衝突與融合：民事二審審理方式實踐運行與規則預設的檢視和改造

Conflicts and Integration: the Review and Reform of the Practices and Rule-making for the Civil Trial on Second Instance

我國《民事訴訟法》立法上堅持二審以“開庭審理為原則，以不開庭審理為例外”為基本取向，但多年來二審審理的實踐選擇卻並未遵循立法預設的路徑，甚至呈現一定程度的背離與衝突。隨著司法績效考核體系的建立和新《民事訴訟法》的出臺，二審開庭得到強化，從表面上看實現了實踐向理論的回歸，但數據的背後卻暗含著對開庭方式的異化和扭曲。面對複雜的司法現狀，我們不能簡單地做出價值判斷，而應對實踐與規則各自做出檢視和反思，通過理念對接和程序改造消弭衝突的進路，實現多元司法價值的平衡與共存。

The legislation about the method of trial on second instance in Civil Procedural Law of China insists on the basic orientation which is 'opening hearing trial as principle and closed hearing trial as exception', but years of the practical choice about the second instance trial did not follow the route of legislative presupposition, and even appear a certain degree of deviation and conflict. With the establishment of the legal performance evaluation system and the issuance of modified Civil Procedural Law, the application of opening hearing on second instance is being strengthened. Seeing from the appearance, it achieved the regression from practice to the theory, but the data implies the alienation and distortion of the opening hearing trial. Facing complex judicial status, we should examine and reflect on our practice and rules, through concept fusing and procedure reforming, balance and coexistence of pluralistic judicial value, instead of making a simple value judgment.