Research On The Relationship Between The Request For Civil Appeal And The Scope Of Appeal Trial In China

The relationship between appeal request and trial scope can be divided into four categories: appeal request has nothing to do with trial scope,appeal request is equal to trial scope,appeal request is smaller than trial scope and appeal request is larger than trial scope.The three cases mentioned above have appeared in Chinese legislation in different periods,while the fourth case belongs to pure logical deduction,so it does not belong to this article.The current civil procedure law and relevant laws and regulations stipulate that the scope of the appeal trial should be decided by the appeal request on the one hand,and on the other hand,the appellate court should be given the power to unilaterally expand the scope of the trial without being bound by the appeal request in the form of exceptional provisions.Therefore,it is reasonable to think that China belongs to the third case of the above classification in the relationship between the two.However,due to the vagueness of the legislative language,the relationship between the appeal request and the scope of trial is more flexible.Especially,the law does not clearly stipulate whether the parties have the right to change the appeal request in the appellate trial,which leads to various ways of handling the application by the appellate judge in judicial practice.At the same time,because the judicial practice around the exception of article 323,paragraph 2,of the judicial interpretation of civil procedure law has not yet formed a set of normative operating procedures,there are also errors in the application of the court of appeal and abuse of discretion.Therefore,in order to solve the problems in practice and further clarify the relationship between the appeal request and the scope of trial,this paper argues that the civil procedure law should add legal provisions related to the change of appeal request in order to enhance the stability of the application of law,at the same time,it should establish the principle of prohibition of unfavorable alteration and the system of incidental appeal,and reasonably limit the quotation of exceptions by the court of appeal.On the basis of form,the balance between the right of disposition of theparties and the right of supervision at the trial level of the court of appeal can be achieved.The text of this paper is divided into the following four parts,totaling more than 30,000 words.The first part is an overview of the relationship between the appeal request and the scope of the trial.It mainly discusses what is the appeal request and the logical classification of the relationship between the appeal request and the scope of trial.This paper holds that in china,as far as the relationship between the two is concerned,the appeal request is less than the scope of trial.In addition,on the basis of the above conclusions,this paper specifically discusses the impact of the change of appeal request on the scope of trial.The second part is the analysis of the problems and causes of the relationship between the appeal request and the scope of trial in our country.Based on the analysis of a large number of judicial cases,this part finds that there are many problems in judicial practice,such as the inconsistent attitude of the court of appeal to the application for change of appeal request and the abuse of exceptional provisions in order to break through the limitation of appeal request and expand the scope of trial.On the basis of the above questions,the paper further analyses the causes of the problem and provides methodological guidance for solving the problems later.The third part is comparative analysis.And examines the specific provisions of the relationship between civil appeal requests and the scope of trial in foreign countries and regions horizontally,and makes functional comparisons to absorb the reasonable core of the system in other countries or regions in order to achieve the regeneration of domestic laws.The fourth part is under the logical paradigm of the first three parts to put forward problems and analyze problems,and gives its own suggestions to solve the above problems.That is to say,under the current four-tier two-instance system,in order to solve the chaotic phenomenon of the application for change of appeal request in trial practice and the abuse of the provisions of article 328,paragraph 2,by thecourt of appeal,which improperly restricts the right of disposition of the parties,the problem of enlarging the scope of trial without reason should start from the existing provisions and improve the legislation.