| Civil appellate system is an important part of the civil judicial system. It cannot be replaced by other systems.The problems the civil judicial system of our country is faced with,such as "the system under which the second instance is final," "endless appeal," "the overall review(or de novo review)," "defects in the finality of the judgment of the court of second instance",are more or less related to the existing civil appellate system in our country.In order to make our existing civil appellate system more reasonable to help solve those problems,this dissertation introduces the civil appellate system of China and that of America,and makes a comparative study on the civil trial grade,the requirements of appeal,the scope of review,the standard of review and the civil appellate court proceedings of the two countries.It also analyzes the reasons for the differences between the civil appellate systems of the two countries, including social,historical,and cultural factors as well as other factors such as legal traditions,legal theories and guiding principles.Meanwhile,it makes comments on those procedures and puts forward the suggestions on improving the civil appellate system of our country.This dissertation consists of six chapters in addition to the preface and the conclusion.The main contents of each part are as follows:The preface focuses on the background of the comparative study on Chinese and American civil appellate systems as well as the contents,the approach and the purposes of the study.Chapter one introduces the civil trial grade system of China and that of America,analyzes the reasons for their differences,and makes proposals for improving our civil trial grade system.Different civil trial grade systems are in practice in different countries. No matter what system it is,its goals are the same:to achieve substantive justice;to guarantee the uniformity in the application of law;to defend the authority of the judiciary;to safeguard the correctness of adjudication.The ultimate goal of the civil trial grade system is to maintain the balance between judicial justice and judicial efficiency.In America,under the federal judicial system,there are three tiers of courts,with the federal district court as the trial court,the federal court of appeals as the appellate court,and the Federal Supreme Court as the court of last resort.In our country,there are four tiers of courts.Except for the local people’s court such as the district court or the country court,the intermediate people’s court,the higher people’s court and the Supreme People’s Court all can be the court of second instance,which is the court of last resort.The reasons for such differences are the different political systems of the two countries,the different need for the support from the judiciary at the earlier stage of the foundation of the country,and the different functions of the supreme courts of the country.The comparison between the trial grade systems of the two countries shows that the three-tier court system with the Supreme Court as the court of last resort is more reasonable.Such a system can help reach the final goal of the civil appellate system and,therefore,can satisfy the needs of modern civil litigation.Thus,based on our four-tier court system,we have to adjust the allocation of functions and powers among those courts,and establish a system with the Higer People’s Court and the Supreme People’s Court as the court of last resort in charge of the appeal cases form the court of second instance.Chapter two focuses on the implication of appeal,the objectives of appeal to the public and to the private individuals,and the functions of the appellate court.Chapter three analyzes the requirements for appeal in China and the appealability in America,makes comparison between them,points out the reasons for their differences,and puts forward proposals for improving the regulations on the requirements for appeal in China.In America,the main principle applied to appealability is the final judgment rule,which is understood by the Federal Supreme Court as a rule that "ends the litigation on the merits and leaves nothing for the(trial) court to do but execute the judgment." Such a rule is practically difficult to apply since it prohibits the parties from appealling from the trial court’s interlocutory orders,which may result in injustcie.As a result,both the Congress and the court establish some exceptions to that rule,such as the appeal from interlocutory orders according to the statutes,the collateral order doctrine,the death knell doctrine,and so on.The provisions of the Civil Procedural Law of our country on the requirements for appeal are general rather than specific.Scholars understand those provisions as the substantive requirements,which refer to the types of appealable judgments and orders,and the requirements in form, which includes the qualifications of the parties for filing an appeal,the time for appeal,the ways of filing an appeal,and so on.America is a common law country,while code is the main source of law in China;America attaches more importance to procedure,with due process as the guarantee for substantive justice,while in our country,the substantive law overweighs the procedural law.The differences in the legal traditions and in the legal concepts result in the differences between China and America in their contents and forms of requirements for appeal.Although there are some defects both in the appealability in America and in the requirements for appeal in China,the requirements for appeal provided in our Civil Procedural Law are more general and are likely to cause