The institute of retrial

Abstract

The aim and object of this thesis is to carry out an in-depth study on this intriguing institute, which is truly extraordinary in every sense of the word. Starting from its magnificent emergence in the Roman Era, continuing then its turbulent evolution throughout the Middle Ages, particularly in French and Italian Law, and finally reaching its pinnacle in modem times, retrial fought its way through the contentions between two giants; legal stability and the obtainment of justice. The remedy of retrial is a constant reminder of what remains as the eternal quandary within the realm of Civil Procedure; that is, whether to opt for a system that aspires for certainty but that is exceptionally unjust in the process of such undertaking, or else for a system that seeks to accommodate justice in all ways, with legal uncertainty as a derivative. Although the solution is far from apparent, in our day and age Courts of Law have strove to attain a more substantive justice, disregarding at times solemnity of procedure and draconian formalities. In the light of all this, however, retrial presents itself as a dark cloud in an otherwise clear horizon, obliging the Courts, in both past and present, to award it the strictest of interpretations. It is with this in mind that I took on the task of dissecting the limited number of provisions present within our Code of Organisation and Civil Procedure and of referring to the vast if not infinite jurisprudence on the subject. Throughout my analysis, I have sought to bring to the reader's attention the many controversies that survive within this institute, seeking to present my thoughts and reflections where useful and to propose any possible amendments to the law where required.