大陆法系附带上诉制度研究——兼论我国附带上诉合法要件的构建

Collateral Appellate Regime in Civil Law System:Concurrently on the Requirements of Collateral Appeal in China

附带上诉具有依附性、当事人诉讼地位的双重性、目的上的对抗性、不服范围的惟一性、审理上的合并性共5个特征。关于附带上诉的本质,有非上诉说与上诉说两种学说。附带上诉制度具有平衡当事人双方诉讼程序利益,实现当事人双方攻防机会平等;打消好讼当事人的侥幸心理,便于息讼等多项价值功能。附带上诉的合法要件是:须有合法的主上诉存在,须由被上诉人对上诉人提起,须对上诉人所上诉的第一审判决声明不服,须于法定期间内提起、须不可再为附带上诉、须遵守法定程式。

Collateral appeal has five features： dependency, dual litigatory status of the parties, purposed confrontation, uniqueness without scope limitation, and joinder of hearings. In terms of the nature of collateral appeal, there exist non-appeal and appeal doctrines. Collateral appeal has functions such as balancing the interests of the parties, ensuring them to have equal opportunities to attack and defend, and preventing the litigious from trying luck so as to conduce to appeasing litigation. The requirements of collateral appeal are as follows： existence of ＂main appeal,＂ being taken by the appellee against the appellant, declaring like the appellant against the judgment of the trial court, within the statutory period, sub-collateral appeal being prohibited, and compliance with statutory procedure.