Usually the civil cases in the final judgment or order is obtained, which represents the case facts and the applicable laws have been identified to determine. But at the same time to ways of legal relief parties, that is to say, if the parties can provide sufficient evidence to prove that the proof and application of fact and mistake of law, the court shall review.

This paper discusses the civil case retrial petition the conditions and procedures.

A,    The party applying retrial conditions

(a)The parties concerned may apply for a retrial

The plaintiffs in the case, the defendant, third people have the right to apply for a retrial. In addition to the parties, the court has started two ways, one is from all levels of court to trial supervision Committee for discussion and decision; two is the supervision of the superior court to the lower court[1].

Two.Object may apply for a retrial

Object to apply for retrial shall be legally effective judgments, rulings and mediation[②]. But there are two cases, one is the dissolution of the marriage decision, but the property of the decision may apply for a retrial; another is in accordance with the special program (procedure, the procedure of public summons, bankrupt procedure in cases tried in accordance with the procedure for trial supervision and after hearing upheld case) case closed[③]. The two case shall apply for a retrial.[④]

Three.You can apply for a retrial of the case

1,Legal retrial case

1.  Legal reasons

The application of the parties in accordance with one of the following thirteen kinds of circumstances, the people's court shall review:

A.              There is new evidence, to reverse the original judgment, ruling;

B.The original decision, ruled that the basic facts of the lack of evidence;

C.              The original judgment, ruling the main evidence for ascertaining the facts is false;

D.              The original judgment, ruling the main evidence for ascertaining the facts without quality certificates;

E.The evidence necessary for the trial of the case, the parties because of objective reasons can not be collected, the people's court for a written investigation and collection, the people's court has not collected;

F.The original judgment, that there is some error in the application of the law;

G.              In violation of the provisions of laws, jurisdiction in error;

H.              The judicial personnel composition of judicial organization of illegal or should be avoided in accordance with the law without avoidance;

I.    Person with no legal capacity without statutory agent or litigation shall be parties, because you cannot blame themselves or their agents ad litem reasons, did not participate in the proceedings;

J.   In violation of the provisions of laws, depriving party debate right;

K.              Without the subpoena, the default judgment;

L.The original decision, ruled that the omission or beyond the litigation request;

M.             According to legal documents in order to make the original decision, ruling is revoked or changed.[5]

In addition, there are two kinds of retrial, namely the violation of legal procedure may affect the correct adjudication, ruling and judicial personnel duty crime in the trial of the case[⑥].

2.  The classification of the legal subject

The above fifteen cases, divided into four major categories:

First, (ATo ()E) all belong to the lawsuit evidence kind of matter;

Second, (FThe case law applicable) belongs to the class of reason;

Third, (GTo ()K) and belongs to the procedure for class;

Fourth, (L()M) and exceptions to other categories of reasons.

2,Specific analysis of the legal subject

1.  Evidence for class

Evidence in Litigation Retrial subject, make a judgment on the basis of the evidence is lacking and forgery, without quality certificates and the court not to take, thus affecting the decision is correct and false evidence, these are evidence of obvious defects. That new evidence that there is a certain conditions, not unused in the original trial evidence is new evidence, the following four conditions should be recognized as new evidence:

A.              The end of the trial has been the objective existence of newly discovered after the trial evidence;

B.Have found the end of the trial, but because of objective reasons can not be achieved or not provided within the prescribed time limit, the evidence;

C.              The trial after the trial originally made the appraisal conclusion, records of inspection re identification, inspection, reverse the original evidence.

D.              The main parties in the evidence provided in the trial, no cross examination, authentication, but enough to reverse the original judgment, ruling, it shall be regarded as new evidence[⑦].

2.  Class reason law

The correct handling of erroneous law application will directly lead to the following situations can be considered the case, "the law applicable to an error":

A.              The law and the nature of the case is obviously inconsistent;

B.To determine the civil liability is clearly contrary to the parties or legal provisions;

C.              Application has failed or not yet implemented law;

D.              Violate the law retroactive provisions;

E.In violation of the law applicable rules;

F.A clear violation of the legislative intent of the.[⑧]

3,Mediation book application for retrial cases

The parties to a legally effective mediation book, only two kinds of circumstances, can apply for retrial.[⑨]

1.  Present evidence that the mediation violates the principle of voluntariness;

2.  Provides evidence proving that the contents of the agreement in violation of the law.

Four.Summary

To sum up, the party applying retrial entity conditions:1.The party is the case the plaintiff, the defendant, third; 2. Object to apply for a retrial is already has the legal effect and to put forward application for retrial judgment, ruling, mediation book (3) application for retrial must comply with one of the fifteen legal situation of the above, one or two mediation retrial case.

