Research On The Civil Appeal Elements

Civil appeal is the necessary condition to start appellate procedure, which reflects party's appeal is legitimate and jurisdiction can restrict appeal. Because the conditions of civil appeal are loose in our country. It not only brought a range of issues, like abuse the civil right of appeal and waste the judicial resource. But also make that the value goal of litigation justice and litigation efficiency is not realized.So, it is very important significance to judicial practice to further study how to improve the civil appeal elements.This article idea is combining the basic theory and analysis of legislation and judiciary in nowadays. According to the theories, find the reason of civil appeal is incomplete. Then make specific system framework suggestions on how to complete our country's civil appeal elements. This paper includes four parts.Part one, study of the basic legal theory of civil appeal elements. Confirm to civil appeal elements is the starting hub for procedure of second instance, and also is the reflection about the party exercises appeal legitimately. From the legal point of view,establishment of civil appeal elements not only is the bridge which connects the procedure of first instance and procedure of second instance, which affects the function of procedure of first instance and procedure of second instance's function to a certain extent. But also is the requirement of fairly distributing judicial resource, in order to make those who really need to realize the justice won a relief of appellate court.Part two, comparative study to extraterritorial civil appeal elements. First, Pull the civil appeal elements of legislation of England, Germany, Japan together. Second,it find that all the three countries carry out the three-tiered system, whether the procedure of second instance or procedure of third instance, they set strict conditions to appeal and strict punitive measures to abuse right of appeal, in order to make the party appeal legitimately and avoid him to institute an inutile appeal.Part three, the study of our country's current civil appeal elements. From 1982?Civil Procedure Law(trial implementation)?to present, the civil appeal conditions does not change by an iota, the party can start appellate procedure after he submit his appellate petition. In fact, most of appellate petitions are lack of legitimacy andnecessity. So the adjudication of second instance is mostly affirm the first judgment and reject an appeal, which adds procedure costs and party's litigation exhaustion.The reason is that there is unbalance between judicial authority and right of appeal,and civil appeal conditions is lack of maneuverability.Part four, perfecting our country's civil appeal elements. The specific system framework of consummating our country's civil appeal elements should be have four parts. First, Add appeal interest element, the party must have appeal interest. So the party who has won it all in the first instance will be blocked outside the second court.Second, Establishing the collateral appeal system. Collateral appeal system is a special appeal, which gives right to the appellee who has appeal interest to appeal. So this fairly protects both parties' appeal right. Third, Sanction the abuse of litigation action. Mete out punishment to the abuse of litigation action to a certain extent. In procedure, court can punish by penalty. And in entity, opposite party can take a damage claim. Fourth, Improve the civil appeal elements' examination procedure. By examining the appeal, second instance court accept and hear it which accords with appeal elements. otherwise, to reject. So it can realize the value of civil appeal elements.