On The Principle Of Prohibiting Alteration With Prejudice In Civil Appeal

The principle of prohibiting deteriorative alteration with prejudice in civil appeal is an important principle in Continental Law Legal System.Although there is no concept of the against deteriorative alteration in Anglo-America law system,its essence is reflected in the appeal procedure.The principle against deteriorative alteration originated from Germany and it is the result of the confrontation with the common principle of appeal.Its core content is to restrict the judgment of the second instance to the scope of the parties' declaration of objection,which is an important embodiment of the doctrine of disposition right in the second instance procedure.The function of the principle against deteriorative alteration is to draw the trial bottom line for the appellant and prevent the surprise attack of judge from putting the pressure of appeal on the appellants and dampening the appellant's enthusiasm of appeal.From the perspective of legislation,China has not established the principle against deteriorative alteration.Although some scholars in our country see the article 168 of civil procedure law which is a hearing scope in second trial court as the legal basis of the principle against deteriorative alteration,there is a big different in protecting the interest of the party on the restriction of hearing range and sentence scope.It is a misreading and improper expansion of the legal provisions.In practice,the principle against deteriorative alteration has been accepted as an implicit judicial concept and applied to judicial practice.However,without the support of specific legislation,this practice not only has the suspicion of Judge Law-Making,but also leads to the inconsistency of judgment more easily,which hinders the realization of procedural justice.Based on the implementation of the doctrine of disposition right and the adaptation to the reform of the mode of litigation,our country should consider establishing the principle by clear legislation in order to provide clear guidance for the application of judges and parties.The pure prohibition of the principle against deteriorative alteration has the defect of one-sided protection of one party.Considering the public interest,it is necessary to establish an exception for the principle against deteriorative alteration.At the same time,as a local knowledge,the law is closely related to the realistic institutional context of a country.Therefore,when introducing the principle of the principle against deteriorative alteration,we should avoid blindness,and strive to form a positive interaction with the entire rule system of our country through appropriate improvement,so as to the principle against deteriorative alteration be fully brought into play.