Viewpoint | After the retrial application is rejected, the retrial applicant's relief approach is analyzed.
Published:
2024-04-02
After the retrial application is rejected, how to remedy the rights of the retrial applicant? The author combs through this article with the law.
the raising of the problem
If the parties believe that there is an error in a legally effective judgment, ruling or mediation statement, they may apply to the people's court for a retrial in accordance with the provisions of the the People's Republic of China Civil Procedure Law and its relevant judicial interpretations. If, after examination, the people's court finds that the application for retrial does not comply with the provisions of Article 211 of the the People's Republic of China Civil procedure Law, it shall rule to reject the application for retrial. But after the retrial application is rejected, how to remedy the rights of the retrial applicant? The author combs through this article with the law.
For the decision of the 1. rejecting the application for retrial, the parties shall not apply for protest against the retrial decision itself, except for the decision of inadmissibility and dismissal of the prosecution.
(I), because the ruling rejecting the party's application for retrial cannot itself be the object of protest, the people's procuratorate cannot lodge a protest against the ruling rejecting the party's application for retrial.
1. Notice of the Supreme People's Court and the Supreme People's Procuratorate on Several Opinions on Legal Supervision of Civil Trial Activities and Administrative Litigation (for Trial Implementation). Article 8 stipulates that after the people's court has ruled to reject the retrial application, the party concerned appeals to the people's procuratorate. The People's Procuratorate shall not lodge a protest against the ruling rejecting the retrial application.
2. A civil ruling is an authoritative decision made by the people's court on procedural issues in civil litigation and enforcement procedures, as well as individual substantive issues. The decision to deal with procedural matters does not involve the substantive rights of the parties, has no res judicata, and generally does not apply to the trial supervision procedure for relief. Since the result of the decision of inadmissibility and dismissal of the prosecution involves the basic right of action of the parties, special protection is necessary. Therefore, Article 414 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's the People's Republic of China of China (hereinafter referred to as the Interpretation of Civil Litigation) limits the ruling that the People's Procuratorate can protest to a ruling that rejects the prosecution and does not accept it. It can be seen that, in principle, the ruling should not apply to the trial supervision procedure.
3. The main function of the ruling rejecting the party's application for retrial is to terminate the review procedure, which does not produce res judicata and execution of the party's substantive civil rights, and there is no need for special protection. Therefore, the retrial procedure cannot be applied, and the People's Procuratorate has no room for its protest.
If the (II) People's Procuratorate finds that the original effective judgment, ruling, or mediation meets the conditions for a protest, it shall file a protest, and the object of the protest is the original effective judgment, ruling, or mediation statement.
After the procuratorate protests against the original effective judgment, ruling or mediation statement, the people's court may, after examination, decide to uphold the original judgment if the subject matter of the protest is substantially the same as that of the rejected party's application for retrial. If the cause of the protest is materially different from the application for retrial, the case shall be judged on the basis of the objective facts of the case.
After the 2.'s application for retrial is rejected, if the legally effective civil judgment, ruling or mediation statement does exist that should be retried, an application may be made to protest to initiate the supervision procedure.
The (I) People's Procuratorate is the legal supervision organ of our country, and the supervision of civil cases is mainly reflected in the supervision after the fact.
1. For civil judgments, rulings, and mediation statements that have become legally effective, the procuratorial organs shall decide whether to protest after reviewing whether they meet the conditions for protest.
2. If the Supreme People's Procuratorate finds that there is a cause for protest against the judgments, rulings and mediation statements of the people's courts at all levels that have become legally effective, and the people's procuratorate at a higher level shall raise a protest against the judgments, rulings and mediation statements of the people's courts at a lower level that have become legally effective. Local people's procuratorates at various levels may not directly protest against a legally effective judgment or ruling of a people's court at the same level, but may only apply to a people's procuratorate at a higher level for protest.
(II) legal basis and scope of protest
1. Article 416 of the Interpretation of Civil Litigation: "After the party's retrial application is rejected by the higher-level people's court, the people's procuratorate lodged a protest against the original judgment, ruling, and mediation statement, and the protest is consistent with the civil procedure law. If one of the circumstances specified in items 1 to 5 of Article 207 (now Article 211), the people's court that accepts the protest may refer it to the next-level people's court for retrial."
2. Specific scope and exclusions
① The people's court rejects the application for retrial;
② The people's court fails to make a ruling on the application for retrial within the time limit;
③ There are obvious errors in the retrial judgment or ruling.
Based on one of the above circumstances, the party concerned may apply to the people's procuratorate for procuratorial advice or protest. However, the People's Procuratorate shall not accept the case under any of the following circumstances:
① The party has not applied to the people's court for retrial;
② the parties to apply for retrial beyond the time limit prescribed by law, but not attributable to their own reasons;
③ The people's court is examining the civil retrial application within the statutory time limit;
④ The people's court has ordered the retrial and the trial has not been concluded;
⑤ Dissolution of marriage by judgment or mediation, except for those who are not satisfied with the division of property;
⑥ The People's Procuratorate has made a decision after examination;
⑦ Civil judgments, rulings, and mediation documents are made by the people's court after retrial based on the people's procuratorate's protest or retrial procuratorial suggestion;
⑧ The application for supervision exceeds the time limit stipulated in Article 20 of these rules;
Other inadmissible circumstances.
