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Research on the Civil Appellate Procedure of Our Country

Author: BiChen
Tutor: ZhangCheng
School: Tsinghua University
Course: Legal
Keywords: Civil Litigation Appellate Procedure Justice and efficiency Construction
CLC: D925.1
Type: Master's thesis
Year: 2005
Downloads: 232
Quote: 0
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Abstract


Appellate procedure is an important part of a country’s judicial procedure and isthe due way to protect the legal rights of parties, to gain judicial relief and to keepjudicial justice. Appellate procedure is set in every country’s judicial procedure so asto correct the wrong judgment and to unify the applied function of national laws.Different countries, however, have different systems mainly including AppellateCourt System, Appeal-lodging System, Trial System and Judgment-making System,and etc. This dissertation adopts case analysis and comparative analysis for the studyof the operation of our appellate system in civil litigation and analyzes those appellatecases of an Intermediate People’s Court in past five years. Based on the aforesaidanalysis, it points out from the perspective of civil appellate legislation such issues asthe inconsequence of Appellate Court System, the over-broadness of appellateconditions, the full examination in appeal, the abuse of retrial, the excessiveapplication of direct judgment and the random launching of retrial conditions whichrestrict the realization of judicial justice and affect judicial efficiency. It analyzes aswell the relationship between appellate procedure and relevant procedures and sodefines the functions of these procedures and their respective positions in civillitigation.Civil appellate procedure shall be scientifically rebuilt on the basis of absorbingadvanced foreign legislation and our mature judicial practice by questioning ourappellate procedure and pursuing the basic value of justice and efficiency. One-trialSystem and limited Three-trial System shall be established under some conditions.The retrial conditions shall be strictly controlled for the correction of effectivejudgments. The retrial litigation system shall be set up to restrict the appellateconditions and the principle of prohibiting non-interest modification shall beestablished for preventing the abuse of appellate right by some parties andguaranteeing the full excising of appellate right to parties so as to show proceduraljustice.In addition, strict legal system shall be established to protect the due excising ofjudicial power, the litigation and entity rights;to respect the parties’ disposal right byonly examining the parties’ appellate claims;to strictly restrict the judging method ofback-to-first-trial;to implement the constitutional principle of open judgment;tocancel the trial method of direct judgment;to supplement and improve the judgmenttypes needed in practice and to regulate the methods for dealing with the parties’litigation claims and counter claims. With the establishment of such modern judicialconcepts of openness, justice, efficiency, civilization and democracy, trialorganization system for appeal shall be improved;the mechanism for both collegiatesystem and single-judge system to work together shall be implemented;the jurysystem shall be introduced and the goals of judicial democracy and judicialcivilization shall be truly realized.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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