On The Principle Of Prohibition Of Alteration With Prejudice In Civil Appeal Trial

Civil law countries generally stipulate that the decision of the appeals court is "limited to the extent of objection to the application" in the civil appeals trial.Chinese scholars introduced the provision as the principle of prohibition of alteration with prejudice,and defined that when only one party appeals,the appellant's judgment against the appellant cannot make it more disadvantageous than the first instance.However,this understanding is one-sided.The principle of prohibition of alteration with prejudice is the implementation of the theory of procedural law of disposition right doctrine in civil law countries in the appellate procedure.Proceeding from the dispositional approach,the meaning of the principle of prohibition of alteration with prejudice is not the general definition of "prohibition of change of non-interest",but that "when only one party appeals,the appellate court shall revoke or change it within the scope of the parties' appeal." Prohibition of change of non interest is also prohibition of change of interest.The essence of this principle is that the judgment of the appeal court is bound by the scope of the appeal.Establishing the principle of prohibition of alteration with prejudice is not only conducive to the realization of procedural justice,but also an inevitable requirement for the right of action to restrict the right of trial.In addition,in judicial practice,there is a sense of refereeing to apply the principle of prohibition of alteration with prejudice,but the unclear and insufficient understanding of this principle has led to confusion in application.The need to unify judicial practice also requires the law to respond.In China's current civil procedure law,the principle of disposition is not the absolute right of disposition in the civil law system.Article 168 of the "Civil Procedure Law" cannot form a compulsory constraint on judgments.Therefore,the current legislation in China cannot be used as the basis for the application of this principle.Establishing a discussion on how to regulate the principle of prohibition of alteration with prejudice in China can be started from two levels: perfecting the current judicial practice and proposing legislative proposals.On the one hand,in practice,The judge usually uses "the party did not appeal" as the reason for the judgment to invoke this principle,but the expression only expresses respect for the party's right to appeal.The principle of prohibition of alteration with prejudice is to protect the interests of the appellant.Its reasonable expression should be "because this part of the error is beyond the scope of the appellant's appeal",the court will not correct it.The Court of Appeal of China has both the functions of relief and error correction.The court can be exempted from the principle of prohibition of alteration with prejudice in the situations of "violating the prohibition of laws","damaging the legitimate rights and interests of others" and "damaging the public interest" and change the sentence in accordance with the authority.The appellate court's application of these three exceptions should be used with caution in order to prevent damage to disposition right of parties.On the other hand,Article 168 of the Civil Procedure Law is amended to "the court of second instance shall make a judgment within the scope of the party's appeal." Adopting this method to construct is not only in accordance with the provisions of the original legislative intent of correcting the full trial of the appeals court,but also severely interfering with the party's power of adjudication,and also has an intimidating effect that the judge can only decide within the scope of the appeal request,so the court hearing naturally revolves around appeal.In order to balance the protection of the appellant by the principle of prohibition of alteration with prejudice,China should also establish an incidental appeal system.