删而未除的“管辖错误”再审——基于2013年以来最高人民法院裁定书的分析

Retrial Based on the Cause of "Jurisdictional Mistakes" :Deleted in Law,but Not Abolished in Practice

2012年民事诉讼法删除了"违反法律规定,管辖错误的"这一再审事由。人们普遍认为,新法实施后,当事人已不能针对管辖权异议的终审裁定申请再审。但在新法实施后最高人民法院处理再审案件的诉讼实务中,当事人以"管辖错误"为由申请再审和法院对"管辖错误"进行再审并未真正消除。最高人民法院依然保留针对"管辖错误"的再审肯定是经过深思熟虑的。保留这类再审的积极意义在于:有助于消除当事人对地方保护主义的担忧和防范可能发生的地方保护,有助于保障司法公正,有助于解决管辖规则适用中的疑难问题和统一各法院关于管辖规则的理解与适用;但保留再审也会同诉讼效率的要求相抵牾。为平衡司法公正与诉讼效率的关系,需要从三个方面优化处理"管辖错误"的再审程序。

The Chinese Civil Procedure Law （2012） deleted the provision on retrial based on the cause of ＂jurisdictional mistakes which violate the law＂. Consequently, people generally believe that, after the enforcement of the new law, a party could no longer apply for retrial against a final rul- ing on jurisdictional objections. However, the practice of the Supreme People＇ s Court during the two years following the enforcement of the Law shows that parties have continued to apply for retrial based on the cause of ＂jurisdictional mistakes＂, and the court has continued to hear such retrial cases. There are sound reasons for the Supreme People＇ s Court to do so, that is, retaining such retrial cause has the advantages of dispelling parties＇ concerns about local protectionism, preventing the occur- rence of local protectionism, ensuring judicial fairness, solving difficult problems arising from the ap- plication of rules on jurisdiction, and unifying the understanding and application of the rules on juris- diction by different courts. However, retaining this type of retrial has the disadvantage of reducing the efficiency of litigation. In order to strike a balance between judicial fairness and judicial efficiency, China should improve the system of retrial based on the cause of ＂jurisdictional mistakes＂ by taking three different approaches.