On The Functional Definition And The Rule Of Decision In The Second Civil Instance

The second civil instance is the compulsory procedure in the system of civil lawsuit in many nations. Due to differences in the level systems in different nations, the differences are directly reflected in those in the systems of appeal. The modern level system, in fact, demonstrates same principles or similar ways to configuring functions, i.e.it takes the form of pyramidal criminal justice system, and the three-level courts consist of court of first instance, court of appeal and the supreme court. As for common civil cases, an intermediate appellate court serves as the court of final appeal, since the hearing of the former court is enough to do justice and guarantee the uniform application of law. As the level system is a systematical project, it is impossible to take the instance of appeal off the system to inspect its construction alone.Regarding the system of appeal, China has been rectify the wrong decisions by offering remedies to the persons involved, aimed at access to justice of cases. However, the system of appeal is chiefly set up for the basic public aim—to maintain the application of relative. The present system of justice, based on the principle of taking the second instance as final and replenished by the system of re-trial, finds great difficulties in the legal practice. One case is that it remains difficult to appeal and apply for re-trial, which results in much waste of financial, material and human resources of the persons involved and the nation. Another case is that the system of the court of second instance being the court of last instance exists in name only since the system of retrial is not restricted. There are not only defects in inner structure and systemic features of the existing system of appeal, but problems in the legal practice and operation. The main reason lies in inadequate recognition of the functions of the second instance and its inexact definition, additional to the fact that vagueness of legal regulations and improper operation are apt to the abuse of rights and irrational adoption of procedures. All these procedural speculation and judicial confusion make it hard to realize the purpose of the system of appeal.The two fundamental functions of the second civil instance are emphasized worldwide: one is to rectify the wrong decision and protect the lawful rights and interests of the persons involved; the other is to guarantee the uniform application of laws, i.e. to there must be unanimous decision at all levels. In view of the status quo of application of its procedures, the basic functions of the second instance is defined as: first, the function of rectifying mistakes of the level supervision; second, the function of protecting the right of action of the person involved so as to strengthen the justice of judicial decisions; third, the function of share the pressure of the judges in the first instance to promote the judicial independence; last, the function of promoting the uniform application the national laws to safeguard the uniformity of the legal system. All the functions except the first one aim at public purposes, which better suit the theories and requirements of modern system of appeal. So far as the function of rectifying mistakes, the rule of the second instance should be overrule-oriented, and be cautious in remanding a lawsuit for a new trial. To alleviate the social suspicion of justice, the system of appeal has to be established to promote the acceptability of the decisions by means of signs of just decisions, for example, made by many judges of higher ranks and education (the trial of appeal must adopt general council) ; To reduce the pressure of the judges in the first instance, and to promote the judicial independence, China should: firstly, establish the justified mechanism of "being responsible for one's own decision" through refining the procedures of the first instance so that most cases can be closed by the first instance; secondly, perfect the procedures of the second instance to save space for the higher courts to practice the public function of uniform jurisdiction. As regard of safeguarding the uniform application of national laws, it is advisable that the four-level system of second instance be reform into that of the fourth instance to improve the fact that the final courts are at the lower level and the inundation of the regional protectionism. In addition, it is suggested that the research into the legal application of judicial decisions should be encouraged.