China's Civil Action Is The Second Trial Of The Scope Of Research

Our country is facing the historical revolution and transformation of the civil procedure system, in which, the reform and consummation of the procedure of second instance is becoming an important practical topic, but the scientific definition of second instance scope constitutes a fundamental research topic.The hearing scope of the procedure of second instance is a category with theory and value in integrity. In the modern adversary system civil procedure, the client shall firstly determine second instance scope; the court shall be restricted by the scope of request and claim of the client but shall investigate, according to its authority, the items, which are out of the authority scope of the client. The setting of second instance scope shall be in conformity with the request of function and purpose of civil procedure. In the environment of second instance final judgment system of our country, it is necessary to pay attention to the trial of facts as well as trial of law. Based on the operation rules of civil procedure and the value orientation between justice and efficiency, the structural model of continuous instance shall be adopted for the trial of facts in second instance; the scope of litigation and litigation target determines the basic scope of case trials; and the determination of second instance scope shall be in conformity with the basic of the theory of litigation and litigation target. In the civil procedure, the force and effect of the procedural action of the client shall be continuous, and the determination of second instance scope shall be in conformity with the basic request of the theory of procedural action of the client and the system of right deprivation. Whereas the justice and efficiency are the two basic targets of modern civil procedure, they shall be taken as the guidance to make proper amendment and breakthrough to second instance scope in order to realize the function and purpose of litigation at higher level.The hearing scope of the procedure of second instance is a category with history and reality in continuity. The hearing scope of the procedure of second instance of our country has undergone a continuous evolution progress, from the full inspection inthe Civil Procedure Law (to be implemented) to the limited inspection in the Civil Procedure Law; from the regression to the returning in the judicial interpretation; in total, the hearing scope of second instance of our country is undergoing in the positive direction. Whereas the theoretical basis is weak, the legislation is incomplete, the value orientation is unscientific and the judicial practice is not unified, the further reform and consummation are needed.The hearing scope of the procedure of second instance is a category with theory and practice in combination. In the structure of second instance scope, it is necessary to determine the items of judicial action for which an appeal can be filed; restrict scientifically the request, facts and reason of appeal and the scope of defense and claim; construct perfect annexed appealing system; deal carefully with the omissions of appeals and the attendance, addition and combination of appeal; and define accurately the items to be examined of second instance authority. To the new facts and evidence in second instance, the precise and completed rules of inspection, distinguishing and adoption shall be stipulated and followed according to all kinds of specific conditions. To the legal problems, the respective examination shall be carried out according to the nature, levels, and interest relation of different problems.The hearing scope of the procedure of second instance is a category with individuals and system in response. The second instance program section and its operation style shall be in conformity with the structure of second instance scope and shall be followed and developed in the whole process of civil procedure. It is necessary to set up the completed preparation program to be carried out before second instance, stipulate various second instance style, construct the judgment scope and style of second instance in conformity with the second instance scope, and determine the standard of collecting legal cost of second instance cases according to second instance scope. The internal corresponding and restriction relationship shall also be embodied in the whole construction of single hearing, second instance and rehearing program in the civil procedure.The systematized reform of civil procedure system is becoming a commonunderstanding to the people. The Revision Suggestion Draft of CIVIL PROCEDURE LAW (The Third Draft) drawn out by scholars has also been published. Whereas in this Suggestion Draft there are still some defect and deficiency in second instance scope and relevant problems, the establishment of a wholly new code of civil procedure is a historical mission to be accomplished.