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On The Principle Of Prohibiting Alteration With Prejudice In Civil Appeal

Posted on:2013-02-21Degree:MasterType:Thesis
Country:ChinaCandidate:Y H LiFull Text:PDF
GTID:2246330371979405Subject:Law
Abstract/Summary:PDF Full Text Request
From Roman law era to Germany19th century ago, in accordance with commonprinciples on appeal of Roman law, the appellate court can make the judgment whichis more in favor of the appellant compared to the original judgment. But by the early19th century, German common law break the common principles on appeal of Romanlaw, as more and more attention to the maintenance of interests of the appellant in thedevelopment process of the German common law, based on this consideration, thusadopting the principle of prohibiting alteration with prejudice in civil appeal.Professor Taniguchi Aeka, once said:“Now the focus of the fair sense is towardprocedural fairness.” The principle of prohibiting alteration with prejudice in civilappeal plays a very important role is precisely in the process to promote proceduralfairness. This article starts from to clarify the basic concepts of the principle ofprohibiting alteration with prejudice in civil appeal, to demonstrate whether thisprinciple should be established in civil procedure law of our country from multipleperspectives. This principle is not only the requirements of the maintenance of thesystem of appeals and the requirements to achieve the purposes of an appeal, but alsothe inherent requirements of principle of disposition and the objective requirements ofadversary doctrine, more important is that it reflects the value of procedural justice.The principle should be established in the civil procedure law in our country. Notonly because of its basis in civil action theory of our country and practice, but alsobecause it helps the perfection of other system. Therefore the principle contributes toour civil procedure to achieve procedural fairness.This article is divided into four parts:Chapter I: An overview of the principle of prohibiting alteration with prejudicein civil appealThis section starts from the analysis of the meaning of this principle to expand its basic content. To make clear the nature of this principle is the principle ofappellate procedure, guidance and regulation each judge, its scope of application ofthe exceptions made to further discuss, and then explored the interests of action ofthis principle. The value of the principle of prohibiting alteration with prejudice is thebasis of the principle established, Is mainly reflected in several aspects: requirementsfor maintenance of the system of appeals and to achieve the purposes of an appeal,the inherent requirements of disposition principle, the objective requirements ofadversary system, value of procedural justice.Chapter II: The basic theory of the principle of prohibiting alteration withprejudice in civil appealThis section briefly describes no aggravating punishment on defendants and theprinciple of adverse alteration prohibition in administrative reconsideration procedure,and to explore the differences and relations between the principle of the prohibitingalteration for interests in civil appeal and no aggravating punishment on defendants.Also discusses right of action in the principle of the prohibiting alteration for interestsin civil appeal. The establishment of the principle is the embodiment of protection tolitigant right, but at the same time protect the right of appeal should also pay attentionto the prevention of abuse of the right to appeal.Chapter III: The current legislation of the principle of prohibiting alteration withprejudice in civil appealThis section starts from the hearing scope of civil trial on appeal of our country,analyzing and discussing whether the principle of prohibiting alteration withprejudice exists in our country. This principle is not yet established in our country.Thus this section describes the theoretical basis and practical significance of ourestablishing this principle in our country. First, the need to establish this principle, theprinciple is established for the maintenance of the consideration of the appellantinterests, so that the appellant’s interests are protected. Second, the feasibility study ofto establish this principle, the application of the principle can refer to the twoprinciples of relevant experience in civil procedure. Third, the practical significanceof to establish the principle help our country to establish the concept of procedures inlegal construction, is conducive to the orderly operation of judicial discretion in the appeal procedures.Chapter IV: Construction of the principle of prohibiting alteration with prejudicein civil appealThis section starts from establishing the pattern of adversary system and lawsuitthought of procedural justice, discussing the premise to establish the principle ofprohibiting alteration with prejudice, in order to achieve the transition of lawsuitthought and civil litigation pattern. Further discussion on the agreement between thisprinciple and other relevant systems, is the concrete embody of the relationshipbetween this principle and the civil trial grade system, trial on appeal system,collateral appeal system, prior execution.
Keywords/Search Tags:Civil Appeal, Prohibition of Alteration with Prejudice, Interests of Action, Principle of Disposition, Incidental Appeal
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