Viewpoint | A brief analysis of how to start the retrial procedure in civil cases

【Abstract】Civil retrial system is to correct the legal effect of the wrong judgment, ruling, in accordance with the trial supervision procedures, the case re-trial. If a party refuses to accept the judgment or order of the original trial and applies for a retrial, it shall be submitted six months after the judgment or order takes legal effect. Application for retrial must meet the statutory conditions, and need to submit a retrial application. The application for retrial is the embodiment of the lawyer's ability to analyze the facts of the case and apply the law. In view of this, this paper will make some preliminary discussion on the specific system of retrial and the operational skills in the retrial procedure, so that more lawyers can understand, master and skillfully use it, so as to improve the probability of ruling retrial cases.

【Key words】The legalization of the retrial system; The retrial review system; The key points of the retrial cases

Reform of the Retrial System in the New Civil Procedure Law of 1.

The difficulty of retrial has always been an eternal topic, especially before 2008, in the relevant laws and regulations, although the principle is too strong, it is difficult to operate in practice. For the parties, they lack the understanding of the retrial procedure. Even if they are not satisfied with the judgment, they can only passively accept the fact of losing the lawsuit.

On October 28, 2007, the 30th meeting of the Standing Committee of the Tenth National People's Congress "Decision on Amending the the People's Republic of China Civil Procedure Law" was revised for the first time, mainly focusing on trial supervision procedures and enforcement procedures. The revision of the trial supervision procedure mainly involves the main issues such as the reasons for retrial, the court for hearing retrial cases, the filing of retrial applications and the time limit for review. The promulgation of this decision has solved the problem of retrial to a certain extent, but there are still many shortcomings. On August 31, 2012, the 28th meeting of the Standing Committee of the 11th National People's Congress revised the Decision on Amending the the People's Republic of China Civil Procedure Law for the second time, and on June 27, 2017, the 28th meeting of the Standing Committee of the 12th National People's Congress revised the Decision on Amending the the People's Republic of China Civil Procedure Law and the the People's Republic of China Administrative Procedure Law for the third time), further revised the retrial issue to make the retrial system procedural and legal. For this reason, the number of retrial cases has increased, and the Shandong Higher People's Court will receive tens of thousands of civil retrial cases in 2020.

The specific system of 2. application for retrial

1. About the retrial period

Article 205 of the Civil Procedure Law stipulates that the time limit for applying to the court for retrial of civil cases is generally 6 months. In exceptional circumstances, the six-month period may be exempted. The starting point for the six-month period here is calculated from the day after the receipt of the judgment or ruling. However, the following four cases are filed within six months from the date when they know or should have known. If there is new evidence sufficient to overturn the original judgment or ruling; the main evidence used to determine the facts in the original judgment or ruling is forged; the legal documents on which the original judgment or ruling was made have been revoked or changed; the judges have embezzled and accepted bribes, practiced favoritism, or perverted the law when trying the case.

2. The court with jurisdiction over the retrial

Article 199 of the the People's Republic of China Civil Procedure Law stipulates the court with jurisdiction over retrial cases. On the basis of adhering to the stipulation of "applying for retrial to a higher level", this article adds that cases with a large number of parties and both parties are citizens can also apply to the people's court of the original trial for retrial, thus changing the principle that all applications for retrial are under the jurisdiction of the higher court.

If the parties believe that there is an error in a legally effective judgment or ruling, they may apply to the people's court at the next higher level for a retrial; if one party has a large number of parties or both parties are citizens, they may also apply to the people's court that originally tried the case for a retrial, and of course to the people's court at the next higher level for a retrial. If the parties apply for retrial to the people's court of the original trial and the people's court at the next higher level respectively and are not consistent, the people's court of the original trial shall accept the application. If the people's court of the original trial has accepted the case and has compiled the case number of Shen Zi, and the party concerned is accepting the case to the people's court at the next higher level, the people's court at the next higher level shall not accept the case. In trial practice, for cases applying for retrial in Shandong Province, the Intermediate People's Court receives retrial materials and conducts joint mediation and joint resolution procedures. After the joint mediation and joint resolution procedures are completed, for cases where both parties are individual citizens and one party has a large number of parties (more than ten), they will stay in the Intermediate People's Court for retrial review. The exception is that if the case has been discussed by the trial committee of the original trial people's court, after review, it is generally examined by the people's court at the next higher level. For one or both parties are legal persons and other units submitted to the Shandong Provincial Higher People's Court for review.

