On The Construction Of Civil Cross Appeal System In China

With the in-depth development of the thought on the rule of law with Chinese characteristics in the new era,the guarantee of equal rights of the parties in the litigation procedure,achieve the equilibrium of the value of procedural justice and substantive justice and the rule of law targets become our unremitting pursuit and development trend of the reform of civil procedure,civil across appeal system as the civil law countries and regions set up a lawsuit system,the connotation of the system in accordance with the value pursuit of the current reform of civil procedure in our country.Civil across appeal grants a special way of relief to the appellee who has not filed an appeal within the appellate period but passively enters the second instance procedure,that is,the right of across appeal attached to the party who has filed the appeal legally.In other words,under the background of limited trial of the second instance in China,civil across appeal brings the appeal of the appellee that was not tried or accepted into the view of the second instance,the scope of the second instance trial is legally expanded,and both parties are in an equal position of attack and defense in the second instance procedure.The construction of this system can effectively solve or alleviate some of the existing civil litigation system in China,for example,passive defensive imbalance into criminal procedure leads to the parties,one-sided benefit changes not prohibited under the principle of entity injustice,public power caused by too much discretion to the judicial credibility decline,and so on and so forth.In addition,the principles of equal litigant rights and punishment,as well as the comprehensive values of balancing procedural and substantive justice to a certain extent,reasonably restraining appeals and punishing malicious appeals,which are contained in the system of incidental civil appeals,are in line with the core ideas and policy orientation of the current reform of the system of civil litigation in China.In civil procedure in our country gradually,therefore,the development trend of motors,structured,appropriate reference and transplantation of the civil law system of across appeal litigation concept and system elements,building a civil across appeal system in conformity with the characteristics of China’s national conditions,becoming a new idea of exploring equal security,accepting judges,saving judicial resources.The author intends to study the civil across appeal system through four parts.The first part clarifies the basic situation of across appeal system,first defines the definition of across appeal and summarizes its basic characteristics.Then,it discusses in detail on the nature of the across appeal.Then the legal basis and system function of across appeal are discussed.The second part,some typical continental law system countries and our country Taiwan,Macao civil across appeal system,analysis the overall and regional appeals process running environment and the rules of the similarities and differences,the system of across appeal system of across appeal to explore the applicable value in other civil law countries and regions,and local building civil across appeal system in our country.The third part discusses the necessity and feasibility of constructing the civil across appeal system in China.In the necessity demonstration,starting from the shortcomings of the lack of the civil across appeal system in China’s current civil procedure legislation process,taking typical cases,judicial data,research results and other samples as analysis samples.It sums up the conflict between disciplinary principle and judicial discretion,the dilemma between procedural justice and substantive justice,and the contradiction between defense appeal and judicial resources,and points out the concrete effects of civil across appeal system in overcoming the above disadvantages.Feasibility analysis,from the overall trend of judicial reform,the development and change of litigation mode,the general mass value identification three aspects to demonstrate the feasibility of China’s construction of civil across appeal.Finally,in the current system on the basis of the review and thinking of,combined with countries outside and our country Taiwan,Macao system inspection after thinking,form "theory introduced,principle foundation,rule" landing system structure,the system of across appeal to our country civil to specific provisions,whether in our country should establish civil across appeal system on the empirical research to argue that Thus draw a relatively strong and credible conclusion.