3. after the application for retrial is rejected by the court, the procuratorial organ can also supervise by making procuratorial suggestions.
(I) protest and procuratorial suggestion are different ways for the procuratorate to supervise the effective judgment, ruling and mediation statement of the people's court.
The Legal Basis of (II) Procuratorial Suggestions
The amendment of the the People's Republic of China Civil Procedure Law in 2012 formally brought the procuratorial suggestion into the scope of procuratorial supervision of civil litigation, and the procuratorial suggestion has also become a way to start the retrial procedure. The second paragraph of Article 219 of the the People's Republic of China Civil Procedure Law stipulates: "Local people's procuratorates at all levels have found that there is a legally effective judgment or ruling of the people's court at the same level. If one of the circumstances specified in Article 211 of this law, or if it is found that the mediation agreement harms the national interest or the public interest, it may submit procuratorial recommendations to the people's court at the same level and report to the people's procuratorate at a higher level for the record; it may also request the people's procuratorate at a higher level to lodge a protest with the people's court at the same level."
(III) civil retrial procuratorial suggestion is an important way to supervise the civil trial and an important means of supervision at the same level. After examining the case, the procuratorial organ at the same level may decide to issue a retrial procuratorial proposal to the court at the same level, or it may decide to submit the case to the procuratorial organ at the next higher level for examination and protest.
(IV), the court may not accept the second retrial procuratorial proposal of the same procuratorate. After the court has made a retrial decision on the protest case, if the procuratorate at the same level makes a retrial proposal again, the court shall respect the retrial conclusion of the court and directly reply to the procuratorate with the conclusion.
Article 3 of the "People's Procuratorate Civil Procedure Supervision Rules" stipulates that "the People's Procuratorate shall exercise legal supervision over civil litigation activities through protests, procuratorial suggestions, etc." Article 19 stipulates that "under any of the following circumstances, the party concerned may apply to the people's procuratorate for supervision: the party concerned may apply to the people's procuratorate for supervision: (1) the legally effective civil judgment, ruling or mediation statement conforms to the provisions of paragraph 1 of Article 209 of the the People's Republic of China Civil procedure Law; the (II) considers that there is an illegal act by the judges in the civil trial procedure; the (III) considers that there is an illegal situation in the civil enforcement activity".
(V) procuratorial practice
1. On January 30, 2024, the Supreme People's Procuratorate issued the second batch of typical cases of procuratorial organs implementing the Civil Code. From the perspective of the content of the cases, this batch of typical cases involves the general provisions of the Civil Code, property rights, contracts and other supervision practices with relatively high application frequency. From the perspective of specific legal issues, it involves the evaluation of discretion, the application of the principle of public order and good customs, and the illegal lending of credit cards.
2. The procuratorial organs start the supervision of civil litigation in accordance with the law, and the requirements for the initiative, accuracy and effectiveness of the supervision of protest and procuratorial suggestions are getting higher and higher. The supervision of outstanding issues such as damage to social and public interests, procedural violations, and unfair judgments shall protect the legitimate rights and interests of citizens, legal persons and other organizations in accordance with the law. We will improve the mechanism for procuratorial organs to initiate civil litigation supervision in accordance with the law, improve the mechanism for accepting and reviewing effective civil adjudication appeals, and promptly put forward retrial procuratorial suggestions for civil mediation acts that violate public order and good customs and damage national and social public interests to supervise and correct them.
4. extended thinking
After the retrial application is rejected, if the retrial applicant finds new evidence, he cannot apply for retrial again, but the procuratorial organ can initiate a supervision procedure, the court can also supervise the case ex officio, and the respondent can also apply for retrial within the legal time limit.
1. Legal basis
Article 209 of the the People's Republic of China Civil procedure Law stipulates: "if the presidents of the people's courts at all levels find that there are definite errors in their judgments, rulings or mediation statements that have taken legal effect and believe that a retrial is necessary, they shall submit them to the judicial committee for discussion and decision. If the Supreme People's Court finds that there is a definite error in a legally effective judgment, ruling or mediation statement of a local people's court at all levels, or a people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of a people's court at a lower level, it shall have the right to bring it up for trial or instruct a people's court at a lower level to retry". Article 381 of the interpretation of civil litigation stipulates: "if a party applies for a retrial under any of the following circumstances, the people's court shall not accept it: (1) if the application for retrial is rejected and the application is filed again;......".
2, the court ex officio supervision, in fact, is "the president found"
The president found that it was a way for the court to initiate the trial supervision procedure ex officio, and the law did not specify the contents of the review and trial procedure for initiating the trial supervision procedure ex officio, and the legal provisions of the parties applying for the initiation of the trial supervision procedure should be applied.
(Statement: This article is a personal point of view, only for the exchange of learning.)
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