The Civil Appeal Trial-research On The Principle Of Prohibiting Alteration With Prejudice

From the field of legal theory research,the prohibition of the emergence and establishment of the principle of prohibiting alteration with prejudice is relatively late,which is inseparable from the development of the "adversary system" litigation model system embodying the characteristics of the Anglo-American law system.In the field of the three major litigation laws,this principle has great significance.As a socialist legal system country,China's legal system is most similar to that of civil law countries.According to China's current Civil Procedure Law,it is still not clear that China has fully established this principle.However,in practice,there have been cases in which the judges of the court directly quoted the principle in the judgment documents,which fully shows that there is a disconnect between theory and practice.The core of the principle of prohibiting alteration with prejudice is to restrict the scope of judgment of the adjudicator.The foreign procedural law establishes the principle of appeal as an appeal condition and attached appeal system,and exerts a good referee effect.This article can be divided into 4 separate parts.The first part,the general discussion of the principle of prohibiting alteration with prejudice.By combing the derivative history of the principle of prohibiting alteration with prejudice,this part finds that it is developed from the principle of appeal commonality in Roman law.Its essence is the application of the "authoritarianism" litigation model and the "adversary" litigation model.It is also found that the principle of prohibiting alteration with prejudice is a general category in the three major procedural law,which is reflected in the domestic and foreign criminal procedure law and administrative litigation law.In addition,this part also elaborates on the definition of the principle of prohibiting alteration with prejudice change in the field of civil procedure law,the meaning of "non-interest" and the identification criteria and scope of identification.To put it simply,the principle of prohibiting non-interest change mainly refers to the fact that in the process of appeal review,there is only one appeal,and the result of the judgment of the appellant by the higher court is more unfavorable than the judgment of the court of the original court,unless the law There are other regulations."Non-interest" is detrimental to the appellant's interest in the judgment court in the court of first instance.The scope of“non-interest” includes the “non-interest” in the “Civil Procedure Law” and the procedural matters that can be disposed of by the parties based on their personal rights.The identification of "non-interest" should be judged on the basis of the judgment main text,supplemented by the judgment reason containing the cancellation power.The second part,this part explores the extraterritorial legislation and legal basis for prohibiting the principle of prohibiting alteration with prejudice in civil appeals.This part sorts out the legislation of major civil law countries,including Germany,France,Japan and Taiwan,and explores the legal basis of its existence in major civil law countries and regions.Finally,it finds that the legal basis of the principle is the punishment right.Doctrine and procedural justice.In terms of decentralism,it is mainly the freedom of appeal,and the scope of the referee should be within the appeal request.Procedural justice is mainly reflected in the prohibition of the principle of non-interest change,requiring the referee to be in a neutral position,and not being able to "override the referee" leading to unfair results.The third part,this part is about whether China has established a contending for the principle of prohibiting alteration with prejudice and based on relevant cases.This part responds to the debate in the theoretical circle of civil procedure law on whether the prohibition of the principle of non-interest change has been established in China.The author believes that according to the current laws and regulations of China and the provisions of judicial interpretation,it is impossible to conclude that China has fully established this principle.The main reason is that the scope of trial in the Civil Procedure Law cannot be simply equated with the scope of the judgment.China's Civil Procedure Law does not have a specific definition of the principle and no specific supporting implementation system.In addition,aside from the application of fair responsibility,the author cuts into the “dissuasion of smoking cases” from the perspective of prohibiting the principle of prohibiting alteration with prejudice,and finds that the second-instance judgment is suspected of violating the principle of disposition,and concludes that the principle of introducing non-interest change in China is very Strong reality requires conclusions.The fourth part,this part specifically proposes the legislative conception of introducing the principle of prohibiting alteration with prejudice change in China's Civil Procedure Law.This part firstly demonstrates that the system of civil procedure law in China already contains the legal basis for the establishment of this principle in the major civil law countries-disposition of power and procedural justice.Secondly,the author puts forward the following suggestions for the introduction of this principle.For example,the legislative provisions should be closer to the definition of the principle of prohibiting alteration with prejudice.Finally,the author's concern lies in the supporting system level that should be established when introducing the principle.First,the appeal interest should be used as civil The conditions for appeals,second,should be formulated with an accompanying appeal system to ensure the integrity of the introduction of the principle to the greatest extent possible.