我国飞跃上诉的制度构建:兼论有限三审制的改革路径

The Construction of China’s Leapfrog Appeal System: On the Reform Path of Limited Third-Instance Trial System

我国现阶段尚不具备实行全面三审终审制的条件,但有必要通过有限三审制的试点改革,纠正对再审和提高受案标的额等改革措施的过度依赖,为事实审与法律审的分离以及许可上诉标准的构建等问题的解决积累经验,为金字塔式的司法统一机制以及三审制提供制度铺垫。政策形成型飞跃上诉有助于最高人民法院通过亲历审判形成政策,克服现行法律统一与发展机制的不足,亦能避免对我国两审终审制的根本冲击,是有限三审制最合适的制度选择。在具体的制度设计上,需根据我国的司法现状与改革目标量体裁衣。应当将试点范围限定在最高人民法院各巡回区,以当事人合意作为启动要件,以一审法院的前期审核为基础,由最高人民法院根据系争法律问题的典型性和重要性裁量受理。

At this stage, China does not yet have the conditions to constitute a nationwide judicial hierarchy system of three tiers of court, but it is necessary to correct the over-reliance on measures such as retrials and increasing the amount of the subject matter of the case through a limited third-instance trial system, and to provide experience on issues such as the demarcation of factual issues from legal issues and the standards of how the Supreme People’s Court leave to appeal, in order to provide an exploration of the institutional experience for China’s pyramid-type mechanism of uniform application of law and the system of three tiers of court. The policy-forming type of leapfrog appeal(alternative Sprungrevision) can help the Supreme People’s Court form policies through trial, overcome the shortcomings of the current legal unification and development mechanism, avoid the fundamental impact on China’s two ties of the court system, and serve as a sound procedural system for the limited third-instance trial system. However, the institutional design still needs to be tailored to China’s current judicial situation and reform goals. In this regard, the experimental lepfrog appeal should only be applied in each circuit district of the Supreme People’s Court, based on the consent of both parties and preliminary examination by the court of the first instance, and the Supreme People’s Court should decide whether to accept the case at its discretion based on the typicality and importance of the legal issues in dispute.