上诉制度是现代世界各国诉讼制度中普遍存在的现象，具有纠正错误裁判、统一法律适用、强化司法的正当性等多种功能。在中国四级两审终审制的语境下，立法者和司法者对于上诉制度的预设目的，以及上诉制度功能在司法实践中实现情况为何，对于认识和改革我国的审级制度和上诉制度具有重要意义。本文尝试在中国内地权力组织结构和司法管理模式下，综合运用比较法、实证研究等方法，通过对我国立法、司法解释、司法实践状态下上诉程序进行综合的考察研究，以期能准确认识中国上诉制度功能，并发现上诉程序司法运行中的固有问题。在此基础上，笔者对中国上诉制度及其实践运行问题进行理论上的提练，努力提出能够揭示中国上诉制度基本特征的理论概念，以有助于从纷繁复杂的表面现象中更深刻地把握中国上诉程序的功能和结构。提出改良的方案和对策并不是本文的目的和主要内容，本文只是想更深刻地认识中国的上诉制度及其固有问题。

西方两大法系主要国家一般均实行三审终审为主要架构、一审终审等为辅的审级制度。三个审级反映出职能分层的特点，初审程序为全面审和基础审；二审程序为救济审，审查范围则大陆法系国家和普通法系国家呈现出不同的特点；三审程序则均为法律审，更为关注统一法律适用标准和发展法律。本文对上诉制度进行了比较法研究和基本理论的梳理。

在此基础上，把主要的目光聚焦于对中国上诉程序的制度和实践层面的研究分析。在中国内地四级“两审终审”的审级制度语境下，力图从“法律条文＋司法解释＋实务操作方式”这个整体的视角，从比较法的视角和理论的高度来认识我国上诉制度的主要特征。本文提出，在中国典型的“科层式”权力组织结构下，中国的审级关系属于“二审职权中心主义”，在重要性和审级权力上而言二审程序要大于一审程序。但是在审级的责任上，我国属于“一审责任中心主义”模式，把实现司法正确性、“案结事了、服判息讼”的责任更多地压向一审程序。具体的特征有：在社会治理理念上提倡将矛盾化解在基层，在司法领域的反映是要求尽可能通过一审程序即实现完满解决纠纷的目标；最高司法机关对于二审程序的司法理念是尽可能依法维持、对改判应当慎重。中国上下级法院之间关系上，呈现了行政化监督管理关系和审级关系的混同，不同审级法院虽然在立法层面上是监督指导关系，但现实中形成了事实上的领导关系。上级法院考核下级法院的上诉率和发改率，但是对于二审程序审判质量的考核却付之阙如。本文还对我国两审终审制下裁判的稳定性和终局性进行了考察，得出的总体印象是，在20世纪80、90年代，司法实践中出现了“再审滥”和“再审难”漂移不定的困境。但是进入21世纪、尤其是2007年的民诉法修改以后这一局面得到了很大的改变，指导思想上实现了从“有错必纠”向“依法纠错”的转变，对再审程序进行了“再审之诉”的改造，在制度和实践中既要准确纠正必须纠正的判决错误、又要维护生效裁判既判力的观念和工作机制越来越完善。

