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On The Principle Of Prohibiting Deteriorative Alteration In Civil Appeal

Posted on:2017-01-22Degree:MasterType:Thesis
Country:ChinaCandidate:D SongFull Text:PDF
GTID:2336330488972496Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The principle of prohibiting deteriorative alteration is an important principle,which constraints judge's jurisdiction in the second trial and respects for the dominant position of the parties in civil proceedings. The principle has been established in the civil law countries. In essence, the principle also exists in common law countries.It provides a guarantee for the implementation of the principle of disposition. In China, the principle has not been established in the legislation, so judges only "trial and error" and judge according to the theoretical knowledge and personal experience of the judges in the past, which is likely to cause the judging standard is not uniform. In addition, under the background that the principle has not been established in legislation, the principle as the basis for judgment is illegal.Therefore, to establish this principle in the legislation and to establish the applicable rules of the principle become serious problems. This article will clarify the exact connotation of the principle, demonstrate the necessity and focus on make suggestions that how to apply the principle in practice and how to establish the principle in the legislation. In addition to the introduction and conclusion, this paper consists of four parts.Part I: The general introduction. This section firstly define the principle,which is a basis for discussion in this paper. Then, this principle and other principles are compared to further highlight its characteristics. Finally, the necessity of establishment will be demonstrated from the theoretical basis and practical significance two aspects.Part II: Extra-territorial investigation. Through the investigation of the current situation of legislation and theoretical study in other countries and regions, this part summarizes the characteristics of the principle established in various countries which provides a reliable reference for the establishment of the principle in our country.Part III: Investigation of the problems of the principle in legislation, theory, practice three aspects. In legislation, by analyzing the provisions of the law, the conclusion is that the principle in our country has not been established. In theory, by analyzing the dispute about the necessity of establishing the principle and other problems, summarize the insufficiency in theoretical research. In practice, through the analysis of typical cases, refine the status of principle in our practice and analyze the existing problems. The analysis from three aspects lays the foundation for the fourth part to put forward recommendations.Part IV: Make suggestions about the establishment of the principle in our country.The first is from the perspective of uniform standards to make suggests about the premise and subject of the application of the principles, the rules of judging deteriorative interests, the scope of application. The second is for making up for lack of supporting systems to recommend the establishment of incidental appeal, subsuming the appeal interests into appeal condition, strengthening the responsibility of the judge to clarify. The last is to give the legislation examples of the principle and related systems, hoping to provide a reference for the establishment of this principle.
Keywords/Search Tags:the principle of disposition, deteriorative interest, appeal interests, incidental appeal
PDF Full Text Request
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