Civil Incidental Appeal System

Incidental appeal is widespread in civil procedural code in civil-law countries, it refers to that the appellee who has lost the right of appealing can attach the appeal program for appeal, let him use the appeal program to vary or revoke the negative part of original judgment and expand the gainful part of original judgment. Its functions are balancing the interests of both parties, making sure they have equal chances to attack and defend, improving the efficiency of dispute resolution of appeal court, and restraining the abuse of appeal. However, our current Code of Civil Procedure did not have provision of incidental appeal, the author think it is so regretful for lacking of this provision, this situation is not only conductive to protection of the parties' interests, but also not conductive to improve the efficiency of litigation. So this article chooses incidental appeal as the subject, compares the incidental appeal in civil-law countries and states, considers that it is necessary and conditional to provide incidental appeal, then makes some suggestions of establishing incidental appeal system.This article is divided into five sections:Part One: The definition of incidental appeal. In this part, the author introduces the historical background of incidental appeal firstly, and then defines the concept and characteristics of it, finally, through comparing the "non-appeal say" and "the appeal say", I think it is appropriate that defining the nature of incidental appeal as appeal.Part Two: The theoretical basis of incidental appeal. In this part, the author analyzes the theoretical basis of incidental appeal from three angles: First, the requirements of the principle of equality to the Civil Procedure. Second, preventing that the parties abuse the right of appeal. Third, the requirements of principle "one-time of resolving dispute" to the Civil Procedure.Part Three: The comparative study of incidental appeal. In this part, the author introduces the legislations with connection to collateral appeal in Germany, Japan, France and Taiwan region of China, compares these provisions and sums up the characteristics of them.Part Four: The necessity and feasibility of establishing incidental appeal in our country. In this part, first of all, the author analyzes the necessity of constructing this system in our country, I believe that incidental appeal can maintain the balance of parties in order to make them attack or defendant equally, it can maintain the dominant position of the parties in appeal procedure, and it also can substantively protect the disposition of parties', in addition, it can improve the efficiency of litigation and ease the stress of retrial apartment. Second, from the point of development of the Civil Procedure Law I think that there is enough feasibility of establishing incidental appeal in our country, the concept of authority has changed for the parties and the scope of review has already been subjected to restrictions, these conditions make incidental appeal can survive and develop in our country.Part Five: The contribution of incidental appeal in our country. At the basis of above four parts, in this part the author put forward the concrete ideas of building incidental appeal in our country, I think in our country incidental appeal can be filed with the following elements: there has a legal main appeal exists; it must be filed before the end of the language debate; it must be filed in writing made; it must be filed by appellee and it must be against the appellant; the appellee must have appeal benefits, the incidental appeal must against the first decision which has been filed by appellant.