中國二審程序功能的非正常化運行——從民事程序視角的分析

Abstract

The appellate system is a common phenomenon in the system of legal proceedings of all countries in the modern world. It has many functions such as rectifying the wrong judgment, unifying the application of law, strengthening the legitimacy of the judiciary and others. In the context of China's four-tiers and two instances trial system, the preset purpose of the appellate system by the legislator and the judiciary and the function of the appellate system to be implemented in judicial practice is of great significance in understanding and reforming our country's trial class system and appellate system. This paper attempts to integrate the use of comparative methods, empirical research and other methods under the power organization structure and judicial management mode in the Mainland of China to conduct a comprehensive research study of China’s legislation, judicial interpretation and judicial practice in order to understand the China’s appellate system precisely and discover the inherent problems in the judicial operation of appeal procedure. On this basis, the author has theoretically refined the issue of China's appellate system and its practical operation, and strives to propose theoretical concepts that can reveal the basic characteristics of China's appellate system, so as to help understand the function and structure of the China's appeal procedure more profoundly from the complicated surface phenomena. It is not the purpose and main content of this paper to propose improved scheme and countermeasures, but to have a deeper understanding of China's appellate system and its inherent problems.

The two major legal systems in the Western countries generally implement the third instance as the final instance as the main structure and the first instance being the final instance and others as an auxiliary of the trial class system. The three level of trial reflect the characteristics of functional stratification where the preliminary trial procedure is a full trial and basic trial; the second instance procedure is a relief trial, and the scope of the trial examination shows the different characteristics of the civil law countries and common law countries; the third instance procedure is about legal trial, which focus more on unifying the application of the standards of law and development of law. This paper has conducted the comparative law research and a review of the basic theory of the appellate system.

On this basis, the main focus is on the research and analysis of the system and practice of the appeal procedure in China. In the context of the four-tiers “two instances trial” system in Mainland China, this paper tries to understand the main characteristics of China's appellate system from the perspective of “legal provisions + judicial interpretation + practical operation methods” and the perspective of comparative law and the theoretical standpoint. This paper proposes that under the typical “hierarchical” power organization structure in China, the relation of the China's trial structure belongs to “centrism of authority of second-instance”, and the second-instance procedure is greater than the first-instance procedure in terms of importance and trial power. However, in terms of trial level responsibility, China belongs to the "centrism of responsibility of first-instance" mode, where the burden of realizing the judicial correctness of “resolving all disputes upon close of a case and accepting the verdict” should rely more heavily on the first instance procedure. The specific characteristics are: promotes to resolve contradictions at the grassroots level in terms of social governance, achieves the goal of dispute settlement through the first-instance procedure as far as possible in the reflection of the judicial practice areas; the judicial concept of the highest judicial authority for the second-instance procedure is to maintain according to law as far as possible and be prudent in changing the sentence. In terms of the relationship between the higher and lower courts in China, the confusion of the relationship between the administrative supervision and management and the relationship of trial levels is presented. Although the courts at different trial levels have a supervisory and guiding relationship at the legislative level, nevertheless in reality the de facto leadership relationship is formed. The higher courts assessed the appeal rate and the reform rate of the lower courts, but with regards to the assessment of the trials quality of the second instance procedure is nevertheless still in deficient. This paper also examines the stability and finality of the adjudication made under the two-tier trial system in China where the overall impression appeared was that an uncertain dilemma of “abuse of retrial” and “difficulty of re-trial” in the judicial practice during the 20th century of 1980s and 1990s. However, after entering the 21st century, especially after the amendment of the Civil Procedure Law in 2007, this situation has been greatly changed, the guiding ideology has realized the transformation from “mistakes must be rectified” to “rectify mistakes according to law”, the retrial procedure has been reformed as “retrial litigation”, it is necessary to rectify exactly the judgment errors that must be rectified in the system and practice, and also to maintain the concept and working mechanism of the effective judgment to be more and more perfect.

