Examples of retrial | Can the parties apply for retrial and file a protest against the retrial judgment?
Published:
2022-03-21
Brief description of the case In the case of a private lending dispute between Zhang and Zhao, Zhang lent ten million yuan to Zhao in 2012 without agreeing on interest. During the loan period, both parties paid interest at 20% of the annual interest rate. During the period, the two parties had other economic exchanges. In 2018, the two parties re-issued a debit note, recording that Zhang lent RMB 10 million to Zhao, with no agreed interest, and in actual performance, Zhao repaid a fixed amount of RMB to Zhang every month (for which the two parties are in dispute over whether the principal or interest of the repayment). After the dispute between the two sides, in 2020 Zhang as a creditor to the people's court to claim the remaining loan principal and interest. Zhao filed a counterclaim, requesting a judgment on Zhang's return of the over-paid loan and interest. After the case was heard by the 1. court of second instance, the court of second instance upheld the judgment of first instance and ordered the debtor Zhao to pay the remaining principal and interest of the loan. Zhao believes that the second trial judgment is wrong and applies to the court for a retrial. After accepting Zhao's application for retrial, the people's court rejected his application for retrial. Zhao still refused to accept the judgment of the second instance and applied to the people's Procuratorate for procuratorial supervision. The people's Procuratorate filed a protest with the court. After the retrial of the trial supervision procedure, the people's court revoked the judgment of the second instance and changed the judgment that Zhang returned the principal and interest of the overpaid loan to Zhao. Creditor Zhang is not satisfied with the retrial judgment. At this time, can Zhang apply to the court for retrial or protest to the people's procuratorate? Is there any other remedy? 1. in this case, Zhang cannot apply to the court for a retrial, nor can he apply to the procuratorate for a protest After the judgment of the second instance of the (I) comes into effect, the appellant, the appellee and other parties to the case have the right to apply for a retrial in accordance with the law for the judgment and ruling of the second instance that has taken effect. Both parties may have the right to apply for a retrial within the statutory time limit. If both parties apply for a retrial, the retrial court shall examine the case together and make a judgment. When one party applies for a retrial within the statutory period and the other party fails to apply for a retrial within the statutory period, its right to apply for a retrial has been extinguished due to the expiration of the statute of limitations. After the termination of the trial supervision procedure caused by one party's application for retrial, the procedural rights of all parties to apply for retrial against the legally effective second-instance judgment and ruling have been eliminated, and the other party will not reserve the right to apply for retrial to the retrial court for another time because the other party has not exercised the right to apply for retrial within the statutory period. Therefore, once the retrial judgment is made, neither party has the right to apply for retrial. Article 383 of the Interpretation of the Supreme People's Court of the (II) on the Application of the the People's Republic of China Civil Procedure Law (2020 Amendment) stipulates that "If a party applies for retrial under any of the following circumstances, the people's court shall not accept it: 1. The application is filed again after the application for retrial has been rejected; 2. An application for a retrial judgment or ruling; 3. The application is filed after the People's Procuratorate has made a decision not to submit a retrial procuratorial proposal or protest against the application of the party. Under the circumstances specified in items 1 and 2 of the preceding paragraph, the people's court shall inform the parties concerned that they may apply to the people's procuratorate for retrial procuratorial suggestions or protests, except for judgments and rulings made in retrial due to the people's procuratorate's retrial procuratorial suggestions or protests." The above provisions are the legal basis for the retrial judgment not to apply for retrial, nor to apply to the procuratorate to protest. Combined with this case, because Zhao was not satisfied with the judgment of the second instance, he applied to the court for retrial. After the people's court rejected his application for retrial, he applied to the people's Procuratorate for protest. The protest organ believes that there is an error in the judgment of the second instance, and after submitting a protest to the people's court, the people's court initiates the trial supervision procedure and changes the judgment. The respondent Zhang believes that the facts of the court of second instance are clear and the legal evidence is applicable. Zhang is not satisfied with the retrial judgment and cannot apply for retrial or apply to the procuratorate for protest. 2. on the way to initiate retrial proceedings ex officio The retrial procedure is an important way for the people's court to correct errors. The retrial procedure can be initiated on application, by the procuratorate, or ex officio. The method of initiation is different, and the trial supervision procedures applied are also different. Article 205 of the the People's Republic of China Civil Procedure Law (amended in 2021) stipulates that "if the presidents of the people's courts at all levels find that there are definite errors in the judgments, rulings or conciliation statements that have taken legal effect in their courts and believe that a retrial is necessary, they shall submit them to the adjudication 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". The provisions of this article are that the court initiates the retrial procedure according to its functions and powers. If the president of the court discovers a legally effective judgment, ruling or mediation statement and finds that there is a definite error, the president shall submit it to the members of the judicial committee for discussion and decision; if the people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of the people's court at a lower level, it shall have the right to bring the right to trial or instruct the people's court to retrial. Specifically in this case, the creditor Zhang is not satisfied with the retrial judgment made through the procuratorate's protest, and may not apply for retrial, nor may he apply for the procuratorate's protest. If the retrial judgment is indeed wrong, the president finds that the retrial procedure is initiated. In practice, the president finds that the retrial procedure is started. First, the parties concerned should submit the application form and relevant evidence. After the president of the court finds that there may be errors in the original effective judgment, he submits it to the trial committee for discussion. The trial committee decides that the retrial of the case is based on the trial supervision procedure, it is not an inevitable procedure, let alone a way to initiate a retrial based on the subjective judgment of the parties. Finally, if the parties are not satisfied with the effective judgment and want to start the trial supervision procedure through the president, how to submit the materials and in which way to receive the materials are not completely unified by the local courts.
