The Defects And Reform For Dualism Trial Standard In Second Instance Of Civil Trial

Judicial justice and efficiency is a world wide topic. The modern judicial concept under this theme requires scientized procedure system and legitimate performance. The Judicial reform in our country is developing toward this aspect. However, the defects of current Civil Procedure Law have not been attached enough importance. The law adopted dualism in the field of revision of a judgement and remand for new trial, namely, Court of Second Instance will amend the original sentence or remand a lawsuit according to the standards of whether it is non liquet and the procedure is legitimate after the appeal. It looks like meticulous, but if you analyze with the principles of legislative spirit and procedural justice, you will find that it will bring the performance of revision of a judgement and remand for new trial in a mess in practice according to the above standards. The reason is the facts and the procedure are unified under the true legal concept, namely, the non liquet in the meaning of legal facts is due to insufficient procedure, and otherwise non liquet is due to improper or illegal procedure. It is improper to regard them as parallel relationship.This article suggests setting up a unified standard in the trial of second instance. First of all, it can limit the reasons of amendment in legal mistakes, including the erroneous identification of legal facts , erroneous accusation , erroneous discretionary standard of responsibility and improper discretionary rights in the trial of original instance. In particular situation, the court of second instance should remand after the fact is clear through investigation. Secondly, it can limit the reasons of remand in illegal procedure. The illegal procedure includes matter-of -course illegal procedure and putative illegal procedure. It will be a pivot in the future procedural system reform.