Study On The Restriction Mechanism Of Civil Trial Grade

The system of trial grade is one of the important content of judicial system. It embodies the basic concepts of procedure system and guarantees procedure justice in civil litigation, criminal litigation and administrative proceedings. In the existing research on the system of trial grade in the academic level, they all focus on the system of trial grade on narrow sense that the adjudication of civil case can have legal validity through trial of several different levels trial courts according to legal regulation. On this question, few researchers focus on how to configure the power of different trial grade scientifically and reasonably, especially how to realize mutual restriction between different trial grades in the framework of the construction of trial grade. In fact, the science design of restriction mechanism in civil trial grade relates to directly the achievement of target of construction of trial grade and the function of appellate jurisdiction. The scientific and reasonable restriction mechanism in trial grade can realize mutual restriction between first instance and appellate jurisdiction through procedure autonomy. The relationship of restriction and its function can limit effectively judge's arbitrary and safeguard correctness, final and unity of justice. Therefore, it has important theoretical significance and practical value to research on the problem of restriction mechanism in civil trial grade.In view of this, this article will follow the dialectical analysis, comparative analysis, theoretical analysis, analysis and empirical analysis method, and analysis the basic principle of restriction mechanism in civil trial grade, the basic theory of different restriction mechanism in civil procedure system, the comparison and common principle of restriction mechanism in different nations, the situation and perfect of restriction mechanism in civil trial grade of our country, in order to provide a unique perspective and a new idea in analyzing the problem of trial grade and appellate jurisdiction and internal control of civil judicial power of our country. The article has six chapters, as follows:As the starting point of theoretical research, the chapter I is the general theory about the restriction mechanism in civil trial grade. The restriction in civil trial grade is the two-sided mutual restriction between the superior court and the inferior court through balanced and reasonable allocation of trial judge resources and powers to different trial grade and by case adjudication according to the procedure of trial grade in civil procedure law. Through this two-sided mutual restriction mechanism, the power of higher court is supervised by the lower court at the same time higher court supervising lower court. Judging from the world, the error-correcting procedure and filtering mechanism in judicial procedure is mainly the restriction mechanism in trial grade. The restriction mechanism in civil trial grade exists not only in the trial grade, it still exists in the procedure systems related to trial grade system. From the scope, the restriction mechanism in civil trial grade exists in the whole trial process. Overall, the restriction mechanism in civil trial grade include:(1) the restriction mechanism in trial grade's startup, which is mainly embodied in the limitation to the condition of appeal judge's startup;(2) the restriction mechanism of trial model, which is mainly embodied on the model of second hearing; (3) the restriction mechanism of trial range, which is embodied on the limitation to the scope of hearing appeals; (4) the restriction mechanism of configuration of trial power, which is realized by function layered in different trial grade; (5) the restriction mechanism of referee range, which mainly embodies in the principle that no harm of interests resulting from appeals; (6) the restriction mechanism of adjudication way. The way that remands a lawsuit for a new trial can reflect most directly the restriction mechanism of adjudication way scientific.The theoretical basis which supports the restriction mechanism in civil trial grade includes the following aspects:(1) the theory of instance independence. The instance independence is structure order of independence of judicature and the proper meaning of trial grade system. The existence of the restriction mechanism in trial grade not only won't hinder realization of independence of judicature and independence of trial grade, on the contrary, it is the certain requirement of independence of judicature and independence of trial grade. (2) the theory of autonomy capacity of system. If we make the theory of autonomy capacity of system into the relatively independent judicial system, we can discover that the judicial system also follows the theory of "trial autonomy" and it can solve the abuse of power through the way of internal restriction system. In the judicial system, it can form mutual restriction relationship between different levels through the definition to the allocation of power of different levels and relationship between different level courts. At the same time, this subsystem and the subsystem which between litigious right of litigation and jurisdiction affect corporately, they control jurisdiction effectively and prevent the judicial authority abusing, and thus forming good restriction system in trial grade. (3) the theory of power restriction. This theory tells us that any power, including jurisdiction, must be restricted, so it provides important theory support for scientific construction and effective operation of the restriction system in trial grade. It has very important sense to construct a scientific and reasonable restriction system in civil trial grade in civil law. It can achieve effectively both the target of trial system and appellate jurisdiction procedure.In the foundation of basic theory, the chapterâ…¡to the chapterâ…¥discusses respectively the different restriction mechanisms of trial grade. The chapterâ…¡is about the restriction mechanism of trial grade's startup.In the system of civil trial grade, the limitation of judge resources decides that the startup of judge procedure is not arbitrarily and unconditional, but need to conform to the legal conditions. The restriction mechanism of trial grade's startup is mainly the restriction to the condition to start appellate jurisdiction, and principle is that the limitation of judicial resources and the need of distribution justice. From the outside, the civil procedure law in typical countries and regions all stipulate restrictive conditions to start the second hearing and the third hearing in order to use the scare judicial resources effectively. In China, strictly speaking, our present civil procedure law can not limit the conditions of appeal and thus result in abusing of right of appeal, which waste seriously the scarce judicial resources and influence the function of appellate jurisdiction to realize. Therefore, it is necessary to perfect our restriction mechanism of trial