On the “Dualism” of Civil Procedure Defects and the Way to Cure
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The defect of civil procedure is a kind of destruction to the balance of justice in civil procedure. In the field of the joint effect of judicial power and litigation right, the adequacy of the party’s procedural defect remedy right is particularly necessary to protect the judicial power to heal procedural defects and promote the effective operation of civil litigation activities. Due to the unitary tendency of the theoretical and practical circles on the types of procedural defects, the “dualization” of procedural defects has only formal significance, it is difficult to resolve the parties’ doubts and dissatisfaction, and it really affects judicial justice and legal authority. Based on whether procedural flaws have a substantial impact on the judgment results, the procedural flaws are classified as “dual” of minor procedural flaws and major procedural flaws, and different treatment paths are designed: For minor procedural flaws, the right of party opposition is established Centered relief mechanism: Establish a dialogue mechanism, clarify the scope of dissent, and the operation of the procedure of right relief, resulting in the effects of invalid procedures, effective procedures, and self-healing procedures. For major procedural defects, the establishment of the party’s will be established and the court will review. The level of supervision is the core relief mechanism, detailing the reasons for returning to retrial, giving the parties the right to choose a procedure, establishing a two-way restraint mechanism, and strengthening supervision and management, so that procedural defects can be cured.
Abstract
The defect of civil procedure is a kind of destruction to the balance of justice in civil procedure. In the field of the joint effect of judicial power and litigation right, the adequacy of the party’s procedural defect remedy right is particularly necessary to protect the judicial power to heal procedural defects and promote the effective operation of civil litigation activities. Due to the unitary tendency of the theoretical and practical circles on the types of procedural defects, the “dualization” of procedural defects has only formal significance, it is difficult to resolve the parties’ doubts and dissatisfaction, and it really affects judicial justice and legal authority. Based on whether procedural flaws have a substantial impact on the judgment results, the procedural flaws are classified as “dual” of minor procedural flaws and major procedural flaws, and different treatment paths are designed: For minor procedural flaws, the right of party opposition is established Centered relief mechanism: Establish a dialogue mechanism, clarify the scope of dissent, and the operation of the procedure of right relief, resulting in the effects of invalid procedures, effective procedures, and self-healing procedures. For major procedural defects, the establishment of the party’s will be established and the court will review. The level of supervision is the core relief mechanism, detailing the reasons for returning to retrial, giving the parties the right to choose a procedure, establishing a two-way restraint mechanism, and strengthening supervision and management, so that procedural defects can be cured.
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