Research On The Civil Appellate Censorship In China

The appellate censorship is a process by which the court examines whether an appeal filed by a party should be accepted by the court.It is also an important link between the first and second trial procedures,which not only related to dispute resolution and protection of private rights,but also realize the purpose and effect of the appeal procedure.The appellate censorship in our country has changed little since its establishment.Although the reform of civil trial methods has been fully carried out since 1990 s,the first instance and retrial procedure have always been the focus of the reform.The research and practice in the reform of appellate trial procedure are mostly focused on the substantive trial of appellate cases,and the appellate censorship has not received enough attention.Therefore,the unscientific and unreasonableness that existed when the appellate censorship was established still exists today.The existing appellate censorship necessary review content,and the right of appeal is considered a universal right,appeals process is very easy to access,resulting in cases that are not necessary to appeal being heard.The court of first instance was granted the right of preliminary examination,but lacked the norm for that right.Which may prevent the parties from exercising their right of appeal,or lead to the appellate censorship become a procedure for the instrument of appeal to be transmitted between the two levels of the courts.The misalignment between the appellate censorship and the pre-trial preparation process inevitably prolongs the litigation time.The defects in the appellate censorship result in the failure of the screening function,which not only wastes the limited judicial resources,but also detrimental to the protection of the parties' legitimate rights and interests.This paper summarizes the legislative history and current situation of the appellate censorship in our country,looks at the practical application,points out the problems existing in the institution,and combines theories of litigation values,purpose and function of appeal,appeal review mode,elements of litigation to analyze the causes of the problem,and draw lessons from appellate censorship reforming in other country,then put forward specific suggestions on how to complete the appellate censorship in our country.This paper is divided into three parts as follows:Chapter ? legislative history and current situation of the appellate censorship.This chapter summarizes the related provisions on appellate censorship since Civil Procedure Law of the People's Republic of China(trail implementation)passed in 1980 s,and analyzes two specific parts of appellate censorship in the current Civil Procedure Law of the People's Republic of China: the party's appeal and the court's acceptance of the appeal.Chapter?problems and causes of current appellate censorship.This chapter analyzes the current legal rules and judicial practice,points out the reasons why appellate censorship plays a limited role in practice.Then based on the theories above the objective and true litigation values,preset purpose and function of appeal procedure,appeal mode,lacking and confusion of litigation elements,res judicata,explore the source causes of defects in the appellate censorship.Chapter ? opinions on improving civil appeal censorship.This chapter aims at the problems in the current appellate censorship,compares and analyzes the civil appellate censorship in some foreign countries and regions,then proposes specific ways to improve the civil appeal censorship from the aspects of review content,subjects and procedures.