Two,    If the parties apply for retrial

(a)The parties apply for a retrial

1,Period

The party applying retrial, should be in the judgment, ruling made two years after taking legal effect; two years later, according to legal instruments to make the original decision, ruling is revoked or changed, and found that the judges who take bribes, play favouritism and commit irregularities in the trial of the case, the law referee, self aware or should be made within three months know the day[⑩].

2,The jurisdiction of the court

The parties to a legally effective judgment, ruling, mediation, think is wrong, may apply to a people's court at a higher level for retrial.

3,The submitted materials

1.  The retrial petition;

2.  The petitioner is a natural person, should submit the photocopies of identity; apply for retrial is a legal person or other organization, should submit the copy of the business license, the legal representative or principal responsible person certificate of identity. Commissioned on behalf of the application, shall submit the power of attorney and the identity certification of the agent;

3.  The original judgment shall apply for a retrial, or the certified copy of judgment system; second, the retrial judgment, should be submitted at the same time trial, second instance judgment original, or the certified copy;

4.  The main evidence in the proceedings to submit a copy of the;

5.  Support forThe retrial reasonAnd the retrial lawsuit evidence.

6.  Material list two copies;

7.  Confirmation of the address for service.

Two.Accept the application for retrial

In order to enhance the combat application for retrial of the civil procedure law, "" the people's court shall be the date of the retrial petition duplicate copy of the retrial petition to the other party within five days after receiving the. The other party shall apply for retrial to submit written opinions within fifteen days from the date of receipt of the copy of; not to submit written opinions, does not affect the review by the people's court. The people's court may require the applicant and the opposing party to supplement relevant materials, inquire about relevant matters[11]. This provision makes the application for retrial review more comprehensively and accurately, is also in line with the people's court neutrality.

Three.Retrial application review

1,The review period

The people's court shall review within three months from receipt of the application for retrial[12]. If extension is needed, approved by the president of the court.

2,Review of the way

The people's court accepts the application for retrial cases, shall form a collegial panel to review[13]. Following are the specific way the review by the people's court for retrial case[14]:

1.  Examine the parties submit the retrial petition, written comments and other materials.

2.  Review the files.

The court thinks only review a retrial petition and other materials to make a ruling, shall be submitted to the trial court shall review the file access. The trial court after receiving the letter of certiorari within fifteen days after the submit.

3.  Ask the parties.

The court according to the case to decide whether to ask the parties. The new evidence is enough to reverse the original judgment, ruling by the people's court shall apply for a retrial, ask the party.

4.  Organization of Party of hearing.

The court for retrial cases listed on the following, can organize the hearing:

A.              There is new evidence, to reverse the original judgment, the original judgment, ruling that; basic facts of the lack of evidence;

B.The original judgment, ruling the main evidence for ascertaining the facts is false;

C.              The original judgment, that there is some error in the application of the law.

Four.Court decisions

1,Retrial

During the review period, the people's court according to the results of the review, in accordance with the procedure for trial supervision of cases decided retrial should be filed, and rule to suspend the execution of the original judgment. The ruling by the president signed, sealed by the people's court.

2,Reject the application

That do not comply with the above legal retrial cases, the notice of rejection of the application.

Three,    The relevant legal provisions of the party applying retrial

The main legal basis of the party applying retrial is the "PRC Civil Procedure Law" (hereinafter referred to as the Civil Procedure Law) article178Through article185The Supreme Court, and the relevant judicial interpretations. Among them, the following provisions:

(a)"Civil Procedure Law"

Article 178th The parties to a legally effective judgment, ruling, that is wrong, may apply to a people's court at a higher level for retrial, but it does not stop the execution of the ruling, decision.

Article 179th The application of the parties in accordance with the following circumstances, the people's court shall review:

(a) there is new evidence, to reverse the original judgment, ruling;

(two) the original decision, ruled that the basic facts of the lack of evidence;

(three) the original judgment, ruling the main evidence for ascertaining the facts is false;

(four) the original judgment, ruling the main evidence for ascertaining the facts without quality certificates;

(five) the evidence necessary for the trial of the case, the parties because of objective reasons can not be collected, the people's court for a written investigation and collection, the people's court has not collected;

(six) the original judgment, that there is some error in the application of the law;

(seven) in violation of the provisions of laws, jurisdiction in error;

(eight) the judicial officers. Judicial organization of illegal or should be avoided in accordance with the law without avoidance;

(nine) without the capacity for action without statutory agent or litigation shall be parties, because you cannot blame themselves or their agents ad litem reasons, did not participate in the proceedings;

(ten) in violation of the provisions of laws, depriving party debate right;

(eleven) has not been served with a summons, judgment by default;

(twelve) the original decision, ruled that the omission or beyond the litigation request;

(thirteen) according to legal instruments to make the original decision, ruled that the revocation or modification.

