民事訴訟法律審上訴制度之比較分析──以日本法為中心

A Comparative Study on Discretionary Review in Civil Procedure: Focusing on Japanese Legislation

1998年及2003年日本及臺灣之民事訴訟法分別就最高法院上訴制度為重大變革。兩者均限制權利上訴制度，並分別新採上訴受理及許可上訴制度。於新法施行後，日本審判實務雖未裁量受理而選別事件，仍行符合現狀之當事人救濟，但此因職權廢棄制度猶存，尚保留與舊法之連續性。反觀我國新法，與許可上訴要件搭配，已限制上訴理由不拘束原則，未必能如日本法般解釋、運用。審判實務未以貫徹法統一為要事，應是認追求正確裁判、賦予當事人權利救濟，始為第一義。

The Civil Procedure Code of Japan and Taiwan has gone through significant reforms in the year 1998 and 2003. Both nations reduce the probability for the supreme court to accept appeals during the reform, and at the same time introduce“discretionary review”and“final appeal acceptance system”in to the Civil Procedure Code. Up until now, due to the fact that the supreme court in Japan is still reversing judgements on its own initiative, the supreme court has yet to exercise its discretion and categorize cases, making the new system still bear continuity with the old one. As for Taiwan, alongside the requirements of the discretionary review, the principle in which the supreme court is not bound by the specific basis of appeal that the litigant asserted has already been restrained. As a result, the new statutes in Taiwanese code can not necessarily be interpreted and carried out the same way as their counterparts in Japanese code. After all, the top priority of legal practice is never the union of statutes, but rather the pursuit of accuracy of judgement and the protection of people’s right to seek legal recourse.