Interpretation of the new civil procedure law: 151st [range] of appellate review

Article 151st the people's Court of second instance shallAppealRequest the relevant facts and the application of the law review.

This article is about [explain]The scope of appellate reviewRegulations.

The people's Court of second instance trial of a case on appeal, the appeal shall review the facts and the law. This requirement, the people's Court of second instance shall examine the following two aspects in the trial of a case on appeal: one,Appeal to the fact, i.e.The appellant's original judgment, ruling to revoke or change parts,Advocating civil rights have no basis in fact review.IfThe appeal that relates to the facts of the case, i.e.The people's Court of first instance shall be a comprehensive review of all the facts of the case are identified, the evidence is sufficient, is not whether to distinguish. The proposed new facts and evidence in the second instance, the people's Court of second instance shall examine and verify. The second,The parties concernedAppealRequest to a judgment, ruling the contents in the application of law is correct, review.IfAppealAll content involving a judgment, ruling for the request, a judgment, ruling all matters of applicable law will be reviewed.

In accordance with the provisions of this article,The second review limited to the scope of the appeal,Don't make a comprehensive review of generalAnd, the1982Years of civil procedural law (Trial) compared to a comprehensive review of the principles stated, is a major change. The Civil Procedure Law (Trial) of the original provisions:"The people's Court of second instance must be a comprehensive review of the people's Court of first instance facts and applicable laws, not byAppealRange limit."Here is a very important problem, that is how to determine the scope of trial of second instance. Simply by the court of second instance shall hear and decide what matters, the key question is whether the court of second instance shallThe partiesAppealApplication of facts and legal request outside of the review.This problem relates to the parties to the civil rights of disposition and the guarantee law implementation of these two aspects.

The parties have the right to dispose of the civil rights. If the parties do not mentionAppealMatters, that the partyNo dispute about it, or the original though controversial, but the parties to a trial by judge no longer dispute.Neither the dispute, of course there will be no dispute, the court does not need to hear.If the parties do not dispute the parties to accept, that a trial judge, although some matters to the detriment of, or damage the interests of the parties, but to give up their rights, or the rights of parties disposition,The court should respect the party's right of disposition,It is not necessary to review this matter facts and application of law.

On the other hand, to ensure that the principles of law has been implemented is the duty of the court,The procedure of second instance settings is to correct the procedure of first instance judgment error.Judgment of first instance since the existence of the facts, the wrong application of law, destroyed the legal principles of implementing, damaged the authority and seriousness of justice. If the procedure of second instance is not corrected, the legal establishment of second instance procedure to be lost, the second trial of first instance procedure to correct the error function set can not be achieved. From this point, it seems to the procedure of second instanceAppealCase review should not be limited to the parties concernedAppealPart, regardless of whether the parties request, the judgment of first instance in the mistakes must be corrected.

The two aspects are reasonable, but their conclusions are different. In the law determines the range of hearing procedure of second instance and must be based on a determination principles, for matters is limited to appeal for review or the first instance on the comprehensive review must choose one. From the world of civil litigation legislation and practice,Most countries choose trial is limited to the scope of the partiesAppealThe scope of the request, in principle only onAppealRequests the facts and application of law for trial.But a few of the provisions of the state, the procedure of second instance may not be subject to litigation request scope limit, determination of the judgment of first instance of the facts and the applicable law for the comprehensive review. Therefore, the understanding of this issue are not uniform. But at the same time, the majority of countries the understanding on this problem is basically the same, it seems more and more is taken into accountRespect for the parties to the civil right of the.

