论我国民事诉讼第三审制度之构建

我国两审终审的民事审级制度,由于欠缺对审级制度功能理论和相关民事诉讼基本原理的考虑,在司法实践中产生了种种弊端,已不适应形势发展的需要。因此,有必要借鉴国外先进立法经验,建构第三审程序。在第三审程序中,应当只审理法律问题,允许当事人以协议方式越级向第三审法院上诉,并对具有示范意义的案件实行特别上诉、最高法院提审和上诉许可制度。出于审理范围恒定原则,在第三审程序中,不得提起反诉、附带上诉。

On construction of third instance of the civil litigation

Due to lacking the consideration of trial grade system and the basic principle of the relevant proceeding, the civil trial grade system with two-grade final judgment in our country has caused various drawbacks in judicial practice and could not meet the need of the situation. Therefore, it is necessary to take foreign legislation for reference to construct third instance. Third instance should be procedure only for trial of law and parties are allowed to appeal to the court of third instance with agreement. The case which has model signification may be filed a special appeal and the Supreme Court shall have the power to bring the case up for trial by itself or to decide whether to give leave to appeal to itself or not. According to the principle of invariableness over the scope of trial, counterclaim and supplementary appeal shall be forbidden in the procedure of third instance.