Research On Collateral Appeal System

Continent law department have the value of collateral appeal system and this kind of system, generally in civil lawsuit system lies in mainly to protect the appellee who appeal expect have been full , gives up appeal right or appeal had been rejected , lets him use the appeal program that the appellor has lodged ,by the collateral appeal to change or discard the sentence of trial so to realizes both parties equal in attack and defence . this kind of system still can give up suitlike party the lucky psychology , cease easily suit and so on various value meanings, regret is, our country current " the civil procedural law of the People's Republic of China " only in 14th chapter 147th -159th clause have stipulated appeal system, but do not collateral appeal system. In theoretical circle with really engage in circle universal attention today of program justice, the author is regretful for the short of the theory of the collateral appeal system for the civil lawsuit of the People's Republic of China .So regardless of my ignorance, take the liberty to select the proposition of this paper. Include foreword and conclusion, this paper is divide into six parts totally:Foreword: In foreword part, the author have analysed the value of collateral appeal system preliminarily, have shown clearly in continent law department the appeal program of civil lawsuit universally exists collateral appeal system . Our country current " the civil procedural law of the People's Republic of China " have no this important system design , so to draw forth the writing intention of this paper.The first part is the analysis of legal principle of collateral appeal system. In this part, the author first for Germany, Japan, the French, Taiwan and Macau regions of our country civil procedural law in about collateral appeal system in the legislative stipulation compare research, in study fairly foundation on, concludingbriefly collateral appeal five features ,having the dependence on the appeal and the dual lawsuit position of both parties and the antagonism of purpose , the uniqueness of disobedient sentence and the combinedness of the appeal and the collateral appeal, have then analysed the essence of colleteral appeal, thinking it according with the essence of appeal more, final demonstrating that the collateral appeal has balanced the benefit of both parties, equal in attack and defence ; can give up suitlike party the lucky psychology , cease easily suit; encourage the party to accept the sentence of the trial, alleviate the burden of dangerous appeal and other multinomial functions.The second part is our countries lead into feasibility and the necessaryness of the collateral appeal . In this part, the author have first expounded four main reasons shattering Guomindang law thoroughly , lack political economic cultural enviroment, then legislative purpose and theoretical resource lack have caused collateral appeal system short of lose . Now the urgent need of our country lead into collateral appeal system, this is because of the need of social reform , the need of alleviating appellate pressure, the need of perfect appellate theories and the need of perfect relevant theory. Because of having gotten new knowledge for some theories of civil lawsuit , the ripeness of the knowledge of scope to the appeal , the breakthrough in " objective truth theory " , our country lead into collateral appeal system have feasibility.The third part is the perfection of our collateral appeal system. Its legal important requirement is what must have legal appeal exist, the appellee mention for appellor , must disobey the trial sentence of the appellor , must mention before word debate end , the appellor can't mention the collateral appeal again for appellee , must comply with legal program, then the author divides into five kinds of condition to discuss the relation of appeal and collateral appeal in detail.The fourth part is on the relation of collateral appeal and other traditional civillawsuit theory system In traditional civil lawsuit t...