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Research On The Scope Of The Appellate Review

Posted on:2021-03-25Degree:MasterType:Thesis
Country:ChinaCandidate:P ZhangFull Text:PDF
GTID:2506306245974999Subject:Civil Justice Practice
Abstract/Summary:PDF Full Text Request
The procedure of second instance in civil action is the basic system of civil action.Under the system of trial level in our country,the procedure of second instance has the dual function of correcting the incorrect judgment of first instance to protect the legitimate rights and interests of the parties and protecting the unified interpretation and application of the law.What is closely related to the realization of the second instance procedure function is the trial scope of the second instance court.Section 168 of the Civil Procedure Law and Section 323 of the Judicial Interpretation of the Civil Procedure Law establish the legal rules for the scope of the second instance trial of civil litigation,that is,the principle of binding the above claims as the central principle,taking the violation of the prohibition of the law or the harm to the interests of the state,the public interest and the legitimate rights and interests of others as examples Then.However,whether it is theoretical research or judicial practice,there is a lack of complete and comprehensive inductive boundary between the explicit meaning of the principle of appeal binding and the extension of the statutory exception rule,which leads to the dilemma of judicial practice.Based on this,this paper tries to determine the reasonable limits of the trial scope of the second instance procedure through the analysis of the typical representative cases in judicial practice.In addition to the introduction,the text is divided into six parts:The first part is the case profile.Through combing the case of "zhengzhou elevator dissuasing smoking case" and summarizing the dispute focus,it is clear whether the court of second instance has the right to make a more unfavorable second instance judgment than the first instance judgment in the case of only one party's appeal.The second part is the present situation of the practice of the second instance trial scope and the analysis of the origin of the problem.That is,based on the existing legal norms and practice of the typical cases to further clarify the source of the problem.At the level of legislative practice,according to article 168 of the Civil Procedure Law and article 323,paragraph 2 of the Judicial Interpretation of the Civil Procedure Law,the principle of appeal and the statutory exception rules for the scope of the second instance are determined;at the level of judicial practice,the relationship between the appeal and the scope of the second instance in judicial practice is reflected by demonstrating four representative cases;finally,the second is found out in the change of the concept and system of the Civil Procedure Law theunclear reason for the scope of the trial.The third part is the legal basis of determining the scope of the second instance trial.To observe the reasonable limits of the trial scope of the second instance from the level of the basic jurisprudence and system of the civil procedure law,and to determine the trial scope of the second instance according to the functional orientation of the second instance,the procedure construction of the second instance and the principle of punishment.The fourth part is the applied jurisprudence analysis of this case.First of all,the question of whether the first instance judgment in this case harms the public interest is considered to be the case of the first instance judgment harming the public interest through the logical inference of the jurisprudence,the comparison of the category cases and the value judgment;secondly,the question of whether the second instance judgment in this case violates the principle of disposition,under the premise that the first instance judgment does not harm the public interest,the judgment of the appeal request is determined and the scope of the appeal is compared with the scope of the second instance trial.The analysis of the legal rules concludes that the basic requirements of the principle of prohibiting the change of interests are already included in the legal rules of our country.On the premise that the judgment of first instance does not harm the public interest,the judgment of second instance in this case should abide by the principle of prohibiting the change of interests and must not make the unfavorable judgment compared with the judgment of first instance.Finally,through the analysis of the above three dispute points,it is concluded that the reasonable way to judge the case should be to confirm the judgment error of first instance and reject the appeal request.The fifth part is the study enlightenment of this case.One is to change the concept of litigation,gradually change from the inquiry of authority to the party's doctrine,and balance the two values of litigation justice and litigation efficiency.Second,the system is perfect,in order to give full play to the function of the appeal system and protect the legitimate rights and interests of the parties on an equal basis,we should establish the principle of prohibiting the change of non-interest and the system of incidental appeal in the second instance of the Civil procedure Law of our country.The sixth part is the conclusion of the article,which reaffirms the value concept of establishing the scope of the second instance trial,with a view to easing the value conflict of substantive justice and litigation efficiency.
Keywords/Search Tags:scope of trial of second instance, principle of binding appeal, principle of public interest, principle of disposition, principle of prohibition of non-change of interests
PDF Full Text Request
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