Retrial Examples | How should new evidence submitted at the retrial review stage be determined?
Published:
2022-02-07
Basic case The retrial applicant Zhang refused to accept the civil judgment of a city intermediate people's court and applied to the Shandong Provincial higher people's Court for a retrial because of a dispute over the right of recourse with the respondent, a real estate development company and a property management company. Zhang applied in accordance with items (I) and (II) of Article 200 of the the People's Republic of China Civil Procedure Law (amended in 2017). Subject matter I: Apply for a retrial on the ground that there is new evidence sufficient to overturn the original judgment. Zhang applied for retrial and submitted new evidence. One was a "Power Transmission and Transformation Project Installation Agreement" signed by a real estate development company and Zhang, which confirmed that there was a contractual relationship between the two parties. Zhang advanced the project price. A real estate development company shall return the advance money and pay interest before the expiration of the agreed period. The second is two witness testimonies, confirming the construction situation and the fact of advance funds. Subject matter II: Apply for retrial on the grounds that the basic facts found in the original judgment lack evidence. The original judgment found that the "certificate" issued by a property management co., ltd. submitted by Zhang on July 20, 2007 did not have the signature or seal of the producer or the person in charge of the unit in form, and did not meet the formal requirements of the unit to issue the certification materials. the original court did not adopt the validity of the evidence. Zhang believes that although the form of the "Certificate" issued by a property management company is flawed, it can be mutually confirmed with the "Power Transmission and Transformation Project Installation Agreement" and other evidence submitted for retrial, and it is wrong for the court of second instance not to accept the "Certificate. A real estate development company and a property management company submitted a written reply that the facts in the original judgment were clear and the applicable law was correct, and requested that Zhang's retrial application be rejected in accordance with the law. retrial court decision Zhang's lawsuit request is to order a real estate development co., ltd. to repay 1.05 million yuan and interest on the project advance, and a property management co., ltd. to assume joint repayment responsibility for the above debts. In the original trial, Zhang submitted evidence such as details of construction costs, recording of calls, and proof of arrears in order to confirm his claim. As for the details of construction costs, a real estate development co., ltd. and a property management co., ltd. did not approve them. the original trial considered them to be photocopies and made by Zhang mou unilaterally. there was no corresponding construction contract, construction log, project completion settlement documents and other evidence to support them. the proof effect of the evidence and the facts to be proved were not confirmed. With regard to the recording of the call, Zhang has no evidence to prove that the recorded person is the person in charge of the construction project he claims, and the recorded person has not explicitly recognized the arrears claimed by Zhang, and in the absence of other valid evidence to support it, the validity of the recording evidence and the facts to be proved in the original trial will not be determined. In the application for retrial, although Zhang submitted two receipts from China Mobile Communications Company, it was not enough to prove the identity of the person in charge of the construction project. On the validity of the certificate of arrears. The debt certificate provided by Zhang not only has the situation that the name of the person who wrote the money does not match the seal, but also does not have the signature or seal of the manager or the person in charge of the company. Zhang's evidence does not conform to the form prescribed by law, and the original trial is not accepted, which is not improper. On May 21, 2007, a real estate development company and Zhang signed a "Power Transmission and Transformation Project Installation Agreement" on Zhang's application for retrial, which intends to confirm the existence of a power transmission and transformation project construction contract relationship between the two parties. In this regard, the retrial court held that during the first trial of this case, Zhang made the following statement on the relevant inquiries of the court: the construction project from 2004 to 2007 did not sign a written contract, only had an oral agreement with the staff authorized by a real estate development company (the name is unknown), and there was no corresponding construction quantity record and account, and the construction quantity was not signed and confirmed by a real estate development company limited. The "Power Transmission and Transformation Project Installation Agreement" signed with a real estate development company on May 21, 2007, which is now claimed by Zhang, contradicts Zhang's court statement and does not conform to the "Supreme People's Court on Application".