Research Of Civil Incidental Appeal System

In the design of second instance,guaranteeing the right of appeal and restraining malicious appeal is more common system design inclination of the world.Especially,as litigation explosion is more and more serious influence on judicial quality and efficiency,it becomes a general trend to make the case resolved in the trial program once by limiting the scope of the trial and the referee.So,in order to security the right of appeal and inhibit appeal desire,civil law countries and areas tried to find a way to balance.Incidental appeal became their common choice.Incidental appeal is unique system of civil law countries and areas,but the specific provision of all countries is not completely same,for example,time and properties of the incidental appeal.Although the specific provision of all countries is not completely same,the purpose and the function setting up incidental appeal of all countries is consistent.Not only incidental appeal can balance the program benefits of the parties,ensure attack of the parties equality,inhibit malicious appeal,but also it can save the judicial resources,improve the efficiency of lawsuit,safeguard judicial stability and authority. China’s civil procedure law does not provide for incidental appeal.Theory and practice sector also failed to pay attention to it.it’s a great regret.In order to make up for the loss caused by the abuse of the system,the author thinks that at present our country should consider construction of incidental appeal in line with China’s needs.This paper will study the construction of China’s incidental appeal from the four parts.The first part:basic theories of the incidental appeal.In this section,the author detailedly analyses the concept,characteristics,basic classification,the nature and function of the incidental appeal for bedding for the following theoretical analysis.The second part:comparative study of the incidental appeal.This part discusses incidental appeal of the Germany,France,Japan and China’s Taiwan and Macao,summaries the differences and similarities between countries and regions.This prepares for drawing and transplanting extraterritorial incidental appeal theory.The third part:necessity and feasibility of establishing the incidental appeal system.This section in-depth discusses and analyses the causes and conditions of building incidental appeal from the theoretical and practical level.This shows that there are sufficient reasons and causes building incidental appeal in China, not accidental,and achievement of China’s legal construction provides ample space for the establishment and development.The fourth part:assumption of establishing China’s incidental appeal system.This section sets out the principles of incidental appeal system at first,and then concretely designs the basic elements of the incidental appeal,such as the main body,time,form and negative elements of the incidental appeal.Finally,the author provides a brief analysis of the problem of convergence on incidental appeal with civil procedure law and the related systems.