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On The Principle Of Prohibition Is Not The Interests Of Change In Civil Appeals

Posted on:2010-05-16Degree:MasterType:Thesis
Country:ChinaCandidate:F WuFull Text:PDF
GTID:2206360302976089Subject:Procedural Law
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The principle adverse alterations prohibition in civil appeal is an important principle of Civil Procedural Law in Continental Law Legal System. It means when it review its handling of the applicants case, the review authority cannot make a decision to put the applicant in a more disadvantageous position. The core idea of "against adverse alteration" appears in the field of criminal and administrative procedure law. The principle is derived from the Gemeinschaft der appellation of Roman law .According to this principle ,once each party start appeal, even if the appellee did not appeal and did not prensent circumstances, the judge in appeal can also be a statement of their own against the original decision. By the early 19th century, with the continuous advancement of civil society, the concept of procedural law started to change. One-sided pursuit of objective truthfulness has been gradually abandoned in the trial, the law truthfulness attached more importance .The juridical scope was reasonable restricted. And in the procedures of civil appeal reform, there is a core issue, that is, the scope of the definition of second-instance decision. In Germany, Japan, France and other countries, even in Anglo-American legal systems of different countries, the judge will not appeal a statement in the appellant outside the referee, the judge fully respect the appeal right of both parties. On the contrary, in our Civil Procedure Law is comparatively general, as a result of being difficult to achieve the original intention of the legislation through limiting the scope of the second instance trial. Therefore, as to the reform of the system of civil appeal, the most urgent task is establishing the principle adverse alterations prohibition .This article emphasize the principle's connotation, legal basis, the relevant legal provisions, the interrelated design .On the basis of comparison on the incorporation of the reality of our country to establish the principle as soon as possible to assist the reform of civil procedure of second instance smoothly.This article consists of four parts, a total of more than 40,000 words.The first part introduces the principle's summarization. First, through review the common principles of appeal and the relations of the litigation rights of the parties and the trail rights of the judge, it mainly studies the historical inevitability of their emergence. Secondly it introduces the relation between the interest change forbiddance principle and the adverse alterations prohibition principle, the legal basis for the existence of the basic issues, from different perspectives to deepen understanding of the principles. Finally inspection of the change in the principle of interest is prohibited in our criminal and administrative procedure law in the specific embodiment of the principle of trying the same in different areas of application of the principle of procedural law to emphasize the importance of the theoretical system.The second part is the presentation of the relative regulations on this principle in several main countries and regions .In many countries of Continental Law Legal System such as Germany, Japan and France ,they regulate this principle and corresponding designs as incidental appeal system .So, this paper emphasizes particularly on introducing these countries and regions' regulation .Although the countries of Anglo-American Legal System such as America and Britain have not defined this principle, they accept no appeals no remedies, that is ,their civil procedure and judicial practices indicate the same intention with the principle. at the end of the chapter there is a comparison of the relevant laws of the Two Legal requirements and summary of the judicial system . Through studying overseas and other areas' legislation and the basic theory, combined with China's own characteristics of civil litigation system, the paper suggests that it is necessary to specifically construct the principle.The third part discusses the necessity and the feasibility of this principle in our civil appeal procedure. This chapter is divided into two parts. One is to reveal the status quo of China's legislative and legal problems in the application, for example, the law is not clear, the application is non-uniform, the lack of supporting mechanisms and so on; the second mainly reviews the different views of theoretical scholars and details on the appositive reasons, then table a proposal, and then fully analyze the deficiencies of the legislation ,on the basis of the analysis deeply expound the necessity and feasibility of this principle, meanwhile, pointed out the practical significance of its existence, highlighted the important role of the establishment of the principle in promoting the reform of the civil appeal system.Partâ…£is about how to establish this principle .The author makes mention to a number of key issues. The contents of the chapters can be broadly divided into two parts. the first part explores how to establish it in legislation in the interests of the prohibition does not change the application of the and specific issues .It is proposed to amend the section 151 of Civil Procedure Law .provides that the second instance trial, the magistrate a statement limiting the scope of the appeal, let the appeal equal to the scope of the trial, and then clear the application of enumerated exceptions, and give a brief introduction of specific methods, include the limits in application, and the operation of the principle in different cases. the second part of this chapter introduce some useful design, such as forbid abusing lawsuit right and incidental appeal, and so on, in order to protect the implementation of the principle.
Keywords/Search Tags:Civil appeal, Adverse alterations prohibition, Disposition right, The limits in application
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