“再審之訴”的理論悖論與實踐困境──申請再審權性質重述

The Theory Paradox and the Practice Dilemma of “Litigation of Retrial” : A Restatement on the Characteristic of the Right to Apply Retrial

對審判監督程序進行“訴權化改造”，構建民事“再審之訴”的觀點在理論與實務界獲得了高度的共識。但是，再審之訴所隱含的理論悖論沒有得到正視；經歷兩度修改的審判監督程序在實踐中幷沒有達到修法預期，依舊深陷再審難與再審濫的泥潭。與訴權的絕對性、不能附加條件的基本權利屬性不同，申請再審權在性質上屬￿訴訟權利，且不同于上訴等基礎性程序異議權，是一種非常異議權。該屬性與既判力原理、再審程序補救功能具有高度的匹配性，應當以此爲法理基礎重述再審制度構建原理。 There is a consensus, both in theory and practice field, that is: the right to apply retrial is the right of action, and our trial supervision program should be transformed to “litigation of retrial”. This view has affect­ed the Civil Procedure Amendment Act. However, the implicit paradox of the retrial has not been noticed. The trial supervision procedures, after two amendments, still mire deeply in retrial difficult and abuse. Actu­ally, the right to apply for retrial is different from the right of actio. The right of actio is an absolute, no-con­ditional and fundamental right. But the right to apply for retrial is a right of procedure dissent. And it is also different from the appeal and other basic procedure dissent right, for it is a unusual dissent right. This char­acteristic matches the theory of res judicata and the additional principle of retrial very well. It should be the theoretical basis for restating the retrial procedure. The purpose of retrial is to repair the legal justice. There­fore, it has the content of public interest, which requires limiting the parties disposition right, and distinguish with the re-started original case proceedings.

There is a consensus, both in theory and practice field, that is: the right to apply retrial is the right of action, and our trial supervision program should be transformed to “litigation of retrial”. This view has affect­ed the Civil Procedure Amendment Act. However, the implicit paradox of the retrial has not been noticed. The trial supervision procedures, after two amendments, still mire deeply in retrial difficult and abuse. Actu­ally, the right to apply for retrial is different from the right of actio. The right of actio is an absolute, no-con­ditional and fundamental right. But the right to apply for retrial is a right of procedure dissent. And it is also different from the appeal and other basic procedure dissent right, for it is a unusual dissent right. This char­acteristic matches the theory of res judicata and the additional principle of retrial very well. It should be the theoretical basis for restating the retrial procedure. The purpose of retrial is to repair the legal justice. There­fore, it has the content of public interest, which requires limiting the parties disposition right, and distinguish with the re-started original case proceedings.