However, the problem is not so simple. Our country1982Years of civil procedural law (Trial) of second instance procedure provides a comprehensive review of principle, also belong to the"A few countries"The list, but can not say that this provision is not respect the civil rights of the litigant's right of disposition. Any one country's legislation is based on its own national conditions and the actual circumstances, formulate laws from the actual. For civil procedural law (Trial) is in the initial stage of reform and opening up, the legal system is not perfect, legal consciousness is weak, the lawyer rarely, people do not understand the procedure, do not understand the appeal, of course, also do not know how to appeal. If the provisions of the procedure of second instance is limited to examine the parties matters appeal, will be because people do not understand actually damage their civil rights, not to mention the parties to respect the right of disposition problem. Therefore, the provisions of the comprehensive review of the principles, it is respect for the rights of the parties, to the civil rights of the litigant fully protect. At that time, the provisions of this principle is entirely correct.1982Years of civil procedural law (Trial) after the implementation of reform and opening up, with the deep, the rapid development of economy, the establishment and strengthening the legal education of China in the deep and the team of lawyers, legal environment has changed greatly, increasingly sound legal system, enhance the people law consciousness, the lawyer law service work is also in full swing.1991Modify the civil procedure law, according to changes in the situation, for the second instance procedure forAppealReview of the case in accordance with the provisions of the most national principle.From the practice of more than ten years see,1991Modification of civil procedure law to take limited to partiesAppealFacts and legal requests for review principle is appropriate.

There is a need to explain,The provisions of this article the second instance procedure to examine the litigation requests in the interpretation and application of the principle is not absolute. The disposition of the parties to fully respect, but also to ensure the implementation of the principle of law, correct illegal behavior. Both are indispensable, must carry on the comprehensive balance, in order to maximize the respect for the rights of the parties, to maximize the protection of the correct implementation of the law, maintain public order and the interests of the whole.In foreign countries, this review principle is not absolute. Such as the German Civil Procedure Law Article519Article2Regulations."(1Lawsuits) should be empowered to investigate: accusation is whether to allow the legal way, whether within the statutory period to file a complaint and made for books. The lack of one of the above conditions, the indictment dismissed as illegal. (2The referee) without words in the ruling to debate; this ruling, can bring immediate counterappeal, but to the same decision can be limited appeal is filed."According to the above provisions, the parties appeal outside matters, in addition to the legitimacy of the elements of the appeal, the court of second instance shall not review principle. Let me put it another way.The court of second instance trial matters not appeal outside, but events except the trial appeal only appeal whether legal issues.China's Taiwan region have similar provisions. Therefore, matters to appeal beyond the court of second instance, in principle is not heard, but for the appellate whether legal issues, the court has the right to review. This is becauseAppealLegal problems, related to theAppealIs established and the procedure of second instance is started.

Whether the parties have the right to put forwardAppealThe problem, in our jurisprudence is generally not as the review procedure of the second principle issue, although belonging to review the second instance procedure principle in legal logic problems. We discussed whether the law circle of China will review the principle problems of absolute mean, although the party inAppealThe request is not involved, but there was a violation of the legal prohibition of or damage the interests of the state and social public interests of the first trial in the case, or the court of the first instance judgment violates the legal provisions or damage the interests of the state and social public interests, the people's Court of second instance is take"Don't tell"Principle.

If a case is the problem of illegal illegal or judge, the people's Court of second instance shall carry out the judgment to determine the scope of review.The law of the parties to respect the right of disposition, but to see the punishment Is it right? He could dispose of the right to.If the behavior of the parties or a trial not only the interests of the other party's interests, but also damage the interests of the state, social and public interests, even if the injured party in the appeal does not advocate the rights, the people's Court of second instance shall correct it. For example, the contract law of our country specified in section fifty-second of the damage the interests of the state, the collective interests or the public interests of the invalid contract. This kind of contract dispute parties on some matters in theAppealThe request is not involved, the people's Court of second instance could not be"Don't tell"As an excuse not to review. Because of theseAppealThe request was not involved matters while some can be identified as the waiver of the rights, but these matters and damage to the country, the collective interests or the public interests of the society, this is the Party of unauthorized disposal. The people's Court of second instance shall review.

At the same time, but also to prevent another tendency. This is in some people's Court of second instanceA case on appealNo matterAppealWhether to undertake a comprehensive review to request. The law provides for the procedure of second instance"Don't tell"In principle, it should be implemented correctly. We insist on the traditional"Mistakes must be corrected whenever discovered"Practice, litigation mode, the past has implemented comprehensive trial principle, therefore tend to conduct a comprehensive review. It is a mistake to review the principles of the provisions of this absolute, regardless ofAppealIf the request relates to have a comprehensive review is also wrong. We should correct the law strictly prohibited, harm the national and social public interests, but also to fully respect the right of the parties to the civil. Spiritual principles which requires us to accurately grasp the law, strictly according to law.