The problem

    A party is not satisfied with the judgment of the grassroots people's court made the decision, appeal to the intermediate people's court, but the party did not receive "second case acceptance fee payment notice" within seven days to pay the fees for accepting the case, the intermediate people's court has not found this problem. The appellee's agent in the court before checking the file, found the problem. The second instance trial as scheduled, the appellee's agents appeal in the court of appeal can not be established in reply, request the court rejected the appeal, upheld the. Ask: the court of second instance should be how to deal with the appellant the so-called appeal?

Differences

    Processing case, there are several views:

    First, the court of second instance shall dismiss the appeal decision, upheld the. In this view, the party's appeal, the court of second instance shall not accept the. But the second instance court has accepted the case, and has been hearing, and the appellee has been involved in reply, because the human behavior lead to loss of the litigation rights, the court of second instance shall make a rejected the appeal, upheld the original verdict on the basis of facts.

    Second, we should appeal by automatic withdrawal of treatment. In this view, the Appellant was not in court within the time limit specified by the second case acceptance fee to pay, in violation of the court granted the legal obligations, should bear the legal consequences of appeal can not be established, shall be automatically withdrawn appeal.

    Third, the court of second instance shall reject it, according to a judgment enforcement. In this view, beyond the period of appeal or not within a specified time limit to pay the fees for accepting the case in second instance, appeal can not be established, a judgment, ruling has already become legally effective, should reject it, according to a judgment enforcement.

    Fourth, it should be ruled not to appeal, in a judgment enforcement. In this view, more than an appeal or not within a specified time limit to pay the fees for accepting the case of second instance, the court should not set up, are not allowed to appeal appeal, according to a judgment enforcement.

    Fifth, should be ruled inadmissible, according to a judgment enforcement. In this view, more than an appeal or not within a specified time limit to pay the fees for accepting the case of second instance, the appeal can not be established, the judgment, ruling becomes legally effective, it should be ruled inadmissible.

Lawyers say

    The law in favor of the third viewpoint. The lawyer thinks, to solve this problem, we should first figure out the following questions: what is a legally effective judgment, ruling (or say, how to affirm the legally effective judgment, ruling)? What is the verdict of the scope of application?

    Firstly, how to identify the judgment, ruling has already become legally effective, the civil procedure law stipulates. "PRC Civil Procedure Law" the 155th stipulation: "the Supreme People's court judgments and rulings, and shall not exceed the appeal or that have not been appealed against the judgment or ruling, is a legally effective judgment, ruling." A careful analysis of this article, first of all, the judgment, ruling of the res judicata is affected by the trial, the court of Final Appeal (in China for the Supreme People's court) of the judgment or ruling, has the ability to determine the final, not allowed to appeal; secondly, decision, ruled by a certain line of litigant is determined, and the final the effectiveness of such as itself, there can be no appeal judgment, ruling or judgment, ruling, after receiving the appeal after extended, lead to judgment, ruling becomes legally effective.

    Secondly, according to the relevant provisions of litigation fees "to pay the way", appeal and just submit appeal, the relevant provisions should also be paid according to the litigation costs to pay the fees for accepting the case of second instance. "The litigation costs to pay the way" the twenty-second provisions of the second paragraph: "the appeal case acceptance fee by the appellant submitted to the people's court when the appeal. Both parties appealed in advance, respectively. The appellant in the appeal period has not paid the cost of litigation, the people's court shall notify the7Days in advance." The provisions of paragraph fourth: "if the party concerned refuses to pay the litigation costs and did not put forward to apply for judicial aid, or for approval of judicial relief is not, in the people's court within a specified period of time not to pay the cost of litigation, handled by the people's court in accordance with the relevant provisions." Thus, the parties appeal, except for the litigation costs to slow relief, should pay the fees for accepting the case or the appeal fee in accordance with the court within the period specified, a prerequisite for this case is accepted by the people's court. If the parties do not pay the fee for accepting the case or the cost of appeal, or not paying the fees for accepting the case or the cost of appeal, apply for deferment, reduce or exempt and not approved without pay or not pay in full, the people's court shall not accept the case on file, do not enter the proceedings.

    Therefore, the appellant fails to "second case acceptance fee payment notice" within the time limit set to pay legal fees, itself is idle to fulfill legal obligations, the appeal is not accepted as the court of second instance, the case has not yet assigned to the tribunal, the court of second instance shall be ruled by automatic withdrawal of appeal. If the case has been assigned to the tribunal, the court of second instance shall not hearing. If is decision, ruled that the legal effect has been found in the hearing process, the situation could no longer appeal. The lawyer's view is, for not to apply for legal fees to slow relief and not pay the cost of appeal and the court of second instance court, should the court rejected the appeal, at the same time the parties to the case acceptance fee refund has been charged, and inform the appellant in accordance with the relevant provisions of the retrial retrial application or appeal. The court rejected the appeal,Contains three meanings: first, the parties have the right of appeal; two, with the court rejected, because the parties did not appeal the appeal period, leading to appeal is not established, a trial takes legal effect; three, to have effective judgment, the court of second instance can only inform the parties to appeal or retrial, not to make judgments. Otherwise, the future by the parties or apply for a retrial and appeal court judgment and change, will have the obvious contradiction between the two judgments.

Other opinions

    For the first view, the lawyer thought the most undesirable. Do not pay the fees for accepting the case, the procedure is not complete, the case can not enter the procedure, resulting in the original judgment, ruling becomes legally effective. Because the judgment, ruling has been adjudged force, the court cannot the case into the entity processing, not to dismiss the appeal, upheld the entity processing.

    For the second view, this way is suitable for processing has not been assigned to the tribunal, without hearing the case fails to pay, but because the case has been accepted, the actual trial, this approach was not.

   For the fourth view, the lawyer thought this view is short of legal basis. "PRC Civil Procedure Law" the 154th stipulation: "the ruling applies to the following areas: (a) is inadmissible; (two) has any objection to the jurisdiction of the court; (three); (four) preservation and advance execution; (five) approval or disapproval of the withdrawal of the suit; (six) suspension or termination of legal proceedings; (seven) correction of errata in the judgment; (eight) suspension or termination of execution; (nine) the cancellation or non enforcement of arbitral awards; (ten) not enforcing notary public debt instruments enforceability granted;(Eleven) other determinations resolving matters. In the first to third ruling, can appeal." Therefore, the law does not clearly whether there is "not allowed to appeal the ruling," other needs at the same time the article said the ruling issues include whether the second instance does not pay the fees for accepting the case that case, could not be determined. But it needs to be pointed out is, is the rights of the parties to appeal, only for instance determined not the judgment, ruling (such as the Supreme People's court since the beginnings of a legally effective judgment, ruling or decision) according to the judgment, ruling nature of judgment, ruling and no appeal (such as service of self legally effective preservation ruling), there should be no other "not allowed to appeal".

    For the fifth view, the lawyers said the ruling should only be Lianting in case review found that should not be placed on file, to make inadmissible decision. The trial division, which has been accepted and heard, can't go back on the court which made inadmissible decision.

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