3. Submission and review of application for retrial materials

The parties submit retrial materials to the original court, and the original court examines whether the subject, cause and period of the application for retrial meet the legal conditions and whether the materials for retrial meet the requirements. If the application for retrial meets the statutory conditions, but the application for retrial materials do not meet the requirements, it is necessary to inform the parties of the materials that need to be supplemented and corrected at one time, and accept the examination in a timely manner after the parties have supplemented and corrected them. In the trial practice, when the parties apply for retrial, they need to apply for filing a case from the electronic litigation service platform of Shandong court. Through the online application, the court will initially examine the submitted materials from the Internet. If the materials are unqualified, they will notify the supplementary and revised materials through the litigation service platform and SMS, which not only saves the time cost of the parties, It also greatly improves the work efficiency of the court.

4. Object of retrial

In principle, the object of retrial has been legally effective erroneous judgments, rulings, mediation documents.

If the party considers that the legally effective decision of inadmissibility or dismissal of the prosecution is wrong, he may apply for a retrial. It should be noted that the parties can also apply for a retrial if they are not satisfied with the decision made by the application of the small claims procedure, but the court will generally let the parties apply to the original people's court for a retrial. The parties may also apply for a retrial on the issue of property division in divorce cases. If the property divided in the judgment is involved, the people's court shall conduct a review, and if the conditions for retrial are met, it shall order a retrial; if the joint property of the husband and wife that has not been dealt with in the judgment is involved, The parties shall be notified to sue separately.

5. There are exceptions to several cases in which a retrial cannot be applied.

(1) The applicant for retrial applies to the people's court for retrial after the people's court rejects his application for retrial;

(2) The party concerned considers that there is an error in the retrial judgment or order and applies to the people's court for retrial again;

(3) Judgments or rulings of the people's court of first instance that are effective first instance judgments or rulings made by the court after retrial and the parties have not appealed within the statutory period;

(4) Judgments and rulings made by the people's court of second instance after the court has retried the effective second instance judgment and ruling;

(5) Judgments and rulings made by the people's court at a higher level after the effective judgment or order is brought up for trial.

An application to a higher court for retrial against the decision to suspend the trial shall be rejected. Because the suspension of trial ruling is the procedural disposal of the temporary suspension of the case made by the people's court, it is the stage treatment made by the people's court to the case under trial, not the end of the litigation procedure, and the trial supervision procedure is the ruling on the substantive rights, and it is the relief procedure for the procedural ruling that directly affects the substantive rights of the parties.

The parties shall not apply for a retrial of a case to which non-contentious proceedings, such as special procedures, supervisory proceedings, public notice proceedings and bankruptcy proceedings are applicable.

The application for retrial on the ground of violating the true will after the completion of the mediation agreement shall be rejected.

Because the litigation settlement agreement is the agreement formed by the parties to the case through mutual concessions in order to terminate the dispute or prevent the recurrence of the dispute, the content of the settlement agreement is not limited to the litigant's claim. In this case, if the parties sign the settlement agreement and receive the money paid by the other party in accordance with the settlement agreement, and then apply for a retrial on the grounds that the mediation is against their true will, the application for retrial shall be rejected.

6. On the issue of retrial costs

Retrial cases generally do not pay litigation fees, but there are two exceptions.

(1) Cases in which the parties have new evidence sufficient to overturn the original judgment or ruling, apply to the people's court for retrial, and the people's court decides to retry after examination;

(2) Cases in which the parties have not appealed against the judgment or ruling of the people's court of first instance, and the judgment, ruling or mediation statement of first instance has become legally effective and then apply for retrial, and the people's court decides to retry after examination.

3. retrial review procedure

1. In general, the review period is three months, but there are exceptions.

The review period for the parties to apply for retrial is three months, that is to say, within three months, either a ruling is rejected, or a ruling is retrial, or a ruling is made to terminate the review, the merger and other special treatment, in short, there must be a review result. However, there are exceptions, because written files are often required to be retrieved for retrial cases. Judges review more carefully and consider more thoroughly. There are many internal examination and approval procedures. In some cases, judges who think that retrial is possible will often report to the joint meeting of presiding judges or even the adjudication committee to discuss and decide. Therefore, as the agent of the retrial applicant, he should seize the opportunity to communicate with the host judge more about the case so that the judge can consider it more carefully and comprehensively.

2. The review method is a combination of written review and exceptions.

If the people's court examines a general retrial case in writing, and may decide whether to ask the parties according to the needs of the case, and apply for retrial on the grounds that there is new evidence sufficient to overturn the original judgment or ruling, the people's court shall ask the parties.

Although the civil procedure law has been revised twice, the retrial review procedure has certain litigation attributes, but after all, it is different from the retrial and judgment procedure, and the civil procedure law does not provide for the hearing system during the review period. The "hearing" in judicial practice is also different from the hearing. Its procedure is relatively flexible and does not require all collegiate panels to attend. In practice, it is often presided over by the judge and recorded by the clerk. The opinions of both parties or one party can be heard.