unnecessary wastes of judicial resources and inadequacy in procedural justice,which is unfavourable to the protection of the party’s substantive rights.Therefore,we have to make the requirements for appeal in our country more specific,especially those requirements for the second appeal,and establish the system of application for leave to appeal to the Higher People’s Court and to the Supreme People’s Court.Meanwhile,we have to make the written order applicable in a wider range in the court proceedings and add more types of appealable written orders to the existing provision in the Civil Procedural Law.By doing so,we will make the requirements for appeal in our country more reasonable and more favourable to the achievement of substantive justice with the guarantee of procedural justice.Chapter four makes contrast between the scope of review in China and that in Amercia,points out the reasons for their differences,and makes suggestions on the improvement of the scope of review in China.The appellate court in America corrects only reversible errors while the court of second instance in China corrects all potential errors;and the party autonomy and the adversary system are in practice in America while the institutional power of the court and the inquisitorial system are in practice in China.As a result,the scope of review in America is different from that in China.The reversible errors pointed out in the appeal cases reviewed by the Court of Appeals in America must be kept in the record of the trial court.In addition,during the trial of the case,the losing party must have made objections to the orders rendered by the trial court and could be corrected by the trial court.In China,the court of second instance reviews the appellate cases both on the factual issues and on the legal issues.Such review is not limited to the scope of the appeals filed by the party.Although such expanded scope of review is not in conformity with the provision of the Civil Procedural Law of our country,it is justifiable in practice and there is a relevant provision in the judicial interpretation of the Supreme People’s Court.Thus,while we have to change our guiding principles of appellate review,we have to legalize such expanded scope of appellate review by including it in our Civil Procedural Law.Besides,in order to make our scope of appellate review more reasonable,we have to improve our objection system in practice,and impose strict limitations on the scope of review by the court of last resort.Chapter five discusses the standard of review in China and that in America on questions of fact and on questions of law,analyzes the reasons for the differences in those standards and makes suggestions on improving the standard of review in our country.With the jury system in America,the division of responsibilites between the jury and the judge is definite and clear.As a result,the Court of Appeals does not review the fact-findings of the jury,and it applies the principle of clear error to the findings made by the judge in the bench trial. As to questions of law and mixed questions of law and fact,the Court of Appeals tends to undertake de novo review.Without the jury sytem in our country,with the superior court exercising its ex parte supervision over the inferior court,and with the principle of "taking the facts as the basis and the law as the criterion",the court of second instance usually undertakes an overall review on the appeal case,including both the questions of fact and the questions of law.As a result,the court of second instance concentrates on the objective truth and attaches importance to the justice in individual cases.It weakens the authority of the court of first instance and neglects the judicial efficiency and the function of the court of second instance to keep the uniformity in the application of law.In order to achieve the objectives of the appellate system to the public,we have to proceed from the actual conditions in our country,establish the standard of review by the court of second instance with its priority to the review of questions of law,and the standard of review by the court of last resort only on the questions of law.Chapter six is about the detailed appellate proceedings in civil actions. It discusses the differences in those proceedings,especially the suspending bond,the review of the record,and the oral argument between the counsels of the parties,and analyzes the reasons for those differences.Meanwhile,it suggests that with reference to those advantages in the appellate procedure in America,we should put into practice the compulsory system of having the lawyer as the litigation agent in the proceedings in the court of second instance.It will effectively prevent parties from abuseing their right to appeal and will help the appellate judges in reviewing the questions of law. In addition,we have to set up appropriate appellate proceedings for filing appeals to the Higher People’s Court and to the Supreme People’s Court.In the conclusion part of the dissertation,it points out that with references to the American civil appellate system,we have to improve our civil appellate system under the existing legal system in our country.The civil appellate system improved in this way will be favorable to protecting the party’s litigation rights including his right of appeal,to maintaining the judicial correctness,uniformity and authority,to achieving substantive justice with the guarantee of procedural justice,to saving the judicial resources,to improving judicial efficiency,and to striking a better balance between judicial justice and judicial efficiency. |
