtedly, will be centered to the adjustment their litigation system to their rapidly growing market economy. But the result, the extent of the reform, cannot be forecasted with ease due to the political environment. The enactments or revisions of formal laws in China frequently confronts with difficult situations derived from the political principles. Notwithstanding their substantially marketized economy, China still stick to socialism politically and this always affects adversely on the attempt to change their system. But in reforming the retrial system, there must be a serious consideration upon at least following two points. firstly, the role of the courts and the prosecutory authorities in initiating the retrials must be, if not be possible to abolish, reasonably readjusted and the initiative have to be given to litigants. Secondly, the overgenerous current retrial grounds must be substantially reduced and, thus, the doctrine of Res Judicata should be established. If the drastic abridgment of retrial grounds should incur too serious agitations among the people, the establishment of the doctrine of supplement can be considered as its alternative.