Perspective | Conclusion and Remedies in Criminal Second Instance Cases

The right to appeal is a statutory right of the complainant and the defendant in criminal cases. As a right, there is the freedom to choose to waive it. When the appellant applies to withdraw the appeal, the court will have three handling methods:
 

First,If the appellant withdraws the appeal within the appeal period (10 days for judgments, 5 days for rulings), the court should allow it. It is worth noting that according to Article 231 of the Criminal Procedure Law, the appeal can be submitted to the original trial court or to its higher court. The withdrawal of the appeal clearly also applies to this article, but the original trial court should review whether to allow the withdrawal during the appeal period.

The above also applies to the plaintiffs and defendants in criminal incidental civil litigation. Their appeal period is the same as that of criminal cases, and the same applies if the incidental civil part is tried separately in a timely manner.

Second,If the appellant withdraws the appeal after the appeal period has expired, whether to allow the withdrawal should be reviewed by the second instance court. The "review" here includes three aspects: the facts determined by the original trial, the applicable law, and the trial procedure.

If the original trial judgment is indeed erroneous, the second instance court will rule not to allow the withdrawal and continue the trial.

Third,In cases where the death penalty is to be executed immediately, if the appeal case has been heard but not yet pronounced, the withdrawal is not allowed, and the trial will continue.

The procuratorial organ at the same level as the first-instance court and its higher procuratorial organ have the right to appeal against the first-instance judgment. According to Article 21 of the "Guidelines for the Work of People's Procuratorates on Appeals" issued by the Supreme People's Procuratorate in 2017: "After the lower people's procuratorate receives the first-instance judgment from the people's court, it should report to the higher people's procuratorate within 2 days. If the higher people's procuratorate believes that an appeal should be made, it should promptly notify the lower people's procuratorate."
 

The withdrawal of the appeal by the procuratorial organ can be partial or complete. The aforementioned "Appeal Guidelines" Article 29 states: "(2) If the original judgment is indeed erroneous, and the appeal opinion is partially correct, it can change or supplement the reasons for the appeal and propose partial support for the appeal; (3) If the original judgment is not improper, and the appeal opinion is inappropriate, it should propose to withdraw the appeal."

It is particularly important to note: In cases where the defendant chooses to plead guilty and accept punishment in the first instance, and then appeals on the grounds of excessive sentencing, the defense lawyer in the second instance should handle it with caution.

Article 236 of the Criminal Procedure Law states: "If the facts determined by the original trial and the applicable law are correct, and the sentencing is appropriate, the appeal or appeal should be dismissed, and the original judgment should be upheld."
 

In judicial practice, for cases in the second instance that do not hold a hearing, the probability of upholding the original judgment is very high. Therefore, the focus of defense lawyers representing criminal second instance cases is primarily to strive for a hearing in the second instance. We can promote the hearing by submitting or applying to retrieve new evidence, applying for re-evaluation or inspection, proactively contacting the second instance judge to explain the need for a hearing, and proposing different defense opinions from those of the first instance defense lawyer, etc. This is to avoid the case being directly upheld.

(See "Several Tips for Promoting a Hearing in the Second Instance")

To avoid the situation where the second instance upholds the original judgment, the defense lawyer in the second instance should focus on the following nine aspects: (1) Whether the facts determined by the first-instance judgment are clear, and whether the evidence is true and sufficient; (2) Whether the applicable law in the first-instance judgment is correct, and whether the sentencing is appropriate; (3) Whether there are any violations of legal procedures during the investigation, prosecution, review, and first-instance procedures; (4) Whether new facts and evidence are presented in the appeal or appeal; (5) The defendant's statements and defenses; (6) The defense lawyer's opinions and their acceptance; (7) Whether the judgment and ruling of the incidental civil part are legal and appropriate; (8) Whether the handling of the property involved in the case is correct; (9) The opinions discussed by the collegial panel and the trial committee of the first-instance people's court.
 

(See "Key Points of Defense in Criminal Second Instance")

The circumstances under which the second instance sends back for retrial generally include cases that can be sent back for retrial and those that must be sent back for retrial: If the facts of the original judgment are unclear or the evidence is insufficient, the second instance court can clarify the facts and change the judgment according to law, or it can send it back to the original trial court for retrial; if there are major violations of the trial procedure in the first instance court, it falls under the category that must be sent back for retrial.
 

According to Article 238 of the Criminal Procedure Law, the following four types of cases must be sent back for retrial: those that violate the open trial system; those that violate the recusal system; those that deprive or restrict the parties' litigation rights, thus affecting fair trial; and those where the trial organization is illegal.

It is important to note the following three points: After the case is sent back to the original trial court for retrial, a new collegial panel should be formed for the trial; for cases sent back for retrial, the principle of no increased punishment for appeals still applies; appeals and prosecutorial appeals for retrial cases cannot be sent back for retrial again.

According to Articles 252 and 254 of the Criminal Procedure Law, the initiation methods of the trial supervision procedure can be divided into two types: civil petitions and self-correction by functional departments.
 

