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附带上诉,是指当事人一方上诉后.被上诉人依附于该上诉程序而提起的特殊上诉。其最大特殊之处在于,被上诉人上诉期间已满或舍弃上诉或撤回上诉后,也可提起。这是一种极其重要的制度设计,大陆法系国家都规定了附带上诉制度。国民党法统的“民事诉讼法”在20世纪20-30年代就规定了附带上诉制度。遗憾的是,我国现行的民事诉讼法却没有此项重要制度设计。本文拟从附带上诉的作用、性质、成立要件及其与主上诉的关系来介绍该项制度,以期引起学界及实务界的注意。
The appealed appeal refers to the special appeal filed by one of the parties after the appellant appealed to the appeal procedure. The most special feature is that the appellee may appeal if the appellant’s appeal is full or is abandoned or the appeal is withdrawn. This is an extremely important system design. The civil law countries all stipulated the incidental appeals system. The Civil Procedure Law of the Kuomintang regulated the incidental appeals system in the 1920s and 1930s. Unfortunately, the current civil procedure law in our country does not have this important system design. This article intends to introduce the system from the role and nature of incidental appeals, the elements of its formation and its relationship with the principal appeals, with a view to arousing the attention of academics and practitioners.