民事訴中監(jiān)督應(yīng)處理好三對關(guān)系

Abstract ： The research on the supervision of the process of civil lawsuit is a kind of direction which is put forward and taken into consideration in order to adapt the theory and practice. Straighten out the relations among such principles of the supervision of the process of civil lawsuit、the trial independence and the right of disposition and so forth， and the key is to establish a kind of idea that the original intention of the supervision of the process of civil lawsuit is rectify various factors which influence orderly judgment process or correct judgment results， but also can build a kind of good atmosphere.

Key words ： Three Relationships，Civil Lawsuit Supervision，the Process of Lawsuit

The supervision of the process of civil lawsuit will be introduced in the judicial practice， and it not only avoids the adverse consequences that result from the lasting wrong and embarrassing appeared by mistakes without supervision， but also can significantly reduce start frequency of the second instance and the retrial and so forth， reduce the cost， save the judicial resources. In the period of the judicial system research， we strive to explore the way which not only takes into account both supervision effect and the supervision strength， but also pays attention to enhance the enthusiasm of supervision， and grasps the appropriateness of supervision. From preliminary opinion， the research and trial of the supervision of the process of civil lawsuit can be regarded as a good theoretical exploration， and also can be regarded as a new practical measure. To be frank， three relationships should be well treated in the supervision of the process of civil lawsuit.

1.The relationship between the supervision of the process of civil lawsuit and civil prosecutorial supervision

We think， from the original idea or state， the civil prosecutorial supervision should include the supervision before lawsuit、the supervision of the process of lawsuit and after that. Obviously， the supervision of the process of civil lawsuit is part of the civil prosecutorial supervision. From natural state， especially in the current legal system and the rule of law background， in order to give full play to the role of the civil prosecutorial supervision， it is necessary to make the process of civil lawsuit supervision mature in theoretical research gradually， be sure in the legislation gradually， be demonstrated in judicial gradually.

2.The relationship between the supervision of the process of civil lawsuit and the trial independence

As for the introduction of the supervision of the process of civil lawsuit， the dispute is whether the independent value of judicial power be impacted， even damaged. Some scholars believe that in the traditional view， the supervision of the process of civil lawsuit demands the prosecutorial organs apply the supervision to the lawsuit process， and in this process， the supervision of the prosecutorial organs is a kind of invasion to litigation procedure， and also a kind of intervention and occupation for the judicial authority. This is actually a misunderstanding as for the supervision of the process of civil lawsuit. Strictly speaking， that and the supervision after the judgment results are not substantially different. We think that legislation firstly proposed and established the supervision of prosecutorial organs in the form of a protest against a judgment after lawsuit supervision， and to a large extent， this is to maintain the independent value of judge， or to respect the independent value of judge. Legislation has not currently approved the supervision of the process of civil lawsuit， and this might be in \"anxiety\" which is a subconscious、still in form of theory without the testing of judicial practice when some people balance the prosecutorial supervision and the trial independent value，and then become a kind of \"intangible\" fetter. We said， the intervention of the supervision of the process of civil lawsuit seemingly produces certain shake and influence for trial independence， actually otherwise. After all， the supervision of the process of civil lawsuit not only is to rectify various factors with the nature of the error which influence orderly judgment process or correct judgment results， but also can build a kind of good atmosphere which is good for the existence of trial independence value， and ultimately is beneficial to the continuation of life of that.

3.The relationship between the supervision of the process of civil lawsuit and the right of disposition

The understanding of the relationship， on the surface， is contradiction of existence between the right of disposition and the supervision of prosecutorial organs， and actually is disagreement between privacy and public power as to benefits balance. As far as some legal case is concerned， the parties distribute their benefits reasonably and realize the purpose of harmonious situation， respectively based on these own right of disposition. But， in order to maintain the interests of the state、social and public interests and the lawful interests of the third person， the prosecutorial organs exercise power in the way of the supervision of the process of civil lawsuit， making the stability situation that benefit from the right of disposition a \"shock\". But we recognize that， behind this kind of \"shock\"， it looks like the contradictions between private rights and public power， but is also a kind of motivation and an incentive will， and eventually make private right develop better and continue more smoothly in the restriction and the guarantee of public power.

In addition， the study of the supervision of the process of civil lawsuit involves in the way、scope of cases， the way of participation and the rights and obligations of prosecutorial organs， and these problems need to be further discussed and set up reasonably. Some scholars believe that the range of the supervision of the process of civil lawsuit by the legislation should not be limited， but should be enlarged， and its feelers should extend to all types of civil disputes. After all， the definition of the exercise area of the supervision of the process of civil lawsuit can be reflected by scope of cases， thus making the supervision spread reasonable in the reasonable framework and space. For the way of participation， we can title it as a problem of \"threshold\"， that is when prosecutorial organs carry out the supervision of the process of lawsuit， how to participate in a reasonable and effective way ， and achieve the smooth supervision. The rights of prosecutorial organs relate to the security problems when the prosecutorial organs exercise supervision.

References：

[1]Chang Yi，\"Civil Procedure Law\"，China

University of Political Science and Law Press，2008.

[2]Xu Shanghao，\"legal thinking of the supervision of the process of civil lawsuit and judicial independence\"，2009.

[3]Tang Weijian，\"on the supervision of the

process of civil lawsuit of the prosecutorial organs\"，2008.

作者簡介：李夏輝（1985- ），男，山西河津人，青島大學(xué)法學(xué)院2009級訴訟法學(xué)專業(yè)碩士研究生，任法學(xué)院研究生會秘書長。主要研究方向：民事訴訟法學(xué)。

（作者單位：青島大學(xué) 法學(xué)院）