Rehearing civil cases of appeal costs burden

September 7, 2005.

The court of second instance in accordance with the "Civil Procedure Law" article 153rd (three), (four) the provisions of item, rescind the original judgment, remanded by the court for retrial. The trial court for retrial, often meet the relevant parties to appeal the case acceptance fee how to share, the Supreme People's court, although this problem in legal fees "seventeenth people's court fees" to "the people's Court of second instance retrial cases, appeals to pay fee, non refundable; retrial and appeal, instead of paying the fee for accepting the case." Provisions, but still have the following three problems that need to be discussed.

First, if one of the parties to appeal, the second instance court remanded retrial verdict should be clear by the court according to the review results determine the burden of litigation costs of second instance. There are two different views: a view of the instance level constraints, the court of first instance can not to the second court costs burden to handle, only need to make changes to the original trial litigation fee burden in the retrial verdict. According to another view, the court of second instance in the retrial ruling by the court according to a clear result to determine the appeal costs burden, is authorized the court of first instance decision appeal costs burden. The reason is that, the second instance court has made substantive hearing, but has not yet made a final decision on the dispute between the parties of civil entity, can not determine the appeal costs in retrial ruling burden. In order to avoid the parties to appeal costs burden not clear problem retrial verdict after the judgment, the court of the second instance trial court decision in re authorized referee appeal costs burden, have legal basis. The Supreme People's Court on April 4, 1985 method (Research) complex [1985]21 "reply" about civil appeal cases handled problems fee second of the relevant provisions, namely the first, people's Court of second instance court fees by the people's Court of retrial, according to the results, determine the burden of litigation costs, and to stated in legal documents.

Second, the plaintiffs appealed by the court of second instance after remand, and applies for the withdrawal of the suit in the review period, the second instance procedure fees to burden problem. During the retrial withdrawal, with the permission of the court, that the plaintiff and the defendant gave up to solve the disputes through litigation, therefore appeal filed the appeal by the burden of costs. It is, if the plaintiff only withdraw part of the claim in the review period, they can not be regarded as withdrawal, should be regarded as the plaintiff to give up part of the claim, because changing the claim amount and reduce the request, the court according to the original claim amount charged case acceptance fee shall not be refunded, by the plaintiff bear the risk liability litigation improper, which reduce litigation costs, the second part of the claim should not be returned to the plaintiff.

Third, the defendant appealed by the court of second instance retrial, the retrial procedure of second instance in during the withdrawal, the litigation costs to burden problem. Opinions on this issue in three ways: a suggestion that the defendant burden. The reason is the second instance procedure by the defendant to launch, shall be borne by their appeal costs. The second view by the plaintiffs burden. Because the case is filed by the plaintiff, the defendant to the plaintiff is passive, active end the lawsuit, the plaintiff shall be the burden of a second trial, litigation costs, can be charged by half a second trial, litigation fee. The third view, the plaintiff and the defendant should not burden appeal costs. Because the plaintiff is just a trial program launch, should not bear the costs of appeal and the defendant is the procedure of second instance, the launch, but a retrial is caused by the court of first instance reason, it is not by the defendant appeal costs. I agree with second kinds of opinions about the second costs borne by the claimant's point of view, but do not agree with the appeal of costs by charging. Because seventeenth of the "people's court litigation fee charges" shall be understood to the trial court for retrial cases have been substantial, so no longer return appeal costs, according to this, the appeal filed by the plaintiff or the defendant or the plaintiff in the trial period, the withdrawal of the suit, the court of second instance shall not refund appeal costs. The court ruled that the trial proceedings shall be marked in fees from the plaintiff to the burden of withdrawal rulings, and the deadline for the plaintiff will be paid by the defendant, the burden of the costs to the defendant's appeal. It must be pointed out that, according to the third kinds of opinions, the second instance procedure fee shall be borne by the court of second instance burden, is not appropriate. Civil procedure of second instance is provided to guarantee the judicial justice, to the parties a maintenance litigation rights and opportunities, retrial is caused by the court of first instance, but remanded just program settings, for instance court for appeal costs, "State Compensation Law" did not have to make provision for the court of second instance shall compensate. So no matter how the parties to appeal after treatment results, the litigation costs shall be borne by the parties burden of second instance.

                                                       Author: (Nanning City Intermediate People's courtJiang Xianzheng.