在“二审职权中心主义”和“一审责任中心主义”矛盾的冲突下，论文以中国东部长三角地区的一个地级市（W市）的中级法院和基层法院的审判实践为样本进行实证研究，考察司法实践中二审程序纠错功能的实现情况。研究发现，W市中级法院上诉程序中对基层法院一审案件的改发率很低，但是近年来的中国，不管是从制度上还是从实践上第一审程序并没有得到有效的加强，法官的专业素质和廉洁素质并不乐观；简易程序被扩大适用、审前准备程序很少适用、合议制“形合实独”等成为普遍问题；案多人少矛盾日益严重，第一审程序占用的时间成本越来越少，在这一系列因素下第一审裁判的质量令人怀疑。通过3个方面展开调查分析得出如下发现，（1）W市二审裁判被申请再审率近年来处于高位徘徊并有上升趋势；（2）通过对二审裁判被启动再审的情况调查，W市中级法院的二审裁判在2009年至2018年十年中被裁定再审的数量，占总的二审裁判的1.52%，这与日本、中国台湾地区相比明显偏高。通过进一步对二审裁判被纠错的情况分析，发现在被再审纠错的案件中，原二审裁判维持一审的占70.3%，原二审裁判改判一审的占27.6%。这反映出中级法院二审程序纠错功能的弱化，主要问题在于二审纠错功能的怠于行使。笔者对所有再审案件中作出改判处理的126个案件进行了逐案复查，发现被再审改判的126件原二审裁判中除了10件系出现了新证据、3件原二审判决错误不明显外，其余110余件判决均存在明显的错误，再审程序的改判是令人信服的；（3）近年来申请再审的案件数在逐年上升，但是裁定再审的案件数却基本保持平稳。由于在司法实践中对再审申请的审查大量采用“三不（不调卷、不询问、不见人）”方式，完全可以合理怀疑，二审裁判中真实存在错误的比例比目前裁定再审的更大。上述三个方面的调查分析显示，我国二审程序的纠错功能在实践运行中发生弱化。具体原因主要有，尽可能维持一审判决、慎重改判的司法观念；有利于维持原判的审理方式，二审程序以不开庭审理为常态；有利于维持原判的决策机制；对于法官的不合理的考核评价机制；熟人社会背景下上级法院行政化管理考核的制度悖论。二审纠错功能弱化带来一系列问题，两审终审制的落空、确定裁判的既判力受到伤害；一审任务太重、保证裁判正确的功能难以实现；审判独立、司法公信受损，而这无疑都违背了审级制度设计的初衷。

本文进一步对上诉程序的另一重要功能“统一法律适用”的实现情况进行了研究，提出了中西方法院统一裁判标准的2个不同模式：“司法解释统一模式”和“上诉制度统一模式”。西方国家法院统一裁判标准的特点是“上诉制度统一模式”，主要是通过金字塔形的审级制度，依靠上诉程序和遵循先例原则等一系列制度统一裁判标准。但是在中国，通过上诉程序来统一裁判标准的观念和制度，却从来没有被重视和健全。中国的路径是“司法解释统一模式”，中国最高法院主要依赖制定抽象的司法解释来统一法律适用标准；地方各级法院统一裁判标准的路径也主要是制定“规范性文件”；中国特色的案例制度其性质也更类似于最高法院制定的司法解释。在此背景下，中国上诉制度的预设目的和功能，从一开始就更加强调其纠错功能而忽视其统一裁判标准的作用。另外，中国上诉法院（中级法院、高级法院、最高法院）内部也缺乏统一不同审判组织裁判标准的有效机制。缺乏第三审程序造成的终审法院（大部分为中级法院）数量过多、级别过低，第二审缺乏权力制约是中国上诉制度统一裁判标准弱化的次要原因。本文还对司法实践中裁判不统一的领域和表现进行了描述。文章指出，仅仅依靠抽象的司法解释、规范性文件和“指导性案例”以统一裁判标准，其作用是有限的。不重视通过上诉制度统一裁判标准，是中国裁判不统一现象广泛存在的重要原因。

综上本文认为，在“科层式”国家权力结构下，我国的第一审程序和第二审程序的关系，从审级重心上和权力上形成了“二审职权中心主义”，但是在责任上而言，中国的司法运行呈现了“一审责任中心主义”现象，而不是西方社会的不同审级“责任分担主义”（或“职能分层主义”）。中国主要特点为，把保证司法正确性的主要责任（至少是希望）寄托在一审程序上，要求一审最大限度地解决纠纷、案结事了；二审程序被赋予了监督审查一审裁判的全方位权力，但却没有确立应当充分正确履行职能的理念，没有建立履行其职能须要承担的责任机制。第二审法院与第一审法院之间出现了审级关系、业务指导关系、行政领导关系的混同，第二审法院通过行政化的手段来要求一审法院最大可能地减少上诉的发生，这一现象产生的根本原因是科层型的权力组织结构和政策实施型法律程序。实证研究显示，中国的二审程序在履行制定法和法理赋予的职能时发生了异化，出现了纠错功能弱化、统一法律功能淡化等一系列问题。本文建议要更加重视上诉程序功能的实现，应当发挥其司法公正的第二道防线作用，充分履行二审职能确保终审裁判的质量；同时要改变对司法解释性文件和发布案例的依赖，更多地发挥上诉制度统一裁判标准的职能。在提高司法的质量和统一上，强化一审是基础，强化二审也是关键。

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.