Brief description of the case
In the case of a private lending dispute between Zhang and Zhao, Zhang lent ten million yuan to Zhao in 2012 without agreeing on interest. During the loan period, both parties paid interest at 20% of the annual interest rate. During the period, the two parties had other economic exchanges. In 2018, the two parties re-issued a debit note, recording that Zhang lent RMB 10 million to Zhao, with no agreed interest, and in actual performance, Zhao repaid a fixed amount of RMB to Zhang every month (for which the two parties are in dispute over whether the principal or interest of the repayment). After the dispute between the two sides, in 2020 Zhang as a creditor to the people's court to claim the remaining loan principal and interest. Zhao filed a counterclaim, requesting a judgment on Zhang's return of the over-paid loan and interest. After the case was heard by the 1. court of second instance, the court of second instance upheld the judgment of first instance and ordered the debtor Zhao to pay the remaining principal and interest of the loan. Zhao believes that the second trial judgment is wrong and applies to the court for a retrial. After accepting Zhao's application for retrial, the people's court rejected his application for retrial. Zhao still refused to accept the judgment of the second instance and applied to the people's Procuratorate for procuratorial supervision. The people's Procuratorate filed a protest with the court. After the retrial of the trial supervision procedure, the people's court revoked the judgment of the second instance and changed the judgment that Zhang returned the principal and interest of the overpaid loan to Zhao. Creditor Zhang is not satisfied with the retrial judgment. At this time, can Zhang apply to the court for retrial or protest to the people's procuratorate? Is there any other remedy?
1. in this case, Zhang cannot apply to the court for a retrial, nor can he apply to the procuratorate for a protest
After the judgment of the second instance of the (I) comes into effect, the appellant, the appellee and other parties to the case have the right to apply for a retrial in accordance with the law for the judgment and ruling of the second instance that has taken effect.
Both parties may have the right to apply for a retrial within the statutory time limit. If both parties apply for a retrial, the retrial court shall examine the case together and make a judgment. When one party applies for a retrial within the statutory period and the other party fails to apply for a retrial within the statutory period, its right to apply for a retrial has been extinguished due to the expiration of the statute of limitations. After the termination of the trial supervision procedure caused by one party's application for retrial, the procedural rights of all parties to apply for retrial against the legally effective second-instance judgment and ruling have been eliminated, and the other party will not reserve the right to apply for retrial to the retrial court for another time because the other party has not exercised the right to apply for retrial within the statutory period. Therefore, once the retrial judgment is made, neither party has the right to apply for retrial.
Article 383 of the Interpretation of the Supreme People's Court of the (II) on the Application of the the People's Republic of China Civil Procedure Law (2020 Amendment) stipulates that "If a party applies for retrial under any of the following circumstances, the people's court shall not accept it:
1. The application is filed again after the application for retrial has been rejected;
2. An application for a retrial judgment or ruling;
3. The application is filed after the People's Procuratorate has made a decision not to submit a retrial procuratorial proposal or protest against the application of the party.
Under the circumstances specified in items 1 and 2 of the preceding paragraph, the people's court shall inform the parties concerned that they may apply to the people's procuratorate for retrial procuratorial suggestions or protests, except for judgments and rulings made in retrial due to the people's procuratorate's retrial procuratorial suggestions or protests."
The above provisions are the legal basis for the retrial judgment not to apply for retrial, nor to apply to the procuratorate to protest.
Combined with this case, because Zhao was not satisfied with the judgment of the second instance, he applied to the court for retrial. After the people's court rejected his application for retrial, he applied to the people's Procuratorate for protest. The protest organ believes that there is an error in the judgment of the second instance, and after submitting a protest to the people's court, the people's court initiates the trial supervision procedure and changes the judgment. The respondent Zhang believes that the facts of the court of second instance are clear and the legal evidence is applicable. Zhang is not satisfied with the retrial judgment and cannot apply for retrial or apply to the procuratorate for protest.
2. on the way to initiate retrial proceedings ex officio
The retrial procedure is an important way for the people's court to correct errors. The retrial procedure can be initiated on application, by the procuratorate, or ex officio. The method of initiation is different, and the trial supervision procedures applied are also different.
Article 205 of the the People's Republic of China Civil Procedure Law (amended in 2021) stipulates that "if the presidents of the people's courts at all levels find that there are definite errors in the judgments, rulings or conciliation statements that have taken legal effect in their courts and believe that a retrial is necessary, they shall submit them to the adjudication 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". The provisions of this article are that the court initiates the retrial procedure according to its functions and powers. If the president of the court discovers a legally effective judgment, ruling or mediation statement and finds that there is a definite error, the president shall submit it to the members of the judicial committee for discussion and decision; if the people's court at a higher level finds that there is a definite error in a legally effective judgment, ruling or mediation statement of the people's court at a lower level, it shall have the right to bring the right to trial or instruct the people's court to retrial.
Specifically in this case, the creditor Zhang is not satisfied with the retrial judgment made through the procuratorate's protest, and may not apply for retrial, nor may he apply for the procuratorate's protest. If the retrial judgment is indeed wrong, the president finds that the retrial procedure is initiated.
In practice, the president finds that the retrial procedure is started. First, the parties concerned should submit the application form and relevant evidence. After the president of the court finds that there may be errors in the original effective judgment, he submits it to the trial committee for discussion. The trial committee decides that the retrial of the case is based on the trial supervision procedure, it is not an inevitable procedure, let alone a way to initiate a retrial based on the subjective judgment of the parties. Finally, if the parties are not satisfied with the effective judgment and want to start the trial supervision procedure through the president, how to submit the materials and in which way to receive the materials are not completely unified by the local courts.
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