Under the two seemingly contradictory tendencies of “centrism of authority of second-instance” and “centrism of responsibility of first-instance”, this paper takes the trial practices of an intermediate court and grassroots court of a prefecture-level city (W city) in the Yangtze River Delta region of East China as a sample to conduct an empirical study to investigate the implementation of the error correction function of second-instance in judicial practice. The study found that the rate of reissuance of the first instance case of the grass-roots court in the appeal procedure of the W-city Intermediate Court was very low, yet regardless of the system or practice of the first instance procedure, it has not been effectively strengthened in recent years in China, the professional quality and integrity quality of judges are not optimistic; the summary procedure has been expanded and applied, the pre-trial preparation procedure is rarely applied, and the “hypotaxis and real independence” in the collegiate system has become a common problem; the contradiction between the number of cases and the number of people is getting serious, the time costs of the first instance procedure is becoming less and less, the quality of the first instance judgment is questionable under this series of factors. Through the investigation and analysis of 3 aspects, the following findings were drawn, (1) the rate of application for retrial of the second instance judgment in W-city was high in recent years and has a increasing trend; (2) through the initiated investigation for retrial of the second instance judgement, the number of the second instance judgement in the intermediate court of W-City which was ruled for retrial in ten years from 2009 to 2018 accounted for 1.52% of the total judgment of second instance, and this is significantly higher than Japan and Taiwan. By further analyzing the situation in which the judgement of second instance was rectified, it was found that in the case of retrial for error correction, 70.3% of the original judgment of second instance maintained the first instance, and 27.6% of the original judgment of second instance changed the judgment of first instance. This reflects the weakening of the error correction function of the second instance procedure of the Intermediate Court. The main problem is that the error correction function of the second instance is still indolent in exercising. The author has conducted a case-by-case review of 126 cases in all retrial cases, and found that out of the 126 cases of the original second instance judgement which were retrial, besides the 10 cases where new evidence has emerged, 3 original second instance judgment errors were not obvious, there were obvious errors in the remaining 110 cases, and the revision of retrial procedure is convincing; (3) in recent years, the number of application for retrial cases have increased year by year, but the number of cases ruled for retrial has remained basically constant. Due to the extensive use of “three no (no reconciliation, no inquiry, no people)” methods in the review process of retrial applications in judicial practice, it could be entirely reasonable to doubt that the proportion of real errors in the judgment of the second instance is greater than the current ruling for retrial cases. The examination and analysis of the above three aspects show that the error correction function of the China’s second instance procedure has weakened in practice. The specific reasons are as follows: to maintain the judgment of the first instance as much as possible, cautious about the judicial concept of changing the judgment; to maintain the trial mode of the original judgment, procedure of the second instance is normal without a trial session; to maintain the decision-making mechanism of the original judgment; the unreasonable assessment and evaluation mechanism of judges; as well as the system paradox of the administrative management and assessment of the superior court in the context of the social background of acquaintances. The weakening of the error correction function of the second instance has brought a series of problems, such as the failure of the two-tier trial system and the determination of the judgment's res judicata are impaired; the first instance task is too heavy, the function to ensure the correctness of the judgment is difficult to achieve; the independence of the trial, the impairment of judicial credibility, which undoubtedly have violated the original intention of the structure of the trial system.

The paper further studies the implementation of another important function of the appeal procedure, “Uniform Application of Law” and proposes 2 different modes of unifying the judgment standards in Chinese and the Western courts: “uniform mode of judicial interpretation” and “uniform mode of appeal system.” The characteristics to unify the standard of the judicial judgment of Western courts are the “uniform mode of appeal system", which is mainly through the pyramid-shaped review systems and rely on a series of trial systems such as appeal procedure and precedent principle to unify the judgment standards. However, in China, the concept and system of unifying the judgment standards through the appeal procedure has never been valued and perfected. China's pathway is “uniform mode of judicial interpretation”, and the Supreme Court of China relies mainly on the development of abstract judicial interpretations to unify the standards of legal application; whereas the means for all levels of local courts in unifying the judgment standards is also mainly to formulate “normative documents”; the nature of the case system with Chinese characteristics is also more similar to the judicial interpretation formulated by the Supreme Court. In this context, the preset purpose and function of the China’s appellate system has emphasized more on its error correction function from the beginning and ignored its role of unified judgment standards. In addition, the China’s Court of Appeal (Intermediate Court, High Court, Supreme Court) also lack of effective mechanisms in unifying the judgment standards of different trial organizations. The lack of the third instance procedure results in the excessive number and low level of the Court of Final Appeal (mostly the Intermediate Court), and the lack of power constraints in the second instance is the secondary cause of the weakening of the unified judgment standards in the China’s appellate system. This paper also describes the areas and performances of the inconsistency judgment in the judicial practice. The paper points out that by relying solely on the abstract judicial interpretations, normative documents, and “guiding cases” to unify the standards of the judgment has its limited effect. Failure to value the importance of unification of the judgment standards through the appellate system is an important reason for the widespread existence of inconsistency of judgments in China.

In summary, this paper opines that under the “hierarchical” state power structure, the relationship between the first instance procedure and the second instance procedure in China has formed a “centrism of authority of second-instance” in terms of focus of trial level and power. However, in terms of responsibility, China's judicial operation presents the phenomenon of “centrism of responsibility of first-instance” instead of the “responsibility-sharing doctrine” (or “functional stratification doctrine”) of different trial levels in the Western society. The main characteristics of China is that China has placed its primary responsibility (at least hope) for ensuring the correctness of the judicial system on the first instance procedure, and requires the first instance to resolve the disputes and settle the cases to the maximum extent; the second instance procedure has been given full power to supervise and review the first instance judgment, however, it has not established the concept that it should perform its functions fully and correctly, and also has failed to establish the responsibility mechanism to perform its functions; there is a confusion of the trial relationship, the business guidance relationship, and the administrative leadership relationship between the court of second instance and the court of first instance. The court of second instance requires the court of first instance to minimize the rate of the appeals through administrative means, and the root cause of this phenomenon is the bureaucratic structure power organization and the policy-implemented legal procedures.

The empirical study shows that China's second-instance procedure has undergone alienation in fulfilling its functions conferred by statutes and legal principles, and a series of problems such as weakening of error correction function and weakening of unified legal function have emerged. This paper suggests that more attention should be paid to the realization of the function of the appeal procedure, and it should play its role as the second line of defense of judicial justice and fully perform the function of the second instance to ensure the quality of the final judgment; at the same time to change our reliance on judicial interpretation documents and publication of cases, and make the most of the function of the appellate system to unify the judgment standards. In improving the quality and unification of the judiciary, strengthening the first instance is the foundation, and strengthening the second instance is also the key.

Date of Award	5 May 2020
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Feng LIN (Supervisor)