The Reform And Perfection Of China's Civil Appeal Procedure

Three major problems exist in the civil procedure of China. The trial grade system is not reasonable.The system of a case being only adjudicated by two courts of different grades that was established in the fifties was suitable for Chinese situation at that time and also functioned well in protecting the legal merits of parties of litigation and improving lawsuit efficiency. But with the epoch development of the system of a case being only adjudicated by two courts of different grades has its own flaws and many deficiencies in practice. The appealing system has some flaws. The appealing causes are too broad and lacks substantial requirement. The parties can appeal to higher court no matter the case is simple or complicated, no matter subject matter of action is big or small, no matter what purpose the applicant has in his mind. The door for excessive suit is open, many appeal for malicious reasons. The cost of litigation is exaggerating and the duration of lawsuit is thus prolonged. At the same time, because of the lacking of the system of collateral appealing and the system of counterclaim in the appealing procedure, it is not favorable for the protection of litigation rights and legal merits of the parties, simplification of litigation procedure and improvement of litigation efficiency. The adjudication procedure is not perfected. First, categories of judgment are not comprehensive. Only three kinds of settlements can be made to the appealing: affirming, amending a judgment, remanding for a new trial. If the original judgment violates the regulations concerning jurisdiction, then, the upper court cannot deal with it with the limited three kinds of settlements. There is no regulation concerning the settlement of this problem. Second, the connotation of amending is not clear. Can the appeals court make a judgment more unfavorable to the appellant or exceeding the scope of appealing to make a judgment more favorable to the appellant? There is no clear regulation on this. The third is that remanding for a new trial for the reason of "fact being not clear and evidence being not enough" is not in accordance with evi-. dence regulations.. Amending judgment or remanding for a new trial for the reason of "fact being not clear and evidence being not enough" pursues objective truth, which is not scientific in civil litigation, not in accordance with evidence regulations. The fourth is that substantive regulation is paid more important attention than the procedural regulation. The standard of remanding for a new trial for the reason of "fact being not clear and evidence being not enough" clearly reveals this tendency. The procedure is not endowed with its deserved value and the subjective role of the parties is also neglected. The fifth is that it influences efficiency and procedural stabilization. Many disadvantages exists in practice by regulating remanding for a new trial for the reason of "fact being not dear and evidence being not enough". The unlimited remanding for a new trial wastes precious judicial resources and influences lawsuit efficiency.In order to solve the existing problems above, the following basic principles should be followed: first, the procedural justice principle. The justice principle demands that in the design of appealing procedure of civil litigation, equally demands litigants to take up litigation obligations, ensuring the freedom of will of litigants make sure that they can make use of their litigation right. The second is the proficient principle. The justice without efficiency is not the justice the society pursues. The lack of efficiency will result in the prolonging and will lower, even diminish frightening, compensating, inducing and encouraging functions of adjudications. The relationship between justice and efficiency should be correctly adjusted, sticking to the principle of efficiency proceeding first and justice should also be pursued. The third is the principle that litigants have power to deal with their own rights. In the civil litigation the litigants have powers...