On The System Of Civil Incidental Appeal

Collateral appeal is a concept only existing in civil procedural codes in continental countries.This system has important meaning of equally protecting the interests of litigants,keeping the stability of procedures and supporting the judicial authority.But,so far we still haven't established this system in our civil procedural codes,and the scholars also have different opinions about whether to introduce this system.The writer thinks that making use of the chance that currently our civil procedural law system, especially the appeal system,is resorting to reformation and improvement, we should establish collateral appeal system,which is conducive to judicial fairness and to raising judicial efficiency.This article adopts comparative research,investigating the collateral appeal system in some main continental countries and regions,and combining our country law reality, elaborates the details of collateral appeal system in our country.The first part introduces the connotation of collateral appeal system, including concept,characteristic,property,function and theory foundation. Collateral appeal means when one litigant appeals,appeallee who gives up appeal right,withdraws the appeal or has been rejected,can still bring up a kind of special appeal depended on the appeal procedure.It is exactly because this specialization,it has series of characteristics different from the appeal procedure.About the property of collateral appeal,this article introduces three kinds of different theory opinions,and elaborates the reasons of collateral appeal is having the property of appeal.Then, introduces two basic functions of the collateral appeal system:Balancing the interests of both parties,giving them equal opportunities to attack and defend;Preventing from abusing appeal right,maintaining the procedure stability and protecting judicial authority.Finally,this article investigates the theory foundation of collateral appeal system.Firstly,the inherent requirement of the principle of the parties equality;Secondly,the embodiment of the two basic value of fair and efficient;Thirdly,the companion with the principle of the prohibition of nonbeneficial appeal sentence.The second part is comparative research in collateral appeal system. Investigate the survey of continental countries and Taiwan,Macau regions in our country,and make a comparative research,in order to provide a reference to establishment of this system in our country.The third part is the establishment of collateral appeal system in our country.First of all,basing on introducing the theory divergence on whether to establish collateral appeal system in our country,argue further the necessity and the possibility of this system to establish in our country. The necessity embodies follow a few aspects:Firstly,the inevitable requirements for adjusting the judicatory reformation and establishment the litigation mode;Secondly,the inevitable requirements for controlling the phenomenon of abusing the appeal right and setting up the judicial authority;Thirdly,the inevitable requirements for perfecting our existing civil procedural law system.The possibility analysis is from two points of view,one macroscopic,the other microscopic.The macroscopic aspects include:The huge change with people's legal views in our country and the reformation in civil procedural law system.The microscopic aspects include:The changes of regulation about appeal review scope;the development of the collateral appeal system and theories study are more mature.Finally,this article inquiries the details on establishing collateral appeal system,including the relation of appeal and collateral appeal,a series of system design on the premise of bring up collateral appeal procedure,subject request,the scope,time request,and the formsIn the end,in this article's opinion we should establish collateral appeal system in our country.In the meantime,to be noticed,any system all has blemish and abuse of itself,but how to establish it reasonably,and make it with our country's current civil procedural law system integrate mutually well,is having an important research meaning.This article's meaning just lies in this.