重审后又上诉原二审合议庭人员回避问题的研究—对民诉解释中关于重审后又上诉原合议庭人员不必回避质疑.pdfVIP

Open Journal of Legal Science 法学, 2017, 5(1), 1-7 Published Online January 2017 in Hans. /journal/ojls /10.12677/ojls.2017.51001 Avoidance Study of the Original Second Trial Panel —Doubts about the Judicial Interpretation Provision That the Original Second Trial Panel Shall Not Avoid Liubing Chen Civil Law and Business Law School, China University of Political Science and Law, Beijing th rd th Received: Dec. 24 , 2016; accepted: Jan. 3 , 2017; published: Jan. 10 , 2017 Copyright © 2017 by author and Hans Publishers Inc. This work is licensed under the Creative Commons Attribution International License (CC BY). /licenses/by/4.0/ Open Access Abstract In the Judicial Interpretation of the Civil Procedure Law of the Supreme People’s Court, article 45 (2) stipulates that the members of the original second trial collegial panel shall not be restricted from the avoidance when they return to retrial and then once again enter a second trial. Such sti- pulation lacks grounds in legality and also rationality. In reality, legitimate rights and interests of a party could suffer damage, also it is uncovered that dependence of retrial panel may be affected and the other party could exploit this system leak. By trying to explore the legislative background of this provision, it can be found that this is closely related to the understanding of effect to the neutrality of the panel of second trial and is also closely related to our trial organization. At present, the legal provisions should be improved through appropriate forms, the avoidance sys- tem should be properly implemented, and the reform and prevention of the related supporting systems of the second i