<中华人民共和国民事诉讼法>The Court will not accept the criteria for identifying new evidence. As for the witness testimony submitted by Zhang, it is intended to confirm the construction situation and the fact of advance payment, but it is not enough to overturn the original judgment without other evidence to support it. Therefore, Zhang's retrial reason for overturning the original judgment with new evidence cannot be established. Lawyer's opinion Item 1 of Article 217 of the the People's Republic of China Civil procedure Law (amended in 2021): "only when there is new evidence sufficient to overturn the original judgment or ruling" can the conditions for retrial be met. According to the first paragraph of Article 387 of the Interpretation of the the People's Republic of China Civil Procedure Law (revised in 2020) 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 as the situation stipulated in paragraph 1 of Article 200 of the Civil Procedure Law". In combination with this case, the court not only formally examines whether the new evidence submitted by the retrial applicant belongs to the new evidence submitted during the retrial, but also examines whether the new evidence is "sufficient to overturn" the facts identified in the original judgment and ruling. In the retrial review stage, the court takes the high probability as the standard for the new evidence, instead of adopting the unnecessary standard, too strict with "sufficient to overturn" as the standard may cause the application for retrial to become a mere formality. First, the retrial of new evidence must meet the standards set by the law and judicial interpretation. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Interpretation (2020 Amendment) "Article 388:" If the retrial applicant proves that the new evidence submitted by him meets one of the following circumstances, the reason for overdue provision of evidence may be determined to be valid: (1) it existed before the end of the original trial and was discovered after the end of the trial due to objective reasons; (II) it has been discovered before the end of the original trial, however, it cannot be obtained due to objective reasons or cannot be provided within the prescribed time limit; the (III) is formed after the end of the original trial, and a separate lawsuit cannot be filed accordingly. If the evidence submitted by the retrial applicant has been provided in the original trial, and the people's court of the original trial has not organized cross-examination and has not been used as the basis for the judgment, it shall be deemed that the reason for providing the evidence within the time limit is established, but the people's court of the original trial shall be in accordance with Article 65 of the Civil procedure Law ". Secondly, the probative force of the new evidence must be sufficient to overturn the original judgment and ruling in order to cause a retrial. In essence, the probative force of the new evidence must be sufficient to overturn the original judgment or ruling in order to cause a retrial. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Article 387 of the Interpretation (2020 Amendment): "If the new evidence provided by the retrial applicant can prove that the original judgment, ruling, the determination of the basic facts or the judgment result is wrong, it shall be deemed as the situation stipulated in Item 1 of Article 200 of the Civil Procedure Law. For the evidence that meets the provisions of the preceding paragraph, the people's court shall order the retrial applicant 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 65 of the Civil procedure Law and the provisions of Article 102 of this interpretation". Finally, the judicial view of the People's Court of the Supreme Court also holds that at the stage of retrial review, the assurance of "sufficient to overturn" should be based on a high degree of certainty, rather than requiring new evidence to overturn the original decision. The new evidence at the retrial review stage meets the requirements of the first paragraph of Article 387 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law. How to grasp the standard of "sufficient to overturn", there are two approaches in practice: one is to adopt the standard of inevitability, that is, the original judgment must be changed after the retrial; the other is to adopt the standard of probability, that is, the evidence may overturn the original judgment. Because the retrial review procedure and the retrial 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 different purposes and tasks of the two procedures determine that there are significant differences between the review standards adopted by the retrial review and the retrial trial. The function of retrial review cannot be replaced by the function of retrial review. Not to mention the purpose of retrial review can be replaced by the purpose of retrial, otherwise the protection of the right of the parties to apply for retrial and the maintenance of the effective judgment of the res judicata are diametrically opposed, denying the unique procedural function of retrial 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 be retried or the retrial procedure will be formalized.</中华人民共和国民事诉讼法></中华人民共和国民事诉讼法></中华人民共和国民事诉讼法>
Basic case
