Research On Civil Appeal Interest

From the perspective of comparative law, the appeal interest quota and the leave to appeal applicable in civil law countries and the leave to appeal applicable in civil litigations in Anglo-American law countries constitute the entire contents of civil appeal interest. Civil appeal interest is the basis of appeal procedures. The civil appeal interest plays a significant role in guaranteeing the sound functioning of appeal procedures, protecting the legitimate rights and interests of parties to an action, and improving the civil appeal procedures during judicial system reforming processes of all countries. After entry into the new century, China has achieved prosperity in the development of legal construction in socialist market economy. However, civil disputes between civil subjects have also appeared in large numbers and the subjects to disputes appeal increasingly to civil actions to settle their disputes. Such practice has caused increased civil cases year by year, and the burdens on the civil trials of courts have become increasingly evident. The contradiction between the effects of trials results and the actual needs of socialist rule of law and the public continues to increase. Specifically, in terms of the application of the existing civil appeal procedure in China, since the Civil Procedure Law of China provides appealing conditions which are too broad and do not have substantive operability and other shortcomings, a series of problems have appeared in practice: a party, prevailing or losing, in the first instance may appeal on the ground of the right of appeal to start the second trial, leading to wasting of judicial resources due to delays in actions, appeal speculations, malicious appeals and such others. An important design defect in China's existing civil appeal procedure is the absence of civil appeal interest. Based on the legislative, theoretic and judicial practice experience, a key factor that supports the formation(a party lodges a civil appeal) and the trial procedure of a civil appeal case during a civil appeal procedure is the civil appeal interest, which is the form of a first-instance action interest that continues to exist in an appeal trial procedure, the purpose and requirement of the party who lodges the appeal, the substantive requirement of the appealing condition, the object under the trial of a court of appeal, and also the cause of the starting, advancing until end of an appeal procedure. Therefore, a study on civil appeal interest is necessary and important for improving the legislation in the civil appeal procedure and regulating the action and judgment practice of civil appeals in China.The author presents this doctoral dissertation in civil procedure law under the title of "Study on Civil Appeal Interest" and studies and clarifies the legal principles of action and comparative law by sectioning the dissertation into several subjects such as the basic scope, composition, formation mechanism, and procedural guarantee of civil appeal interest to reveal the importance of civil appeal interest in the design of civil appeal procedures. On this basis, the author carries out practice investigation and problem analysis for the formation and procedural guarantee of civil appeal interest in China and further demonstrates specific suggestions on improving civil appeal procedures with the procedural guarantee of civil appeal interest as the center. This dissertation comes in six chapters and includes over 160,000 Chinese characters.Chapter I Basic Scope of Civil Appeal Interest: The "civil appeal interest" should be a "doctrine on unfavorable judgment". In other words, the civil appeal interest is an action interest demand of a party to request a court of appeal to alter a first-instance judgment which is unfavorable to the party's interest. The civil appeal interest is a substantive and legal requirement for lodging an appeal. The civil appeal interest has the characteristics of subjectivity and objectivity, private interest and public interest, restrictive and permissive natures. As an objective reality, the civil appeal interest, which is affiliated to the appeal procedure, has the independence and stage properties. Meanwhile, due to the presence of mutual relationship between different procedures of civil trials, the civil appeal interest has mutual relationship with several concepts such as interest, action interest, right of appeal, trial level interest and civil appeal procedure.Chapter II Composition of Civil Appeal Interest: The civil appeal interest is composed of subject, object, objective reality of appeal interest and other elements. From the perspective of comparative law, there are similarities and differences for legislation in different countries in terms of the elements of the civil appeal interest such as the subject scope, object scope, form and duration of objective reality. The cause lies in the efforts to balance the protection of parties' rights of action, trial justice, efficiency and others. On the basis of different doctrines on the criteria of whether an appeal interest exists, it is proposed that the "doctrine on pro forma refusal to accept" for determination of whether a civil appeal interest exists at the procedure level should be adopted. Classification based on different criteria has multiple values in legislative, theoretic and judicial practice for defining the civil appeal interest.Chapter III Formation Mechanism of Civil Appeal Interest: Why does a party need to appeal? A party's appealing behavior is the result of the party actively claiming the appeal interest entitled to him in his first-instance judgment. The formation mechanism of civil appeal interest is as follows: A first-instance judgment result that highlights the trial power of a judge is often unsatisfactory to both parties to an action and there is possibility and certainty that errors exist in a first-instance judgment for many reasons such as the finding of facts, application of law, a judge's professionalism, and the litigation capability of parties to an action. Therefore, the civil appeal interest is an objectively existing and non-ignorable "fact" from