In civil litigation, after the court issues the first-instance judgment, some parties will not accept the first-instance judgment. The civil law gives the parties a second chance to get relief, and the parties in the first instance can choose to appeal. So,
Scope of second instance trial of civil litigation
What is this? In order to answer your questions, Bian Xiao specially collected the following information for you, hoping to help you.
I. Civil Procedure Law
Scope of second instance
(1) legal provisions
According to the provisions of the new People's Procedure Law, the trial mode of the second instance case is: the facts related to the appeal request and the application of the law. This scope has two remarkable characteristics: first, the trial content includes both factual trial and legal trial; Second, the scope of trial is limited by the scope of appeal. As for the reasons for making such changes, there are mainly the following reasons:
1, the second-instance procedure is not a simple repetition of the first-instance procedure, but mainly solves the controversial problems that have been tried in the first-instance procedure. The second instance generally does not deal with the uncontroversial issues that have been solved by the first instance procedure (that is, the part that the parties have not appealed).
2. Repeated handling of issues that the parties have not appealed is not only unnecessary, but also a waste of manpower and material resources, wasting time, and it is not conducive to solving disputes between the parties and is easy to cause new disputes.
3. The procedure of the second trial is because of the appeal, and the trial scope of the second trial should also be determined by the scope of the appeal request, which is the same as that of the first trial determined by the prosecution request. The people's court shall not take the initiative to hear the questions that the appellant has not raised in the appeal request. This can be said to be the performance of the rule of non-prosecution and disregard of the parties in civil litigation in the second instance procedure, and it also conforms to the sentencing principle in civil litigation.
4. Even if there are mistakes in the part of the first-instance judgment that the parties did not appeal, it is only a minority, and generally only involves the interests of individuals, units and organizations. If the other party has no objection, the court does not have to force it to claim rights. Even if the problems involved have a significant impact on the interests of the state and society, they can be corrected through trial supervision procedures.
5. Limiting the trial scope of second-instance cases to the appeal scope is conducive to reducing the workload of the court of second instance and ensuring that it can conclude cases quickly and timely within the statutory time limit.
(B) the history of the scope of civil litigation
1. Foreign civil procedure laws have different provisions on the scope of appeal, but they can be roughly divided into two categories: one is to stipulate that the scope of appeal is not limited by the scope of appeal request and the scope of original judgment. That is, the court of appeal should not only hear the judgment of the court of first instance and decide whether there is any mistake in applying the law, but also comprehensively hear the judgment and ruling of the court of first instance.
2. Whether the confirmed facts are based on truth.
The provisions of the Civil Procedure Law (Trial) on the scope of appeal trial also refer to this provision of the Soviet Civil Procedure Law. The other is to limit the scope of the appeal trial to the judgment of the original trial and decide whether there is any mistake in applying the law (including substantive law and procedural law). Many countries have adopted this method.
3, such as the United States Court of Appeal to hear an appeal case, only the judgment of the lower court is wrong in the application of law, and the fact of the case is that the district court is the final judgment, and the Court of Appeal generally does not hear it. The defect of this practice of only conducting legal trials in the second instance without conducting factual trials is that the mistakes in ascertaining facts in the original judgment cannot be corrected in the appeal trial. The change from the Civil Procedure Law (Trial) to the new Civil Procedure Law in China is a turning point.
Second, the determination of the scope of civil second instance
1, the appeal request should be broadly understood, that is, in addition to the request made by the appellant, it also includes the request made by the appellee and the third person who tried the case in the first instance.
2. The appellant's appeal request shall generally not exceed the scope of the first-instance litigation request. That is, no new claims may be made in the second instance. The so-called filing a new lawsuit mainly shows that the plaintiff in the original trial increased the lawsuit, the defendant filed a counterclaim and the third party filed a lawsuit. This is the requirement of the system of two trials and final adjudication. Otherwise, it will be in a dilemma. Because the new claim is final in the second instance, it will make the parties lose their right of appeal.
If the parties are allowed to appeal again, the case will become the final instance of the third instance. Unless the new litigation request put forward by the parties can reach a mediation agreement in the second instance procedure, that is, the second instance can be settled by mediation, otherwise the new litigation request can be tried in the second instance. In addition, the parties shall be informed to file a separate lawsuit with the court of first instance. In addition, in the procedure of second instance, we should pay attention to distinguish between the new evidence facts and the parties to the new litigation request. The parties added new evidence in the second trial, but did not put forward new substantive claims. They only consolidated and safeguarded the original claims, which should be approved by the people's court.
3. The appeal request of the parties can go beyond the scope of the first-instance judgment. The litigation request put forward by the parties in the procedure of first instance should be the basis for the people's court to make a judgment, that is, the court of first instance should make a clear and specific judgment on the request of the parties. However, in the trial practice, the court of first instance did not make a judgment on all the requests, leaving the requests of the parties in an undecided state.
It should be legal for the parties to file this part of the appeal with the court of second instance without a judgment. When handling such claims, the court of second instance shall, if mediation fails, send the case back to the court of first instance for retrial according to the requirements of the system of final appeal of second instance.
Three. The court of second instance hears appeals.
1. A collegial panel shall be formed to hear the relevant facts and applicable laws of the appeal. After reading papers, investigating and questioning the parties and finding out the facts, the collegial panel may also make a judgment or ruling if it deems it unnecessary to hold a trial.
2, after trial, according to the following circumstances:
(1) If the original judgment found that the facts were clear and the applicable law was correct, the judgment dismissed the appeal and upheld the original judgment;
(2) If the original judgment was wrongly applied by law, the judgment shall be changed according to law;
(3) The original judgment found that the facts were wrong, or the original judgment found that the facts were unclear and the evidence was insufficient, and the original judgment was revoked and sent back to the people's court that originally tried the case for retrial, or the judgment was revised after the facts were ascertained;
(4) If the original judgment violates legal procedures and may affect the correct judgment of the case, the original judgment shall be revoked and sent back to the people's court that originally tried the case for retrial. (The parties may appeal against the judgment or ruling of the retrial case)
3. Mediation can be conducted in the trial of appeal cases. If an agreement is reached through mediation, a mediation agreement shall be made, which shall be signed by the judge and the clerk and stamped with the seal of the people's court. After the conciliation statement is served, the judgment of the people's court that originally tried the case shall be deemed to be revoked.
What is the scope of accepting cases in the second instance of civil litigation? Through the above answers, we can easily get the answer. Different from criminal proceedings, the principle of comprehensive trial is not implemented in civil second instance. In order to save judicial resources, the trial scope of civil second instance is only the disputed part of the parties. Therefore, when you submit the appeal of the second instance, you need to explain the controversial part so that the judge of the second instance can understand your appeal in time.