Viewpoint | The criteria for determining that new evidence is "sufficient to overturn" the original judgment or ruling at the stage of retrial review-the criterion of robustness
Published:
2023-11-14
In the retrial procedure, what standard should be reached to determine that the new evidence is "sufficient to overturn" the original judgment or ruling? The author thinks that it is feasible to adopt the probability standard, that is, the evidence may overturn the original judgment.
the raising of the problem
According to Item 1 of Article 207 of the the People's Republic of China Civil Procedure Law, "if there is new evidence sufficient to overturn the original judgment or ruling", combined with the provisions of Item 1 of Article 385 of the Interpretation of the the People's Republic of China Civil Procedure Law of the Supreme People's Court, "if the new evidence provided by the retrial applicant can prove that the original judgment or ruling determines the basic facts or the judgment result is wrong, it shall be deemed to be in the circumstances specified in paragraph 1 of Article 207 of the Civil Procedure Law". What criteria should be met in the retrial procedure to determine that the new evidence is "sufficient to overturn" the original judgment or ruling?
In order to solve this problem, there are two views in practice: one is to adopt the necessity standard, that is, the original judgment must be changed after the retrial; the other is to adopt the probability standard, that is, the evidence may overturn the original judgment. The author believes that the second view is feasible.
Case Import
Zhang San applied to a court for a retrial six months after the date of service of the judgment of the second instance, saying that he had new evidence sufficient to overturn the original judgment. He also provided the testimony of witnesses Li Si and Wang Wu, who believed that the testimony could prove that Zhang San actually participated in the construction and that the construction site involved was undertaken by a company. Because the two witnesses did not want to cooperate to testify during the original trial, which is evidence that Zhang San could not provide, now the two witnesses are willing to cooperate to testify, and their testimony belongs to new evidence according to law. At the same time, Zhang Santi also provided two effective civil judgments to prove that a company and a third party are affiliated relations, and a company actually illegally contracted out contracts in violation of the prohibitive provisions of the the People's Republic of China Construction Law, from which affiliated fees are collected, according to the principle of consistency of rights and obligations, a company shall be jointly and severally liable for the machinery costs and purchase prices it claims. The two judgments were collected by Zhang Sangang recently. Zhang San believed that the two judgments and the testimony of the two witnesses were new evidence and were sufficient to overturn the facts found by the 1. court of second instance, so he applied for a retrial and asked for arraignment and commendation.
A company submitted an opinion arguing that 1. to the fact that the second instance judgment found that the facts were clear and the applicable law was correct, Zhang San's retrial application did not comply with the provisions of Article 207, paragraph 1, of the the People's Republic of China Civil Procedure Law, and the retrial request lacked facts and laws. According to the basis, and its application for retrial has exceeded the statute of limitations, its application for retrial should be rejected in accordance with the law.
After accepting Zhang San's application for retrial, the court held that the focus of the retrial review of this case is whether the evidence submitted by Zhang San's application for retrial is new evidence and whether it is sufficient to overturn the judgment of the second instance. The court only reviewed the reasons for Zhang San's application and related evidence that "there is new evidence sufficient to overturn the original judgment", and did not review the specific factual reasons for the wrong facts in the second-instance judgment. According to the judgment of the original trial, the form and content of the two witness testimonies submitted by Zhang San are not enough to overturn the basic facts and results of the judgment of the second instance ...... In summary, Zhang San's application for retrial does not comply with the circumstances stipulated in the first paragraph of Article 207 of the the People's Republic of China Civil Procedure Law.
Lawyer's opinion
1. The retrial procedure is a legal remedy for the correction of legal documents such as judgments and rulings that have already had legal effect.
China's trial is based on the principle of two-instance final trial, and some small claims use the first-instance final trial procedure. Therefore, applying for retrial has become an extremely important legal remedy after the case takes effect. According to Article 207 of the the People's Republic of China Civil Procedure Law, there are 13 kinds of situations that should be retried. Among them, there are five kinds of situations that should be retried due to evidence factors, namely: "(I) there is new evidence sufficient to overturn the original judgment or ruling; (II) the basic facts determined by the original judgment or ruling lack evidence; (III) the main evidence used to determine the facts in the original judgment or ruling is forged; (IV) the main evidence used to determine the facts in the original judgment or ruling has not been cross-examined; (V) the main evidence needed for the trial of the case cannot be collected by the parties themselves due to objective reasons, a written application is made to the people's court for investigation and collection, but the people's court has not investigated and collected". Thus, the importance of new evidence in the application for retrial procedure.
