Research On Act Preservation In Civil Procedure

In our appeal trial procedures,the court’s trial power is centered on the litigation rights of the parties,and the exercise of the trial power is also subject to the parties’ disposition and the procedure option.In order to give full play to the function of judicial power and litigation power and make them in a dynamic balance,the litigants’ litigation right must be restricted by the law and restricted by the judicial power in the process of exercising,so as to jointly promote the operation and progress of the appellate trial procedure.However,the Civil Procedure Law of our country has almost no substantive restrictions on the start of the appeal procedure,only the formal conditions for the parties to exercise the right of appeal.The law stipulates that the parties to appeal should submit the appeal petition to the court of first instance,but it does not stipulate the right of the court of first instance or the superior court to review the appeal.This means that the parties have the right of appeal of course,the parties of first instance can have the right of appeal no matter whether they win or lose the case to initiate the second instance procedure on the grounds of appeal,which inevitably leads to the practical problems such as litigation delay appeal,speculative and malicious appeal,which lead to the waste of judicial resources.From the perspective of comparative law,the civil appellate review system applied in many foreign countries and regions not only effectively controls the above phenomenon,but also greatly improves the efficiency of litigation and maintains the authority of the first instance civil judgment by regulating the appellate behavior by endowing the court with the substantive power of review of appeal.In the legislative cases of various countries and regions in the world,there are almost clear and specific provisions on the scope and procedure of appeal review,and it has strong operability.Strictly,China does not have a civil appeal review system at the system level.Therefore,on the basis of comparing the useful experience of the review system of civil appeal in foreign countries,the author constructs the review system of civil appeal in line with the actual situation of our country,and realizes the balance between the judicial power and the litigation power in the civil appeal procedure.Through the appeal review to realize the effective screening and diversion of appeal cases,the limited judicial resources will be allocated to cases with real relief necessity and legal value,the improvement of the efficiency of litigation and the implementation of the principle of good faith are of great significance in judicial practice,and at the same time,it is also a necessary measure to further improve our civil appeal system.This article is divided into six chapters:In the first chapter,the author introduces the background of the topic,and its significance in theoretical research,system construction and judicial application in combination with the current domestic legislation and judicial practice on the appeal system.The author collects and sorts out the existing research results on the review system of civil appeals,introduces the overall research ideas of the paper and the research methods to be adopted,and also briefly explains the innovations and deficiencies of the paper.The second chapter is an overview of the civil appeal review system.Based on the semantic connotations of appeal and appeal review,the author defines and compares the two similar concepts of appeal review and appeal permission.At the same time,the nature of the right to appeal is redefined.The special nature of the right of appeal thus leads to the theoretical basis for reviewing the appeals filed by the parties,and lays a theoretical foundation for the construction of a civil appeal review system in China later.The third chapter is the review and reference of the extraterritorial civil appeal review system.This chapter selects the legislative examples and judicial practices of the civil appeal review systems of representative countries in the common law countries and civil law systems.Based on this,it further analyzes the similarities and differences of the appeal review systems in countries outside the territory to learn from the useful experience of each country.This will help build a civil appeal review system in line with Chinese national conditions.The fourth chapter is a test of Chinese current civil appeal system.This paper analyzes the status quo of the civil appeal system in the current legislative norms and judicial practice.A series of negative effects caused by the absence of Chinese civil appeal review system,so the author finds out the reasons.It is really necessary and urgent to construct the civil appeal review system in China.Chapter V introduces the practice of our country exists the behavior of appeal review,the relevant provision on the small claims procedure and the lawsuit right of the third party without independent claim are beneficial explore of our country.It reflects the efforts made by our country to control the scale of appeal.As an effective pre-procedural mechanism to identify the appeal cases,the civil appeal review system is feasible to construct and implement in China.The sixth chapter is the conception of constructing the civil appeal review system in China.Based on the useful experience of the extraterritorial civil appeals review system,the author has determined the basic principles for establishing a civil appeals review system in China.The detailed design of Chinese civil appeal review system,including the subject of the review of the appeal,the method of appeal review,the conclusion and effectiveness of the appeal review,the relief of the appeal review,and the time limit for the review of the appeal review.In view of the abuse of the right of appeal,sanctions are also provided as a supporting measure.The author hopes to provide some ideas for the continuous improvement of Chinese appeal system.