On Counter-appeal

Counter-appeal has functions of equally protecting the interests of litigants andkeeping the stability of procedures. Continual hearing mode, and the probably beingintroduced principle of prohibition of reformatio in peius make it necessary tointroduce counter-appeal system to China. This article compares the counter-appealsystems in continental countries, and makes suggestions on establishing China'scounter-appeal system.Part One of this article draws an outline of counter-appeal. Counter-appealmeans when one litigant appeals, the other also disagrees the judgment and asking forabolishing or modifying the part of the first instance judgment which does not infavour of him and expanding that does. Its characters include brought in by thelitigant who has abandoned appealing or whose right has expired and against theappellant, depending on the main appeal but not absolutely, etc. Its functions arebalancing the interests of both parties, making sure they have equal chances to attackand defend;maintaining the procedure stability and protect the authority of justice,reducing the costs of the lawsuit. Then analyses the nature of counter-appeal. If it fitsthe conditions of appeal, counter-appeal has the nature of appeal. But if it does not,whether it is still an appeal or a measure against apply of the principle of reformatioin peius is disputed in continental states and China's Taiwan Region. On the ground ofthe comparison and analysis of the opposite viewpoints, this article regards it asappeal, and gives the reasons of such regard.Part Two compares counter-appeals in continental states and China's TaiwanRegion, including relevant legislations. The following discussion will base on thiscompare.Part Three especially discusses the necessity of introducing counter-appeal toChina. In the view of system, counter-appeal is the supply of continual hearing modethat has been adopted in China's reform of appeal system and the principle ofprohibition of reformatio in peius that may be introduced later. These two aim atefficiency of procedure, but will impair justice without relevant system to cooperate.Counter-appeal can make up their defects and make their application more reasonable.So it is necessary introducing it.Part Four compares counter-appeal with a similar system – counter-claim in thesecond instance. Scholars have different views on whether counter-claim can bepresented in the second instance and the reasonability of Article 184 of the SPC'sExplanations. This article believes that the Explanation is reasonable. Counter-appealis not the measure to bring counter-claim.Part Five discusses several particular issues of counter-appeal. After comparinglegislations of continental states and China's Taiwan Region, this article puts forwardbelieved proper plans, and makes suggestions on how to fit the reconstruction ofChina's levels of trial, the relation with main appeal, the subject and object, the timelimit, whether can be brought against counter-appeal, whether can brought again ifhaving been withdrawn, etc.In the end, the conclusion is, we should introduce counter-appeal to China, inorder to make appeal system equal and efficient, protect equally procedural rights ofboth parties and make the whole procedure more rational.