In the first instance judgment not divorce case, the plaintiff's appeal, the court of second instance can directly to the issue of divorce, the Supreme People's court "on the application of" several problems of Civil Procedure Law of the PRC "opinions" article185Clearly stipulates: "the verdict not divorce case, on appeal, the people's Court of second instance shall think divorce, can the parties on a voluntary basis, and child support, property together with the mediation, the mediation fails, the remand." Therefore, the people's Court of second instance shall not divorce case to trial, not directly be sentenced to divorce, that is to say, a judgment not divorce case, the second instance can only be maintained or mediation or remand and not to.

The reason that the law made special provisions, because of divorce cases compared with general civil cases, has its particularity, it mainly solves the divorce or not, but also directly relates to a series of problems raising children and the division of property, a judgment is not divorce, will naturally not pin any treatment for child support and property division of these problems. If the second instance court commuted in direct grant divorce, certainly in the judgment of the child support and property division made together with treatment, which will appear in the same sentence, both the second trial content, strange phenomenon and the first trial of the content, which will obviously violates the two-tier trial system.

Note that, if a judgment of divorce, the court of second instance judges are not subject to the restrictions, this is because no instance is maintained or changed, will not be deprived of the right of appeal in order to solve the problem of child support and property condition. So, in the judgment of divorce cases on appeal, the people's Court of second instance must distinguish different situations corresponding treatment.