Civil Incidental Appeal System Reserch

The civil incidental appeal refers to the appellant dissatisfied the verdict of the first trial,and then appeal, the appellee takes the main appeal as the basis, with a proposed change or revoke the request behavior of a trial.It not only helps to protect the legitimate rights and interests of the parties, the realization of judicial justice, and help to maintain the stability of the referee and the authority of justice.However,The civil incidental appeal is not be stipulated in our country.Based on this,this paper conducts the research from two aspects, text analysis and comparative research. Through the history of legislation in the countries of continental law system countries and the comparison of the incidental appeal system in these countries and compare the specifical systems which were changed before and after the modify of the Civil Procedure Law of in our country.Especially the analysis of the new programs in the new civil procedure law to establish the subject point of writing.This paper is analyzed from the six part of the civil incidental appeal system.The first part mainly introduces the background to research of the civil incidental appeal system and this system.Among them,the significance to establish the civil incidental appeal system mainly from the system, theory level, and practice three parts discussed. The theory,set up the civil incidental appeal system can realize the change from procedural justice to substantive justice,guarantee the appellee active attack in the litigation process,given the parties equal or equivalent the attack and defense methods.and in the premise of "good law", to achieve substantive justice real.On the level of system,establishing the civil incidental appeal system,can fill in the blanks on the design of the system of civil procedure in our country,the most important is that it helps to perfect the legal relationship in civil procedure,especially the dispute legal relationship between parties.On practice,incidental appeal can improve the accuracy of instance the facts and applicable law in the appel of civil proceedings,then reduce the judicial resources, improving the efficiency of lawsuit,conducive to the stability of judgment, but also can reduce the practice of appel and retrial pressure.The second part is about the legal analysis of the system of incidental appeal, mainly introduced the concept, characteristics, nature and value orientation.The civil incidental appeal refers to the appellant dissatisfied the verdict of the first trial,and then appeal, the appellee takes the main appeal as the basis, with a proposed change or revoke the request behavior of a trial.lt is this particularity,had decided the a series of characteristics is different from the main appeal.On incidental appeal of nature, this paper introduces the complained of the appeal theory,not appeal theory and the dualist three different theoretical controversy and with characteristics explains the appeal of incidental appeal to reason.Finally, discuss the value orientation of civil incidental appeal in detail from the application free, program participation, procedural justice and benefit.The third part is the comparative analysis of the system of incidental appeal make a longitudinal and transverse comparison from the civil law countries and Taiwan the provisions of the system of incidental appeal, summarize some common characteristics about the system in the states,so as to provide reference for our country to establish the system.The fourth part is the innovation point also is the key of this article.Analyzed the causes of the system of incidental appeal to build in our country under the new concept of the legislation of the civil procedure law, the institutional environment and the judicial practice three levels.First, the legislative concept,this article mainly describes from the equity technology concept and justice and facilitation,the concept of procedural equity requirements in the legislative tenet,based on the correct understanding of the relationship between the interests,have a rational evaluation of the various interests formulate legal system; While the judicial convenience simple, fast, the idea of low cost,easy understanding, easy mass utilization,bring people and judicature. Secondly, institutional environment,make reason analysis on the establishment of collateral appeal system mainly from the scope of the second instance changes, refined procedure design,the appeal court range from "comprehensive review" to "limited review", balance the division of roles between the court and the party,meanwhile,and protect the private rights of the civil subject to realize, the litigation status of the main parties.In the process of fine design requirements,through our country new civil procedure law about the establishment of pretrial conciliation system, regulation of malicious prosecution provisions,and the small program to illustrate the construction of China’s civil incidental appeal system is the requirement of program refinement in the meaning of the title.Finally, the judicial practice,based on the reason analysis about the loss of appeal and appeal to abuse phenomenon.The fifth part discusses the problems about construction of the collateral appeal system,Including the premise of collateral appeal filed,object, time, lift and a series of system design relation to the appeal interests etc.At last, draw the conclusion:our country should set up the collateral appeal system and believe that in the full understanding of the system under the premise of environmental,absorbing and drawing on the experiences of foreign countries.China incidental appeal system can play an important function in the realization of judicial justice and efficiency, realize the inheritance, innovation and development of the socialist judicial democracy.