Research On Civil Incidental Appeal

Incidental appeal is derived from European Civil Procedure just as an elaborate program setting to ensure judicial fairness, it is a relief proceeding and Technical system to balance litigation rights set up in the second trial, which is not only in the pursuit of equal rights but also expressed concern for efficiency. It is a common practice in many countries, such as Germany, France, Japan and other countries, Taiwan, Macao's civil procedure law also set up this system. The system also achieves satisfactory results in practical operation.This article is divided into three parts.Part One of this article starts with the basic theory of incidental appeal, using a research method of comparative analysis to define the conception, incidental appeal, briefly speaking, referring to lodge an appeal attached to the appellant's appeal. Through the elaboration of the concept, revealing the characteristics of this system as a special relief proceeding,there is great dependence between incidental appeal and the main appeal on the one hand, manifesting the institution and survival of incidental appeal depend on the main appeal to a large extent. On the other hand, incidental appeal also has its own relative independence. To study conveniently, we divided incidental appeal into two categories, that is depend incidental appeal and non-independent. Secondly we discuss the nature of incidental appeal, incidental appeal is an appeal on the condition that it fits the elements of an appeal. But if not, it acts as a measure against the principle of reformation in peius. Thirdly we elaborate the main function of incidental, that is, making the parties choose procedures rationally to prevent abuse of appeal; balancing the interests of both parties; ensuring the realization of purposes of an appeal, ensuring procedure stability and authority of justice. Finally, we discuss the theoretical basis of establishing this system, that is, the principle of reformation in peius, the principle of action and equality, procedural justice and economic litigation.Part two focuses on discuss the necessity and feasibility of introducing incidental appeal to China. China's current civil procedure law is more inclined to the protection of appellant's rights, failing to effectively balance the rights of two sides, it will impair justice without relevant system to cooperate. Since incidental appeal is not provided, appeal becomes the only one remedy, if one party gives up the right to appeal, he will be placed in a passive defensive position in later appeal procedure. Incidental appeal can correct the defects and make it more reasonable. Therefore it is necessary to introduce it to China. In addition, with the propulsion of judicial reformation, changes in the concept of civil litigation and the deepening reformation of appellate proceedings, it is feasible to introduce incidental appeal to China.Part three is the article's ultimate goal: to build incidental appeal in our country. Through the examination of China's legal environment, drawing on the advanced judicial practice of foreign countries, on these ground proposed the composition of incidental appeal, the related system needed to perfect. Finally, discussed and elaborated other relative issues.At last, making the conclusion, that is, we should introduce incidental appeal to make current civil procedure perfect, realizing the equality and efficiency of appeal system, protecting procedural rights of both parties and making the whole civil procedure more rational.