A Study On The Trial Mode Of Civil Second Instance In China

In the trial methods,different trial methods have their own functions and values.In terms of the choice of the trial method of second instance,according to legislative provisions,the principle of hearing in court should be followed,with the exception of non hearing.However,many problems have arisen in the process of applying the second instance trial method.In order to exert the functions and values of different trial methods,as well as the trial level functions of the second instance procedure,and solve the problems existing in the second instance trial method,the author believes that it is necessary to improve the second instance trial method.Starting from the operation of the trial method of second instance,in practice,the trial method of second instance is not the principle stipulated by the legislation,and the non trial method is the exception.Instead,it is alienated into the non trial method.Along this line of thought,the author found that there are problems in the applicable standards and the trial process of the second instance trial method.Firstly,in terms of applicable standards,judges have too much discretion in deciding whether to hold a trial,resulting in overly subjective applicable standards for non hearing;Secondly,during the trial process,there has been a confusion of methods and manifestations of non court hearings.At the same time,during the process of appearing in court for questioning,there are also phenomena of clerks,assistant judges presiding over the proceedings,and judges attending in absentia.From the decision not to hold a court hearing to the specific trial process,there is a lack of effective supervision means,resulting in the lack of protection of the litigants’ litigation rights;Finally,during the trial of the second instance,there were also issues of formalization,formality,and improper division of trial stages.If these issues are not resolved,it will affect the implementation of the second instance level function.In order to better solve the problems existing in the trial method of second instance,the author seeks reasons from legislation and practice,mainly focusing on the unclear and unreasonable legal provisions,the pressure of too many cases and too few people,and the judges’ judgment thinking and behavior preferences.Based on the above reasons,the author will solve the problems existing in the trial method of second instance from the following perspectives.First of all,we should return to the trial pattern of taking the second instance trial as the principle and the non trial trial as the exception.Secondly,we should revise the applicable standards of the second instance trial method to avoid the excessive scope of application of the non trial trial.Then,it is necessary to clarify the specific process of non trial,strengthen personnel management during the trial process,and increase the channels for parties to disagree with the non trial method.Finally,as far as the trial method of the second instance is concerned,on the one hand,it is necessary to correct the concept of judges blindly pursuing procedural simplification,so that judges can establish procedural thinking,and not affect the parties’ pursuit of procedural justice in order to excessively pursue litigation efficiency;On the other hand,it is necessary to adjust the court investigation and court debate stages,comply with the inherent logic between facts and law,and improve the efficiency of the second instance trial.