On Justness Of Procedure Of Second Instance

Civil litigation model in our country is gradually transforming from bureaucratic legalism to the adversary system, with the social ideal transforming from power-orientation to right-orientation and civil trial method deeply reforming. Especially, the establishment of the burden of the parties'proof, which makes traditional civil action become more apparent drawbacks by the judgment legitimacy approach, and demonstrate the"legitimacy crisis of civil adjudication"in practice. In order to overcome this judicial crisis of confidence, objectively speaking, it needs the legitimacy of procedure mechanism to be made up. And legitimacy of procedure is a holistic concept, which is conformed by a series of specific legitimacy system. Among of this, justness of procedure of second instance, which plays a very important role, is the basic link in justification of the whole civil trial. But, in china, we lack systematic theoretical research on this. The paper is trying to explore the legitimacy of second instance procedure with right of litigation guarantee and checks of judicial power being mainline. It can be divided into four chapters:Chapterâ… : Why do we need procedure of second instance? The procedure of second instance not only consist of some direct functions, which can correct errors of the facts in first instance, unify the application of the law, guide and supervise of the trial of first instance, but also consist of functions of a series of system with a deeper level. such as which guarantee the realization of judicial justice, ensure the functions of judicial, and promote the formation of reciprocal checks of judicial hierarchy as well as the formation of mutual-control mechanism of litigious right and judicial power .In my opinion, the degree of awareness of function of the trial process determines the idea of values and set-up of rules of second instance, then determines the target to construct justness procedures of second instance. Chapter II: Why do we need proper second trial procedure? This chapter is to sort out the meaning of justification of second trial procedure, as well as to analysis the role of justification in the second trial procedure.Chapter III: standards of justness of procedure of second instance. What do we evaluate the legitimacy of the second instance with? It is the problem that is to be solved by standards of legitimacy of procedure of second instance. As the procedure of second instance is part of the trial process, and occupy an important position. Thus, standards of legitimacy of second instance should include the common standards of all civil procedures legitimacy. However, the special function and the special status of second instance have made it have personality standards of legitimacy different from other procedures. In my opinion, common standards of civil procedure legitimacy should include equality of procedure, the neutrality and independence of judges, the substantive participation of subject of procedure, and restrictions on judges arbitrary on the four. Personality criteria of the second instance legitimacy include: the adequacy and effectiveness to the right of appeal, the two-way constraints of procedures, restoration of truth of conflicting fact and the unity of applicable law, timeliness and finality of procedure, and so on.Chapter IV: The proper construction of second instance. This chapter reflects on the issues existing in the current procedures of second instance, and point out the following issues. First, relation between second and first instance is unreasonable; Secondly, trial supervision procedure makes up defects of second instance, which leads to a result that final is not the end; Third, one-way supervision of the higher court hinders the function of judicial hierarchy. Fourth, there are irrationality in certain specific systems: the lower level of last instance and the statutory jurisdiction, unable to overcome local protectionism; the more narrow limits of the appeal, the broadly conditions of appeal, ineffective protection of the right to appeal; limits of adjudication of second instance not be restricted by the parties'claims, the insecurity of the parties'rights of disposition; the broadly conditions of rehear, low -efficiency. On this basis, I will propose the idea about the legitimacy of second instance: to perfect the judicial hierarchy, to strengthen the parties'right of appeal ,to improve the jurisdiction of the second instance system, and to expand the parties'procedural right of choose of second instance, and to establish reasonable system to select and to assess judges, and so on.