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On the claims trial omissions relief

Author: ZuoShu
Tutor: WangHanBin
School: Nanjing Normal University
Course: Procedural Law
Keywords: Claims trial omissions Retrial Remand Supplementary judgment
CLC: D925.1
Type: Master's thesis
Year: 2011
Downloads: 42
Quote: 0
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Abstract

The claims of the parties before the court and hope to get a decision support entity requests the missing part of the claim the court during the trial due to reality the complexity of the legal relationship of the parties claim is often reflected in the complaint of the composite form, which can easily generated lacuna, claims trial omissions. Specifically, claims trial omissions may occur in the course of a hearing, may also appear in the decision process, may also be two stages are omitted, the trial without sentence \. Claims is different from procedural matters or other entity matters, the claim is also different from the trial omission omission of these matters. These missing claims already pending litigation request from the surface, are formally independent of each other and can be separated, but in essence there is a certain correlation between them, that content has some connection and in view of the close contact and mutual influence in varying degrees, the claims of trial omissions can be divided into two categories: the first case, the demands of leakage has been contracted demands close contact and mutual influence on the correct identification of the respective conclusions, demands such as the need for joint action in the omission of any party is bound to affect the identification of the facts of the whole case, so the omission of the former will cause the original judgment the facts clearly identify the error making judgment Conclusion error; second case, the leakage of demands contact has been contracted demands are not very close, mutual influence the degree of depth, missing part of the common aspirations of the parties in the case of ordinary joint action does not materially affect the other party demands correctly identified, but the court based on the similarity or litigation efficiency considerations combine them tried together, the omission of the former and not from materially affect the correct identification of the conclusions of the original judgment, only make the original trial process incomplete findings of fact and incomplete, so that the judgment conclusion incomplete, which is relatively is expected to complete the target judgment, and can not say that the original judgment was wrong. Claims trial missing these different situations, we can be found from the judgment Zhu Wen or after review and relief. Visits by China's Civil Procedure Law, the lawsuit requests trial omissions were provided for remand and retrial to be relief should be affirmed. But claims trial omissions different situations without making a distinction, so relief is not comprehensive. Civil law countries or regions of the proceedings to request trial omission be much more expensive than supplementary judgment relief, and not treated different circumstances, still is not comprehensive, but it also provides us with an important reference, supplementary judgment should be litigation request trial missing one of the main channels for relief. Integrated all aspects can be drawn, according to claims trial missing two different situations should be taken to different remedies: First, the omission of the claim, which would render the facts of the original bill did not clearly identify judgment wrong conclusions should be taken retrial or sent back retrial to be relief; Second, omissions demands will not lead to the the original bill facts and judgments conclusion identified wrong, but rather caused by incomplete facts, the conclusion is incomplete case judgment, we can learn from foreign experience to build a system of supplementary judgment to be relief, and set the well-established procedures, in order to achieve the full relief.

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