Exploration On The Construction Of Incidental Appeal System In China

In China's judicial practice,there are many cases where one Party fails to file an appeal in time due to many reasons such as reluctantly accepting the judgment of the first instance or being tired of litigation.The appellee can only be in a passive defensed status and cannot be allowed to file an appeal again under China's current valid appeal system.The appellee cannot represent appeal and dissatisfaction via the second instance when appellee has lost right of appeal,because the China's principle of restraint on appeal,called “the principle of prohibiting alteration of interest”in the civil law system,restrain the hearing scope of the second instance,which is already contrary to the principle of equality in litigation.The incidental appeal system,applied generally in civil law system,can play a vital role in dealing with above problem,due to functions exerted by the incidental appeal system,such as balancing the litigation status of Parties,implementing the right of disposition of Parties,respecting Parties' procedural subjectivity and implanting the idea of adversary system.The incidental appeal system provide the appellee,even if the appellee has lost the right of appeal,with another opportunity to express dissatisfaction,where the appellee can be in an equal litigation status,debating fiercely with appellant,to form a confrontational pattern.“Stones from other hills,can learn.”It's feasible to appropriately learn and transplant litigation idea and institutional elements,attempt to construct,according to native judicial practice,incidental appeal system adapting native national conditions and law idea.There will be three parts to explore the incidental appeal system.The first,clarify the definition and general features of the incidental appeal system;expand the detailed discussion on whether incidental appeal is appeal,and discuss two main completely opposite views:”appeal”and “non-appeal”;compare the incidental appeal system with “the principle of prohibiting alteration of interest”and claims' additions and alteration or counterclaim.Any system's transplanting shall be fit to native national conditions and law environment,so does the incidental appeal system,otherwise the system cannot survive in unsuitable law environment.The second,focus on discussion about necessity and feasibility of introduction of incidental appeal system.The necessity is demonstrated by four theoretical elements:intrinsic requirement of the principle of equality in litigation,achieve procedural subjectivity,respect the right of disposition and maintain procedural stability and judicial authority.The feasibility is demonstrated by changes of native theory,like gradual generation of adversary system,and the good operation illustration in extraterritorial country—German,Japan,France,and the region of Taiwan and Macao in China.The third,attempt to complete the construction of the incidental appeal system of China via several necessary elements:the relationship between main appeal and incidental appeal,subjectivity,period,scope,appeal element,restriction.