Not all cases that apply for retrial on the grounds of "new evidence" will necessarily be questioned. The judge in the preliminary examination, that "new evidence" is established, to rule a retrial, must ask. In practice, the so-called "new evidence" in most cases does not meet the substantive requirements for overturning the effective judgment, and the application can be rejected directly without inquiry.

3, the retrial procedure can be identified

Application for appraisal is the litigation right of the parties in the second instance of the original 1., and the object of retrial review is whether there is a retrial cause in the effective judgment. In my opinion, the law and judicial interpretation does not prohibit the court from entrusting the appraisal according to its authority during the retrial review, nor does it prohibit the parties from unilaterally providing "appraisal conclusions, so it is necessary for the court to review and judge the basic facts and decide whether to adopt the appraisal conclusions of one of the parties or to initiate the appraisal procedure according to its authority.

4. After the review, the court will make a ruling such as rejection, arraignment, order, and return to terminate the retrial review procedure.

As far as the retrial ruling is concerned, it cannot be the object of appeal or retrial. If the retrial applicant is not satisfied with the rejection, he can only protect his rights by applying for procuratorial supervision. If he refuses to accept the appeal, order and return, he can only apply for procuratorial supervision for relief.

Key Points of 4. Agency's Work in Retrial Cases

The key work of acting for retrial cases is to write the application for retrial and sort out the evidence. Because many lawyers do not understand the characteristics and procedures of retrial cases, they often simply state the facts in the way of writing civil charges for civil retrial applications, thinking that they will win when they receive the notice of acceptance of the case, and even some of the respondent's lawyers are waiting for the notice of hearing after receiving the notice of acceptance of the case. As the agent of the retrial applicant, after receiving the notice of acceptance of the case, he must grasp the prime time to submit the agency opinions in time, communicate with the judge in writing and exchange the case, and the agent of the respondent must write the reply and submit it in time.

1. The agent of the applicant for retrial shall write the application for retrial in accordance with the fixed format prescribed by the court, and shall focus on one or more of the 13 reasons for retrial, and combine the facts of the case with the applicable law and the application of evidence.

According to the author's accumulated experience for many years, the second and sixth items are mostly used in the general cases of these 13 items, which are also the funds with the greatest probability of arraignment, order retrial or designation of retrial after review by the retrial court. The author calls it the bottom-up clause or the lucky clause. Errors in the determination of facts and evidence generally refer to errors in the determination of the main facts or main evidence of the case by the original effective judgment. Generally speaking, the judgment of the second instance is mainly written for the losing party to see. In order to achieve the purpose of serving the judgment, the judge of the second instance will try his best to combine the basic facts with the existing evidence to deduce the legal facts. While safeguarding the interests of the winning party, he may take care of one and lose the other. This requires the agent to ponder carefully and find out the factual basis of the retrial from the aspects of the logical structure of the judgment, the way of argumentation, the style of reasoning, the allocation of the burden of proof, the acceptance of the evidence, the strength and interrelationship of the probative force, and the explanation of the determination result and basis of the disputed facts, so as to write a convincing application for retrial. The application of the law is also a subjective and objective process, a process of applying the principles of the law to specific cases. Specifically, it can be considered in terms of the nature, effectiveness, status of the disputed legal relationship, the reasons and basis for the selection and application of legal provisions, because the judge's personal theoretical basis, social experience, judicial experience, and different understandings of legal norms may cause the judgment result to favor one side. Therefore, there may be errors in the application of the law. As long as the agent grasps it well, on the basis of fully expounding the connection point between the facts of the case and the provisions of the law, we should analyze the facts at all levels, write a good application for retrial, and do a good job in the basic work for starting the retrial procedure to be revised.

2, timely and comprehensive combing of evidence

The incomplete evidence provided by the retrial applicant is a frequent problem in the retrial review. Because judges often obtain electronic files from the 1. court of second instance when reviewing retrial cases, the electronic files look far less comfortable and clear than written materials. Therefore, in order to facilitate judges to achieve the purpose of ruling retrial, the author suggests that it is necessary to sort out the evidence comprehensively, form a closed chain of evidence, and provide the list of evidence to the examining judge, which will be beneficial to the examination of the case.

In a word, retrial cases, as the court's error correction procedure, will be stricter in procedure, more difficult to start, and more rigorous in examining evidence than 1. cases of second instance. However, facts are facts. As long as we carefully study the case, combine relevant evidence, and make our point of view clear, we will definitely return the case to truth and the parties to justice.