对设立附带上诉的冷思考

附带上诉是上诉审程序中平衡双方当事人利益的一个精巧的程序设置.它与处分原则和不利益变更禁止原则有密切的联系.我国现行民事诉讼法中处分原则并没有得到充分贯彻,也没有规定不利益变更禁止原则,二审中当事人的请求对法官审理范围的拘束十分有限,再审程序的规定也有诸多弊端,这些使得附带上诉没有必要.

the clod reflection on the Establishment of the Collateral Appellate System

The Collateral Appellate System is a well designed system to balance the interests of both parties in appeal.And it has a close reltaionship with both the Disposition Principle and the Principle f Interests Change Forbidden.Because,(1) the Disposition Principle is not sufficently implemented in the current civil procedure system,(2) the Collateral Appellate System is not yet statued in the civil procedure law,(3) the judge is not legally constrained by the appellant's claims,and(4) the retry procedure itself has lots of defects,it's safe to say that the adoption of such a system in China is not necessary now.