The subjects of civil appeals, that is, those who have the right to file an appeal request, include three types of people: the parties involved, the legal representatives of the parties, and the close relatives of the parties. According to Article 1045 of the Civil Code, the scope of close relatives includes: spouses, parents, siblings, grandparents, maternal grandparents, grandchildren, and great-grandchildren.

The self-correction of functional departments is mainly the responsibility of the courts and the procuratorates. Article 254 states: The presidents of courts at all levels, with the consent of the judicial committee, the Supreme Court and higher courts, the Supreme Procuratorate and higher procuratorates, have the right to initiate judicial supervision procedures for judgments and rulings that have already taken legal effect.

The appeal requests from the parties and their legal representatives or close relatives can be submitted to either the court or the procuratorate.
 

Article 453 of the Supreme Court's "Interpretation of the Criminal Procedure Law" states: Appeals are handled by the court of final judgment. This means that the court responsible for reviewing the appeal application is the one that issued the legally effective document: if the case has been processed by a second trial or retrial, that court is responsible for reviewing the appeal; if there has been no effective appeal or protest after the first trial, the first trial court is responsible for handling it. (For relevant regulations on appeals and protests, see "Comprehensive Interpretation of the Initiation Methods of Criminal Second Trial Procedures")

The Supreme Procuratorate's 2012 "Regulations on Handling Appeals Against Effective Criminal Judgments of the People's Court" clearly states: Appeals to the People's Procuratorate are accepted by the same-level People's Procuratorate of the People's Court that issued the effective judgment or ruling. If an appeal is made directly to a higher procuratorate, the higher procuratorate may assign it to the same-level procuratorate of the court that issued the effective legal document for acceptance, or it may accept it directly.

After review by the same-level procuratorate, if it is deemed necessary to file a protest, it shall be discussed and decided by the procuratorial committee, and a request shall be made to the higher procuratorate to file a protest.

The Supreme Court's 2002 "Opinions on Regulating the Filing of Re-examinations by People's Courts (Trial Implementation)" states: The appellant has the right to file an appeal within 2 years after the execution of the sentence.
 

In the following circumstances, the appeal period may exceed 2 years: if it may declare the original defendant not guilty; if an appeal was filed within 2 years but the court did not accept it; in cases that are difficult, complex, or significant.

Article 457 of the Supreme Court's "Interpretation of the Criminal Procedure Law" states: The appeal review should be decided within 3 months, and no later than 6 months. The review period may be extended for difficult, complex, significant cases, or other special reasons.

Article 253 of the Criminal Procedure Law stipulates five circumstances: there is new evidence proving that the facts determined by the original judgment or ruling are indeed erroneous, which may affect the conviction and sentencing; the evidence used for conviction and sentencing is not accurate or sufficient and should be excluded by law, or there are contradictions between the main evidence proving the facts of the case; the original judgment or ruling has errors in the application of the law; violations of legal procedures that may affect a fair trial; the trial personnel engaged in corruption, bribery, favoritism, or illegal judgment behavior during the trial of the case.
 

The Supreme Court's "Interpretation of the Criminal Procedure Law" refines this into 10 items: (1) There is new evidence proving that the facts determined by the original judgment or ruling are indeed erroneous, which may affect the conviction and sentencing; (2) The evidence used for conviction and sentencing is not accurate or sufficient and should be excluded by law; (3) There are contradictions between the main evidence proving the facts of the case; (4) The main factual basis has been legally changed or revoked; (5) There is an error in the determination of the crime; (6) The sentencing is obviously inappropriate; (7) There is a clear error in the handling of illegal gains or other property involved in the case; (8) Violations of legal provisions regarding retroactivity; (9) Violations of statutory litigation procedures that may affect fair judgment; (10) The trial personnel engaged in corruption, bribery, favoritism, or illegal judgment behavior during the trial of the case.

The aforementioned 10 items should be the focus of efforts for the appellant and their legal representatives to strive for the filing of appeals and the success of re-examinations.

The difficulty of appeal cases far exceeds the imagination of the parties involved. It is wise to entrust a professional criminal defense lawyer to represent the appeal matters. The scope of services for lawyers representing appeals includes but is not limited to the following matters as per (Fa Fa 2017-8) "Opinions on Gradually Implementing the Lawyer Representation System for Appeals": listening to the appellant's demands, inquiring about the case situation, providing legal consultation; for those that do not meet the filing conditions of the People's Court or the People's Procuratorate after review, providing legal clarification; for those that meet the filing conditions of the People's Court or the People's Procuratorate after review, drafting legal documents for the appellant, accepting the entrustment to file an appeal; for those that may meet the conditions for legal aid after review, assisting in applying for legal aid; after accepting the entrustment, submitting appeal materials, receiving legal documents, and representing in hearings, inquiries, interrogations, and court sessions.
 

The issue of difficulty in accessing and copying case materials for lawyers representing appeal cases still requires the continued attention and advocacy of the legal community.

Article 459 of the "Interpretation" states: If the appellant is dissatisfied with the rejection of the appeal, they may appeal to the higher-level People's Court.
 

If the original judgment is maintained according to the judicial supervision procedure, or if the appeal application is rejected after review by two levels of courts according to the judicial supervision procedure, the appeal will no longer be accepted.