the perspective of parties seeking their own legitimate interests based on their subjective perceptions and the national judicial system guaranteeing fair trials and uniform applications of law. On the other hand, a party's claim of his appeal interest often results in a prolonged period of civil procedure and increased judicial cost. Therefore, civil action legislations in countries have adopted more stringent restrictions on appealing conditions than those on lodging of an action in the first instance. The restrictions on the appeal interest are outstanding, which specifically include restrictions on the scope of judgment for appeal cases, implementation of reconciliation and court mediation for case settlement, expansion of ADR approaches in the first instance, specification of the bottom line of appeal interest quota, determination of the rules for leave to appeal, collection of court acceptance fees for appeal cases, imposition of penalty on appeal delays and malicious appeals and such other measures. The civil appeal interest is tried in a court only when a party lodges such claim to the court. A party's failure to declare his intention to lodge an appeal on his own part, conclusion of an agreement between parties on not lodging an appeal, failure to appeal within the time limit of appeal, and withdrawal of a lodged appeal are circumstances of withdrawal of civil appeal interest.Chapter IV Procedural Guarantee of Civil Appeal Interest: In terms of litigation philosophy, the civil appeal system is a procedural guarantee system for appeal interest. The legislative and judicial organs of a state attach importance to the procedural guarantee of civil appeal interest having the rule-of-law values such as protecting the parties' legitimate rights and interests and procedural rights and achieving uniform application of law and procedural justice. From the perspective of comparative law and litigation system legislation development, the legislative dimension of the procedural guarantee of civil appeal interest is restricted by the civil action structure, trial level system, judicial tradition, current status of civil appeal practice and such other objective realities. The procedural guarantee of civil appeal interest includes trial organization, scope and method of trial and other main contents. In terms of the macro effects of the rule of law, the procedural guarantee of civil appeal interest has a dialectical relationship with the civil legislation improvement. The civil legislation improvement promotes the strictness, standardization and scientificity of procedural rules including the procedural guarantee of civil appeal interest so that the entire civil trial mechanism fit the rule of law and social practice requirements.Chapter V Investigation into Practice of Formation and Procedural Guarantee of Civil Appeal Interest in China: By analysis of judicial data, typical cases and effects of case settlement methods, a demonstration has been performed for the current status of the formation and procedural guarantee of civil appeal interest in China to explore the multiple causes of the practice status problems of the formation and procedural guarantee of civil appeal interest. On the one hand, the reasons why it is difficult for the formation and procedural guarantee of civil appeal interest under the two-tier trial system in China include: overwhelming emphasis is laid on state intervention in legislation, limiting relevant parties' autonomy of will; the law enforcement is likely to create an environment unfavorable to realization of parties' civil appeal interest and a trial environment with administerization and localization of courts as well as non-judicial professionalism of judges may appear; the practice effects of parties exercising their rights of civil appeal is not ideal; the environment is not conducive to uniform application of law and others. On the other hand, the litigation case management system is not scientific and civil retrial procedures are used in a normalized manner, which are among the other reasons for the difficulty to implement the procedural guarantee of civil appeal interest.Chapter VI Optimizationt of Procedural Guarantee of Civil Appeal Interest in China: Improvement of the procedural guarantee of civil appeal interest is an important content of the improvement of the civil procedure legislation in China. It is of necessity and real significance to use the procedural guarantee of civil appeal interest as the center to improve civil appeal procedures. Civil appeal procedures should be improved according three principles: establishing civil appeal interest to respect the procedural interest, confirming the procedural guarantee of appeal interest, and confirming the civil appeal interest to guarantee procedural justice. The author proposes an idea of improving the procedural guarantee of civil appeal interest in China in two stages: In the first stage, the civil appeal procedure should be improved on the basis of civil appeal interest to include the appeal interest in the substantive conditions for civil appeals, the civil procedure rules should be improved and new appeal rules should created such as rules against adverse changes, rules of incidental appeal. In the second stage, the civil appeal procedure should be restructured in a three-tier trial mode based on the civil appeal interest.There are four main innovative points in this dissertation: First, it strengthens the basic theory of civil appeal interest, and systematically analyzes and demonstrates the basic theoretic contents of the civil appeal interest such as its basic scope, composition, formation mechanism, and procedural guarantee. Second, it provides centralized and comprehensive empirical analysis of the formation and procedural guarantee of civil appeal interest actually existing in the civil trial practice in China. Third, based on existing academic achievements, it further demonstrates that the civil procedure legislation should specify the civil appeal interest as a substantive condition of appeal. Fourth, the author proposes an ideal of improving the procedural guarantee of civil appeal interest in China in two stages.