论民事发回重审的应有程序违法事由

On the Proper Reason of Procedure Violation for Civil Retrial

现行法律中民事发回重审的程序违法事由存在不足,导致司法实践中对具体程序违法情形的识别存在困难。为维护民事诉讼的安定性,减少对发回重审的滥用,应从对诉讼原则的违背与对当事人利益的损害两个维度出发,重新构建发回重审的程序违法事由。违背当事人平等原则与违背当事人法定参与原则的程序违法情形需要发回重审,对不影响当事人实体权益及审级利益的其他程序违法情形则不需要发回重审。

In the current law,there are problems in the reason of procedure violation for civil retrial,which result in difficulties in the identification of specific procedure violations in judicial practice.In order to maintain the stability of civil litigation and reduce the abuse of retrial,it is necessary to re-establish the reason of procedure violation for the retrial concerning two dimensions,which are the violation of the principle of litigation and the damage to the interests of the parties.The procedure violations that breach the principle of equality of the parties and the principle of participation of the parties will lead to retrials,and other flaws that do not affect the substantive rights and interests at the trial level of the parties should not lead to retrials.