Article 180th The parties shall submit the application for retrial, retrial petition and other materials. The people's court received the retrial petition, duplicate copy of the retrial petition to the other party within five days. The other party shall apply for retrial to submit written opinions within fifteen days from the date of receipt of the copy of; not to submit written opinions, does not affect the review by the people's court. The people's court may require the applicant and the opposing party to supplement relevant materials, inquire about relevant matters.

Article 181st The people's court shall review within three months from receipt of the application for retrial, in accordance with the law the 179th regulation circumstances, ruling retrial; do not conform to the provisions of article 179th, the court rejected the application. If extension is needed, approved by the president of the court.

The application of a party concerned, ruling retrial cases tried by a people's court above the intermediate people's court. The Supreme People's court, the higher people's Court of retrial case, the court retrial or make other people's court for retrial, the people's Court of retrial can also cross.

Article 182nd The parties to a legally effective mediation book, provides evidence proving that the mediation violates the principle of voluntariness or that the content of the mediation agreement in violation of law, may apply for retrial. The people's court to review the case, shall the retrial.

Article 184th The party applying retrial, should be in the judgment, ruling made two years after taking legal effect; two years later, according to legal instruments to make the original decision, ruling is revoked or changed, and found that the judges who take bribes, play favouritism and commit irregularities in the trial of the case, the law referee, self aware or should be put forward three months within days of that.

Article 185th In accordance with the procedure for trial supervision retrial cases, order to suspend the execution of the original judgment. Ruled by the president signed, sealed by the people's court.

Two.Interpretation of the Supreme People's Court of some issues concerning the application of the "PRC Civil Procedure Law" the procedure for trial supervision

Article tenth The petitioner to submit the following one of the evidence, the people's court can be identified as the 179th civil procedure law paragraph (a) rule of "new evidence":

(a) the end of the trial has been the objective existence of newly discovered after the trial evidence;

(two) have found that the end of the trial, but because of objective reasons can not be achieved or not provided within the prescribed time limit, the evidence;

(three) the trial after the trial originally made the appraisal conclusion, records of inspection re identification, inspection, reverse the original evidence.

The main parties in the evidence provided in the trial, no cross examination, authentication, but enough to reverse the original judgment, ruling, it shall be regarded as new evidence.

Article thirteenth The original decision, ruled that the applicable laws, regulations or judicial interpretation in any of the following circumstances, the people's court shall be deemed as the 179th civil law article (six) provision of the law applicable to the wrong "":

(a) and the nature of the case law applicable is inconsistent;

(two) to determine the civil liability in clear violation of the parties or legal provisions;

(three) have failed or not law;

(four) in violation of the law retroactive provisions;

(five) in violation of the law applicable rules;

(six) a clear violation of the legislative intent of the.

Three."Opinions" people v.

Article207Article In accordance with the procedure, the procedure of public summons, bankrupt procedure to try a case and in accordance with the procedure for trial supervision upheld the case after hearing, the parties shall apply for a retrial.

Four."Several opinions on accepting the highest law review of civil retrial cases"

Article tenth The people's court accepts the application for retrial cases, shall form a collegial panel to review.

Article thirteenth the review by the people's court for retrial cases, take the following forms:

    (a) review submitted by the parties concerned, the retrial petition, written comments and other materials;

    (two) review the files;

    (three) ask the parties;

    (four) the hearing organization.

 Article sixteenth a people's court certiorari review, the court should be in receipt of the letter of certiorari15Days to submit the dossier.

    The scope of the volumes obtained can be decided according to the review work. When necessary, to ensure true premise, may request the court to fax, copy, electronic document, timely submit the relevant files and materials.

Article twenty-first the petitioner been served with a summons, unwarranted refusal to participate in the inquiry, the hearing without permission or quit, ruling according to withdraw the application for retrial process. The respondent and other parties involved in the inquiry, not to participate in the hearing without permission or quit, give up as in the inquiry, in the process of hearing statements on the right.