| The new attack and defense methods in the civil second-instance refers to various kinds of factualclaims,disputes,defenses or evidentiary methods that were not legally proposed before the verdict of the first-instance procedure,but are first raised in the second-instance procedure.Under the requirements of the lawsuit promotion obligation and the principle of good faith,in the second-instance procedure that has been fully guaranteed by the first-instance procedure,in order to accelerate the efficiency of litigation and the purpose of centralizationof trial,it is necessary to restrict the new attack defense methods of the second-instance,and to be based on Its review-level tasks and value orientation should be constructed separately from the first-instance procedure.The civil law countries and regions have very mature restrictions on the new attack defense methods for second-instance trials,but the theoretical and practical circles in Chinahave not paid enough attention to them,nor have they provided comprehensive and specific provisions in the Civil Procedure Law.To some extent,the "Judicial Interpretation Of Civil Procedure Law" in 2015 stipulates the limitation of proof time,which reflects the limitation of the evidence level in the new attack defense method.However,due to the uncertainty of legal consequences and the lack of claims,the limitation of proof has not fully complied with the trend of timely doctrine and cannot achieve the above purpose.Therefore,based on the judicial situation of our country,the core issue of constructing a second-trial new attack defense method limitation system that is suitable for the construction of civil litigation in China is to limit the extent to which the new attack defense method is proposed in order to seek leniency and moderate limit the scale.The body of this paper,excluding the introduction and conclusion,will start from the following four parts.The first part is discussed the definition of the new attack defense method and the mode and function of different second-instance procedures from the perspective of the theoretical context,and on this basis discusses the legal basis and function of the limitation of the new attack defense method in second-instance.Accelerating litigation procedures is not the system The sole purpose of the construction is based on the requirements of the parties ’litigation promotion obligations,and at the same time,the protection of the other party ’s procedural interests and the implementation of its own liability principles under the premise of full guarantee in the first instance should be considered.The limitation ofthe new attack defense methods in the second instance can reduce the appeal rate of the parties,improve the litigation efficiency,and promote the centralization of the first instance procedure.The second part expounds the current problems of our country in restricting the new attack defense methods of the second trial from the perspective of problem consciousness,including the content scope,trial level differences,principle basis,peripheral measures,and remedies.Under the background,the pressure of judicial practice and the initial results brought by the reform of the judicial personnel classification system further point out the necessity and feasibility of solving the above problems from the perspective of trial efficiency,specification refinement,and the direction of the rule of law.The third part introduces the system of restrictions on new attack defense methods in the second trial of different countries and regions of the civil law system from the perspective of comparative law,including Austria,Germany,Japan and Chinese Taiwan.It can be seen from the comparison that the restrictions of these countries and regions are common,but also have their own uniqueness and differences.These differences are only the differences between the rule of law in the country,the judicial environment,and legal awareness.There is no distinction between advantages and disadvantages.Of course,the construction of the new second-round attack defense method in China must learn from its experience and prevent closed-door manufacturing.It must also root in our judicial environment and seek the path that suits our country.The fourth part expounds the specific suggestions for improving the restriction mechanism of the new attack defense method of the second trial in China from the perspective of the balance between "efficiency" and "fairness",including the comprehensiveization of the restriction object,the clarification of the restriction requirements and the improvement of the surrounding measures,Under the guidance of the principle of allowing exceptions and restrictions in principle,our country ’s second-trial new attack defense method restrictions have practical feasibility. |
