The Research Of Chinese Incidental Appeal System

Adapting society reforming request, Chinese civil lawsuit transited from authority principle pattern to mixed pattern. The lawsuit idea that the litigant is equal in status, there must be the same resistance opportunity and the method in the lawsuit, respects and safeguards litigant's disposition right, safeguards the litigant's essencial procedure participation right has already gradually to popularize. The scholars have conducted these theories unified Chinese legislation and the judicial practice in thorough research. Chinese civil procedure for appeal, the retrial procedure have already began to take shape, but meets many questions in the practice operation, the appeal rate and retrial rate stays at a high level and has the growth tendency. The lack of the incidental appeal system flaw is an important reason. Our country once had the civil incidental appeal system in Republic of China time, and we had the legislation and the implementation condition of that system now. So we should construct that system in our country. Embarking from the overall situation of Chinese lawsuit, This articl divides five parts to conduct the research of Chinese incidental appeal system:The first part is the outline of civil incidental appeal. First carries on the limits to the concept of civil incidental appeal, then carries on the thorough analysis to the civil incidental appeal's function from the three aspects of the litigant, the court and the lawsuit dynamical equilibrium and the value.The second part analyzes the characteristic and the essence of the civil incidental appeal based on the first part, In order to has comprehensive, clear and the thorough understanding to the civil incidental appeal system.The third part carries on the induction separately in the civil incidental appeal system of France, German, Japanese and our country's Taiwan area, the Aomen area, that is typical in the mainland legal system country's civil incidental appeal system, and carries on the comparison and summarize in its civil incidental appeal system, thus grasp the general character of the civil incidental appeal system.Uniting Chinese fundamental research, the practice of legislation and the judicial in the civil lawsuit, the fourth part carries on the elaboration and the analysis in the theory reserve and the realistic foundation of establish the incidental appeal system to our country, proves the feasibility and the necessity of our country to establish the civil incidental appeal system.The fifth part is the core part. based on that four parts, this part carries on the construction in legislation article of Chinese civil incidental appeal system.