The retrial applicant Zhang refused to accept the civil judgment of a city intermediate people's court and applied to the Shandong Provincial higher people's Court for a retrial because of a dispute over the right of recourse with the respondent, a real estate development company and a property management company. Zhang applied in accordance with items (I) and (II) of Article 200 of the the People's Republic of China Civil Procedure Law (amended in 2017). Subject matter I: Apply for a retrial on the ground that there is new evidence sufficient to overturn the original judgment. Zhang applied for retrial and submitted new evidence. One was a "Power Transmission and Transformation Project Installation Agreement" signed by a real estate development company and Zhang, which confirmed that there was a contractual relationship between the two parties. Zhang advanced the project price. A real estate development company shall return the advance money and pay interest before the expiration of the agreed period. The second is two witness testimonies, confirming the construction situation and the fact of advance funds. Subject matter II: Apply for retrial on the grounds that the basic facts found in the original judgment lack evidence. The original judgment found that the "certificate" issued by a property management co., ltd. submitted by Zhang on July 20, 2007 did not have the signature or seal of the producer or the person in charge of the unit in form, and did not meet the formal requirements of the unit to issue the certification materials. the original court did not adopt the validity of the evidence. Zhang believes that although the form of the "Certificate" issued by a property management company is flawed, it can be mutually confirmed with the "Power Transmission and Transformation Project Installation Agreement" and other evidence submitted for retrial, and it is wrong for the court of second instance not to accept the "Certificate. A real estate development company and a property management company submitted a written reply that the facts in the original judgment were clear and the applicable law was correct, and requested that Zhang's retrial application be rejected in accordance with the law.
retrial court decision
Zhang's lawsuit request is to order a real estate development co., ltd. to repay 1.05 million yuan and interest on the project advance, and a property management co., ltd. to assume joint repayment responsibility for the above debts. In the original trial, Zhang submitted evidence such as details of construction costs, recording of calls, and proof of arrears in order to confirm his claim. As for the details of construction costs, a real estate development co., ltd. and a property management co., ltd. did not approve them. the original trial considered them to be photocopies and made by Zhang mou unilaterally. there was no corresponding construction contract, construction log, project completion settlement documents and other evidence to support them. the proof effect of the evidence and the facts to be proved were not confirmed. With regard to the recording of the call, Zhang has no evidence to prove that the recorded person is the person in charge of the construction project he claims, and the recorded person has not explicitly recognized the arrears claimed by Zhang, and in the absence of other valid evidence to support it, the validity of the recording evidence and the facts to be proved in the original trial will not be determined. In the application for retrial, although Zhang submitted two receipts from China Mobile Communications Company, it was not enough to prove the identity of the person in charge of the construction project. On the validity of the certificate of arrears. The debt certificate provided by Zhang not only has the situation that the name of the person who wrote the money does not match the seal, but also does not have the signature or seal of the manager or the person in charge of the company. Zhang's evidence does not conform to the form prescribed by law, and the original trial is not accepted, which is not improper. On May 21, 2007, a real estate development company and Zhang signed a "Power Transmission and Transformation Project Installation Agreement" on Zhang's application for retrial, which intends to confirm the existence of a power transmission and transformation project construction contract relationship between the two parties. In this regard, the retrial court held that during the first trial of this case, Zhang made the following statement on the relevant inquiries of the court: the construction project from 2004 to 2007 did not sign a written contract, only had an oral agreement with the staff authorized by a real estate development company (the name is unknown), and there was no corresponding construction quantity record and account, and the construction quantity was not signed and confirmed by a real estate development company limited. The "Power Transmission and Transformation Project Installation Agreement" signed with a real estate development company on May 21, 2007, which is now claimed by Zhang, contradicts Zhang's court statement and does not conform to the "Supreme People's Court on Application".<中华人民共和国民事诉讼法>The Court will not accept the criteria for identifying new evidence. As for the witness testimony submitted by Zhang, it is intended to confirm the construction situation and the fact of advance payment, but it is not enough to overturn the original judgment without other evidence to support it. Therefore, Zhang's retrial reason for overturning the original judgment with new evidence cannot be established.
