On The Interest Of Appeal

Appeal right is a very important procedural rights. Parties to the disputes cannot be convinced by the awards and appeal to the appeal courts in order to benefit from the new awards, thus the parties'substantial rights or procedural rights are guaranteed by the appeal procedure. In the meanwhile, the appeal institution is provided to correct wrong awards made by the first review courts and unify the implement of the law. When individual interest and state's interest coexist and are unified in the appeal institution, how to balance these two interests is a difficult question posed in front of the legislators. Civil Law countries and regions'legal culture and legislative experience provide good strategies to solve this problem, one of which is appeal interest. In Civil Law countries and regions, if the parties appeal, they first have to meet the requirement that they have appeal interest, which means it is necessary for the parties to appeal because the first awards is against their interests。But in our country, the requirements for appeal regulated in the Civil Procedural Law are not specific. As long as the parties are not convinced by the awards, they are entitled to appeal. Even though the appeal is taken within the appeal term, regarding the awards which can be legally appealed and taken in a legal way, the non-interest appeal cases are not excluded. Therefore, it is necessary to bring appeal interest into the appeal institution in our country, in order to stop some parties appeal without any reasons, malicious appeal, and save the legal recourses of the country. Furthermore, to realize the fairness between the two parties, Civil Law countries and regions adopt the principle of prohibiting alteration for interests and incidental appeal, and they and appeal interest become a balance rescue institution. Therefore, the thesis discusses these two issues further as well. Except the preface and the conclusion, the thesis is divided into three parts; the followed is the main content:In the first part, issues concerning the appeal interests are studied. The thesis in this part observes the sources of appeal interest theories, pointing out that appeal interest appeared under the influence of the interest legal thoughts. The interest of sue and appeal interest are substantially the same, both of them are the cooperation and balance of the interest of the parties and the interest of the country. Based on the legal theory and practice, appeal interest should be seen as a legal requirement when parties appeal, but not a effect requirement. After introducing and analyzing those theories of judging standards of appeal interest and opinions of different countries'scholars, the author argues that to provide procedurally-non-persuade as judging standard is better in terms of procedural law theory and judicial practice. Meanwhile, in the lawsuit of property right, appeal interest can be quantified and some legislative cases in Germany and Taiwan are introduced. In the last of this part, the author proposes that appeal interest should be adopted in our country as a legal requirement, judged by the appeal courts in terms of form when parties appeal. And the quantity of appeal interest should be regulated in the procedure of appeal procedure,to realize the very aim of appeal.In the second part, the protection bottom-line for appeal interest is discussed: the principle of prohibiting alteration for interests. After defining the principle and briefly introducing the legislative cases, the thesis emphasizes on explaining the content and the implement of the principle, including the judgment of the interest's scale, the bottom-line of rescue, the condition of implement, exceptions and the relationship between it and the principle. Then the thesis analyzes the legal theory of the principle and refutes the opinions denying the principle. Through reviewing the regulations in our country, the author hold that the principle of prohibiting alteration for interests should be provided in the procedural of appeal as a bottom- line for rescuing the interest of the appealers.In the third part, the balance rescue, incidental appeal,is introduced. This part mainly introduced Civil Law countries and regions'legislative cases, and analyzes them in the four following respects: types, effect, party, time. Because of the different legal traditions and cultures, the regulation concerning incidental appeal is not the same. With regards to the essence of incidental appeal, the author agrees with appeal theory for it's good for establishing this institution. At last, the author suggests that incidental appeal be adopted. As long as the party has appeal interest, they are allowed to take incidental appeal after they receives the order of the appeal. When the party retracts appeal or the appeal is rejected, incidental appeal is invalid.