2. Combined with the specific circumstances of the retrial case in Shandong Province, it can be seen that the retrial review stage is the identification of new evidence is determined by the use of the criteria of the nature of the cover.
Statistics show that in the past five years, Shandong Provincial High Court has retried 20206 civil cases, of which 14813 cases have been applied for retrial due to evidence, accounting for 73% of all retrial cases, and 3714 cases have been applied for retrial due to new evidence, accounting for 18.36 of all retrial cases. However, the rate of retrial with new evidence has increased from 2.86 to 6.87, a full 2.5 times higher. It can be seen that the identification of new evidence in the retrial review process is based on the criteria of cover-up.
3. The retrial review procedure and the retrial trial procedure are two relatively independent stages in the trial supervision procedure.
The purpose of the retrial review procedure is to decide whether to initiate the retrial procedure, and the retrial procedure is to make a substantive judgment on the case. The difference in purpose and task determines that there are also major differences in the review standards adopted by the retrial review and the retrial trial. The function of the retrial review cannot be replaced by the function of the retrial review, nor can the purpose of the retrial review be replaced by the purpose of the retrial review.
4. When a new piece of evidence appears, can it be reversed through a retrial?
However, this is often not the case. The evidence not submitted in the original trial ≠ the new evidence in the retrial, and the new evidence in the retrial needs to meet the two major elements of substance and form, and according to the existing judicial practice, the formal element seems to be more important than the substantive element. According to the Supreme People's Court on the application<中华人民共和国民事诉讼法>The provisions of Item 1 of Article 387 of the Interpretation of the Law of the People's Republic of China (2020 Amendment) (hereinafter referred to as the Judicial Interpretation of the Civil Procedure Law) do not mean that a retrial can be initiated as long as there is new evidence, nor can a retrial be initiated if the new evidence can prove that the original judgment, the basic facts determined by the original ruling or the judgment result are wrong, it may be considered as new evidence for retrial. The basic facts refer to the facts that have a substantial impact on the outcome of the original judgment and ruling, such as the subject qualification of the parties, the nature of the case, and the civil rights and obligations. According to the point of view of the understanding and application of the judicial interpretation of the Civil Procedure Law, at the stage of retrial review, it is appropriate to adopt a high degree of probability standard, rather than requiring new evidence to overturn the original decision, otherwise it may lead to the case that should be retried not to enter the retrial or the retrial procedure formalization. The court submits new evidence for retrial, following the pre-review method of restoring the principle of basic facts, which includes three major aspects, namely, substantive review, reason review and subjective fault review.
Therefore, at the stage of retrial review, the assurance of "sufficient to overturn" should be based on a high degree of probability, rather than requiring new evidence to overturn the original decision, otherwise it is likely that the case that should be retried will not enter the retrial or the retrial procedure will be formalized.
Article Link
On January 1, 1.2022, item 1 of article 207 of the the People's Republic of China civil procedure law came into force, "there is new evidence sufficient to overturn the original judgment or ruling"
2. On April 10, 2022, the Supreme People's Court on Application<中华人民共和国民事诉讼法>Article 385 If the new evidence provided by the retrial applicant can prove that the original judgment or ruling determines the basic facts or the judgment result is wrong, it shall be deemed as the situation stipulated in Item 1 of Article 207 of the Civil Procedure Law.
For the evidence that meets the provisions of the preceding paragraph, the people's court shall order the applicant for retrial to explain the reasons for providing the evidence within the time limit. If he refuses to explain the reasons or the reasons are not tenable, it shall be dealt with in accordance with the provisions of paragraph 2 of Article 68 of the the People's Republic of China Civil procedure Law and Article 102 of this interpretation.
3. On April 10, 2022, the Supreme People's Court on the Application<中华人民共和国民事诉讼法>Article 395 The people's court shall decide whether to ask the parties according to the needs of examining the case. If the new evidence may reverse the original judgment or order, the people's court shall inquire the parties.
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