Lawyer's opinion
Item 1 of Article 217 of the the People's Republic of China Civil procedure Law (amended in 2021): "only when there is new evidence sufficient to overturn the original judgment or ruling" can the conditions for retrial be met. According to the first paragraph of Article 387 of the Interpretation of the the People's Republic of China Civil Procedure Law (revised in 2020) 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 as the situation stipulated in paragraph 1 of Article 200 of the Civil Procedure Law". In combination with this case, the court not only formally examines whether the new evidence submitted by the retrial applicant belongs to the new evidence submitted during the retrial, but also examines whether the new evidence is "sufficient to overturn" the facts identified in the original judgment and ruling. In the retrial review stage, the court takes the high probability as the standard for the new evidence, instead of adopting the unnecessary standard, too strict with "sufficient to overturn" as the standard may cause the application for retrial to become a mere formality.
First, the retrial of new evidence must meet the standards set by the law and judicial interpretation.
The Supreme People's Court on the application<中华人民共和国民事诉讼法>Interpretation (2020 Amendment) "Article 388:" If the retrial applicant proves that the new evidence submitted by him meets one of the following circumstances, the reason for overdue provision of evidence may be determined to be valid: (1) it existed before the end of the original trial and was discovered after the end of the trial due to objective reasons; (II) it has been discovered before the end of the original trial, however, it cannot be obtained due to objective reasons or cannot be provided within the prescribed time limit; the (III) is formed after the end of the original trial, and a separate lawsuit cannot be filed accordingly. If the evidence submitted by the retrial applicant has been provided in the original trial, and the people's court of the original trial has not organized cross-examination and has not been used as the basis for the judgment, it shall be deemed that the reason for providing the evidence within the time limit is established, but the people's court of the original trial shall be in accordance with Article 65 of the Civil procedure Law ".
Secondly, the probative force of the new evidence must be sufficient to overturn the original judgment and ruling in order to cause a retrial.
In essence, the probative force of the new evidence must be sufficient to overturn the original judgment or ruling in order to cause a retrial. The Supreme People's Court on the application<中华人民共和国民事诉讼法>Article 387 of the Interpretation (2020 Amendment): "If the new evidence provided by the retrial applicant can prove that the original judgment, ruling, the determination of the basic facts or the judgment result is wrong, it shall be deemed as the situation stipulated in Item 1 of Article 200 of the Civil Procedure Law. For the evidence that meets the provisions of the preceding paragraph, the people's court shall order the retrial applicant 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 65 of the Civil procedure Law and the provisions of Article 102 of this interpretation".
Finally, the judicial view of the People's Court of the Supreme Court also holds that at the stage of retrial review, the assurance of "sufficient to overturn" should be based on a high degree of certainty, rather than requiring new evidence to overturn the original decision.
The new evidence at the retrial review stage meets the requirements of the first paragraph of Article 387 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law. How to grasp the standard of "sufficient to overturn", there are two approaches in practice: one is to adopt the standard of inevitability, that is, the original judgment must be changed after the retrial; the other is to adopt the standard of probability, that is, the evidence may overturn the original judgment. Because the retrial review procedure and the retrial 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 different purposes and tasks of the two procedures determine that there are significant differences between the review standards adopted by the retrial review and the retrial trial. The function of retrial review cannot be replaced by the function of retrial review. Not to mention the purpose of retrial review can be replaced by the purpose of retrial, otherwise the protection of the right of the parties to apply for retrial and the maintenance of the effective judgment of the res judicata are diametrically opposed, denying the unique procedural function of retrial 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 be retried or the retrial procedure will be formalized.
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