Research On The Principle Of Prohibiting Adverse Change In Civil Appeals

The principle of prohibiting unfavourable alteration is an important principle in the field of civil procedure law.Its content is generally expressed as that in the case of only one party appealing,the most unfavourable consequence suffered by the appellant must not be greater than the rejection of the appeal request.Since the principle of prohibiting unfavorable alteration has not been clearly defined in the Civil Procedure Law of our country,the court of second instance has exceeded the appeal request and aggravated the civil liability of the appellant from time to time,which has seriously damaged the rights of the parties.The principle of prohibiting unfavourable alteration originates from the principle of affirming restraint which breaks the common principle of appeal in Roman law.It is a general principle guiding the scope of the second instance trial.Its application premise is that the appeal request(or incidental appeal)made by both parties is only less than the scope of the first instance trial,and the judgment result(including the main text and the adjudication)is applicable on the basis of res judicata.At the same time,the absence of elements,serious procedural errors and some judgments involving public interests are exceptions to the application of the principle of prohibiting unfavorable alterations.The principle of prohibiting unfavorable alteration plays an important role in realizing the purpose of appeal,implementing the principle of punishment and preventing sudden trial.This paper clarifies the disputes on the establishment of the principle of prohibiting unfavorable alteration,the appeal request and the interests of appeal,the scope of trial and the scope of adjudication,the function of correcting errors and the right relief in the theoretical level.Through the study of the specific practical application cases,four different perspectives have been found and analyzed in the practical field for a long time,and the obstacles to the determination of the principle of prohibiting unfavorable alteration have been summarized.Continental law countries represented by Germany and Japan and common law countries represented by the United Kingdom and the United States draw lessons from the principle of determination,supporting system and localization experience of the appeal system.In the overall system construction,we advocate the establishment of litigant-oriented litigation mode and the prevention of the expansion of the concept of "errors must be corrected".We should not pursue the absolute concept of "errors must be investigated".Instead,we should limit the scope of error correction to the scope of appeal,and when the public interest conflicts are involved,we can break through the scope of appeal of the parties.On the basis of Article 323 of Interpretation of Civil Procedure,the application of the principle of prohibiting unfavourable alteration in the second instance can be clearly defined.In order to express the extensiveness,it is not appropriate to directly stipulate the principle of prohibiting unfavourable alteration,but to determine the scope of the second instance judgment.At the same time,it is not easy to determine the exceptions to the application of the principle of unfavourable alteration of mechanism,except for the lack of elements and serious procedural err One step is definite to increase operability.In addition,it is necessary to establish a corresponding supporting system,including the starting procedure of appeal trial,the interpretation mechanism of judges,and the establishment of incidental appeal system.