grade's startup through system designs.The chapterâ…¢is about the restriction mechanism of trial model and trial range. Because the model of second hearing reflects directly the relationship between first instance and second hearing of civil lawsuit, and different model of second hearing embodies different restriction relationship, therefore, the restriction mechanism of trial model is embodied in the model of second hearing. The model of second hearing determines the trial range of appeal case, and the limitation to the trial range of appeal case reflects directly the restriction mechanism from first instance to second hearing. The model of second hearing in major nations mainly has three kinds:rehearing, post hearing and revivor. Both the post hearing in Anglo-American law system countries and limited revivor in continental law system countries are take the facts of case focused on first instance in dealing with the problem of the relationship between the first and second instance. In according with the model of appeal and the gravity of trial grade, the appeal of parties is only aimed at those matters which have raised disagreement in first trial, and then the handle of appeal court is confined within the scope of the disagreement in Anglo-American law system countries. Many countries of continental law system have reformed their appeal procedure into error control and correction mechanism. Accordingly, in the new evidence of appeal trial, two law system countries all restrict new evidence's bringing in second hearing so as to give full play to the function of first instance and embody the restrict from first instance to second hearing. Our country doesn't make clear the model of appellate jurisdiction, and the restriction mechanism of trial range is not perfect, thus weakens severely the trial function of first-instance court and cannot play on restriction function from first instance to second hearing. In order to improve it, it should perfect the first instance procedure and give full play to its function in the investigation of facts; the second hearing implement restricted revivor and limit the trial range of second hearing.The chapter IV is about the restriction mechanism of jurisdiction configuration, it is that stress on the judge function key of different trial grade through functional partition of different trial grade. Seeing from the jurisdiction configuration of different trial grade, the trial grade structure in different countries is quite different because of their different historical tradition, however, the modern trial grade structure embodies and follows the same basic principle:(1) different trial grade is layered in function. It is that the relationship between superior court and inferior court is determined by their functional configuration through the law. (2) the trial of fact and the trial of law is distinguished so as to realize restriction from inferior court to superior court. In China, the system whereby the second instance is final and associated jurisdiction configuration of different trial grade cannot realize the restriction of jurisdiction configuration in different trial grade and bring many negative effects. In view of this, in order to improve our restriction mechanism of jurisdiction configuration, at first, it is necessary to construct conditional the system whereby the third instance is final learning from modern countries. In order to alleviate the burden of third hearing court and give full play to its function, it should take "significant legal value" or "significant legal problems" as the standards for the third hearing appeal. Secondly, it should re-define the function of four grade courts. The function of first instance court is to find case truth lawfully, applicable laws correctly and solve civil disputes so as to safeguard the lawful rights and interests of parties from concrete cases angle. The function of second instance court is to supervise the first trial court and correct mistakes. The basic function of third trial court is defined to explain laws, uniform judicial referees and safeguard legal application's unity so as to safeguard the judicial procedure and the rule of law. Again, it should establish the system whereby the first instance in final to specific case.The chapter V is about the restriction mechanism of referee range. In civil trial grade, the restriction mechanism of referee range plays a role mainly through the principle that no harm of interests resulting from appeals. The core of this principle limits the scope of changing verdict of appeal court in the scope of appeal so as to embody the restriction from litigious right to jurisdiction. This principle has developed a mature theory of civil lawsuit and embodied in civil litigation legislations in the countries and regions of continental law system. Most countries of Anglo-American law system have not legislation and theory about this principle, but their lawsuit system design and judicial practice is confirmed this principle to a certain degree. In contrast, the civil litigation legislation of our country doesn't provisions this principle, nor embodies the spiritual essence of this principle, and thus make our referee range of appeal control restriction. Thus, it is necessary to introduce this principle and provisions some exceptions. In related system, it is necessary to establish the system of incidental appeal and provisions its subject, relation between incidental appeal and principal appeal, statutory period, related procedures and effectiveness, etc.The chapterâ…¥is about the restriction mechanism of adjudication way. In adjudication of different trial grade, the design of adjudication way of the second trial can reflect the request of restriction of trial grade based on its particularity. On about the question the restriction mechanism of adjudication way, the way that remand a lawsuit for a new trial can reflect directly scientific or not of restriction mechanism of appeal trial. Although has many difference, but the common of many courtiers lies in that, they all limit the reason of remand a lawsuit for a new trial on legal problems or main facts and procedures problems related closely to legal issues. Many countries (such as the United States, Germany) have established the restriction mechanism between parties and court. In addition, the common practice of remand a lawsuit for a new trial in developed countries is that:they take procedure reason as the standard to remand and respect the right of procedure option of parties. In our country, this mechanism cannot realize its anticipate goal and result in many disadvantages, which fundamental reason lies in the lack of effective restriction mechanism. In order to restrict abusing of second court, it is necessary to restrict the reason number to remand, regulate its referee forms, establish the binding force of this referee to second court and parties, play a role the restriction from the right of disposing of litigant to the power of second court, restrict remand from procedure operation.