民事诉讼发回重审制度之检讨

Examining the Remandment of Civil Appeal Cases

十多年来我国法院民事上诉案件发回重审率的变化表明,发回重审的适用,除取决于法律制度本身外,还与司法政策、一审法官的素质等因素紧密相关。实践中我国二审法院存在着诸多发回重审的"潜理由",如提高年度结案率、规避审判责任追究、维持上下级法院之间良好关系等。对二审法院滥用发回重审进行制约的措施应包括,在立法上将发回重审的事由限定于法律问题,在审级功能正当化的基础上使上级法院更加尊重一审判决,并赋予发回重审裁定时二审法院的自缚效力。无害性原则、辩论原则、处分原则以及终局性原则,应当成为构建以保护当事人程序利益为中心的发回重审制度的基础。

The change of the remandment rate of civil appeal cases in China in recent ten years indicates that the application of remandment relates to not only the institutions of legal systems but also the other factors, such as the judicial policies and the quality of the judges. In fact, the appellate court in China often remands cases due to non - legal factors, such as raising the closure rate, avoiding liability for misjudgment, maintaining the good relationships between the appellate courts and the trial courts. In order to restrict the abuse of remandment by the appellate court, several measures should be taken. Firstly, the law should provide that the cause of remandment be confined to the legal issue. Secondly, the appellate court should respect the trial judgment on the basis of due appeal procedure. Thirdly, the remandment decision by the appellate court should bind the court itself. The principles of innocuity, debate, disposition and finality should be taken as the base of remandment, focusing on the protection of the parties＇ procedural interests.