On The Perfection Of China's Civil Appellate

As one of the most important sectors in Civil Procedure, the Civil AppealSystem in respect of its structure and operation has a great impact on theeffectiveness and efficiency of the entire system of civil procedure. The effectivenessof the Civil Appeal System is one of the major factors in fulfilling the establishedpurpose of the structure and operation of the entire system of Civil Procedure, further,in the effective operation of the Judiciary System. What we should do is to discovervulnerabilities and defects appeared during the operation of Civil Appeal System, tomake further analysis with a view to put forward constructive suggestions regardingimproving the system based on the judicial practices and with reference to foreignexperiences and practices. At the same time, the structure and operation of CivilAppeal System is subject to other sectors in the civil procedure. Those sectors aresupplementary to each other instead of independent against each other. To improvethe Civil Appeal System, no stopgap measures should be taken. Contrarily, weshould discover the factors hindering the functioning of Civil Appeal System, basedon civil Chinese judicial practices, to make practicable suggestions, aiming atharmonious operation of each sector in civil procedure. This essay is divided intothree parts as follows:Introduction: The author explains the theme and reasoning of the essay, with abrief description of the content, with highlights in the essay's innovation,significance of the essay in judicial practice, legal reform in Courts and revising theexisting civil procedural law.Part I: Elements of Civil Appeal System. In this part, the author conducts a studyon concepts and functions of Civil Appeal System, Trial Tier System, the System ofLeave to Appeal, the Extent the Appeal Judges Hear. In Trial Tier System, there is acomparative study on court structures and trial tier systems in civil procedure inseveral countries and areas as Great British, USA, Australia, Germany, France, Japanand Macao, demonstrating the prevailing misunderstanding that the "three-tier trial"civil procedure system is "generally" adopted by foreign courts. In System of Leaveto Appeal, there is a comparative study on the system as System of Leave to Appealin several countries and areas as Great British, USA, Germany, France and Macao,stating the significance of establishing the system as System of Leave to Appealwhen revising the existing civil procedural law. In the Extent the Appeal Judges Hear,there is a comparative study on the extents the Appeal Judges hear in differentcountries and areas as Great British, USA, Australia, Germany, Japan, France andMacao, indicating the limitations of the relevant stipulations concerning the saidextent and to which direction the reform should be headed.Part II: Major Issues in China's Civil Appeal System. As to such major issues asdefects in substantial requirements for case-filing, requirements for formalities ofcase-filing, general lack of authority of trial judges, limitless extent the AppealJudges hear, and retrial of civil cases, overruling original decisions and such otherfactors hindering functioning of Civil Appeal System. In Requirements forCase-filing, there is study on case-filing of appeal cases against judgments andorders, lack of accidental appeal, and designated appeal cases in judicial practices,especially on issues in retrial system and overruling original decisions. With a viewof a coordinated trial tier system, this part also involves studies on lack of pretrialprocedure, summary procedure, mediation and retrial, factors hindering functioningof Civil Appeal System.Part III: Suggestions made as to improve Civil Appeal System. In this part, theauthor makes such suggestions concerning the reform of retrial system as,specifically, China should stick to the existing "Two-tier" Trial system, there shouldbe proper distinctions between hearing of issues of fact and issues of law, thereshould be established the second appeal in civil procedure, the existing trial tiersystem should be adjusted, case-filing and decision-making in civil appeal should beimproved, factors that hinder the functioning of Civil Appeal System should beremoved etc. In Sticking to the existing "Two-tier" Trial system, the author makesanalysis and refutes the prevailing theory as abolishing the existing "Two-tier" Trialsystem, by restating the rationality of the existing "Two-tier" Trial system andopposing the proposal as establishment of a "Three-tier" Trial system. In ProperDistinctions between Hearing of Issues of Fact and Issues of Law, based onelaboration on the concepts and origins as to the two expressions, the authorproposed a tentative plan of establishing the second appeal, aiming at supplying thegap caused by lack of hearing of issues of law. At the same time, the author discussesthe concept of Civil Appeal System, relationships between the second appeal andreference system by court, and the judicial interpretations, and establishing thesystem as Stare Devises in China with highlights in suggestions as to improvementsin trial tier system, case-filing and decision-making in Civil Appeal System, suchfactors hindering functioning of Civil Appeal System as lack of pretrial procedure,summary procedure, mediation and retrial.