On The Function Orientation Of China's Civil Procedure Of The Second Instance

The second instance of civil procedure is indispensable in the modern civil justice system. It is an important part of litigation to achieve fairness, justice value and protect the rights of the parties. Designing second instance of civil procedure properly is crucial to the civil litigation system, so in the last century the reform of the second instance if the focus of the civil justice reform in all countries. But due to historical and other reasons, China's second instance of civil procedure is not reasonable. And owing to a lack of corresponding attention, now the second instance of civil procedure has affected the entire civil litigation system. Before thinking about how to mend specific procedures of the second instance, we should proceed from the basic theory, from the current situation of our societyOverall research approach of this paper is based on combining theory and social status quo analysis.under the guidance of the theory of second instance of Civil Procedure to identify the crux our second instance, hope that the establishment is in line with the basic law of civil procedure, but also to adapt to the status quo of China's second instance of the civil procedure. Except from the introduction and the concluding remark, there are four chapters:Chapter I:Overview of Second Instance of Civil Procedure, which is the theoretical basis of this article.The article will begin with the definition and extension of the second instance of civil procedure, and then analyse the validity basis of the second instance, which is the process and causes of public recognition, and the basic principle of the second instance of civil procedure. When we remodel our second instance, we must follow these basic principles. In addition, the third section of this chapter also introduces two types of philosophies which affected the reform of the second instance in other countries.Chapterâ…¡:Conditions of our second instance of civil procedure. The operation of any system has its unique soil, especially in the judicial system. In analyzing the conditions of second instance, I will use two ideal types of judicial power structure which were invented by Damaska for reference. Researching civil laws and regulations as well as some statistical analysis of data and research reports, finally we sum up the crux of the second instance of our civil procedure.Chapter III:Function and trial mode of second instance of civil procedure. Function of the system determines the specific construction, so the function of the is the premise of our reform. Based on analysis of theory and current situation of our second instance, I think the main function of our second instance should be to enhance the acceptability of judgments. Comparing continual hearing mode, retrial and post-trial, I think we should choose the continual hearing mode in order to practice the function of our second civil procedure.Chapter IV:The complementary constructions of the second civil instance. Through the previous three chapters of the theories, conditions analysing, function choosing, mode selection, we will construct four complementary measures to realize the function of the second civil instance:strengthen trial on the fact of the first instance, ensure the right of appealing, restrict renewal in second instance, restrict the use of retrial.