Several opinions on remand standard civil case revision and

 

(2010Years8Month6Shenzhen City Intermediate People's court trial committee of the36Discussion at the meeting by)

 

In order to further standardize city civil court appeal, retrial case trial, unified to remand standards, improve the civil appeal, retrial case trial quality and efficiency, promote the service judgments, safeguard judicial authority, in accordance with the "Civil Procedure Law" and other relevant laws and regulations, judicial interpretation and the provincial court "on the civil cases to and send back the guidance review some problems (for Trial Implementation)", combined with the actual city court trial, the enactment of this opinion.

 

                        A,    Regulations

Article 1  The trial of civil cases of second instance shall follow the law, maintain, careful revision, strictly, strengthen the remand of mediation, the parties take sentence appeal to principles.

The trial of civil retrial cases should be handled correctly, the relationship between error correction in accordance with law and maintain the judgment of res judicata.

Article second  Second, re trial and retrial should be based on facts and law, the organic unification of legal effect and social effect on the referee's.

Article third  Second, the trial of civil retrial cases, should be in the specific appeal, retrial request scope or protest parties request in support a range of relevant facts and the application of law for trial. But except possibly harm the state interests, social public interests and the legitimate rights and interests of others.

Article fourth  The ruling that the facts are not clear or the improper application of the law, can be in the identification of applicable legal facts or corrected, by increasing the sentence or maintaining adjudgment part of the sentence, sentence a mode change part of the remedy, as far as possible not to make major adjustments to the original results.

Article fifth  The court of first instance in the specified without law, regulations and judicial interpretations, cases of similar guidance, and no superior court unified effective judgment and guiding the case, can exercise appropriate discretion.

Article Sixth  Revision of the judgment, the remand rulings (including remand letter) should be fully explained to the retrial reason.

    Article seventh  Second, re trial and retrial, should be based on the views, strictly grasp the hair, change the standard, unified hair, change the scale. Where a major revision and remand the case to be collegial communication with the court or the trial, according to other relevant provisions of the collegial panel "rules" and the approval of the director or Supervisor College newspaper.

 

Two,    In civil cases of second instance judgment

Article eighth         The first instance judgment has one of the following circumstances, rescind the original judgment, the prosecution dismissed:

(a)             Does not belong to the people's court civil lawsuits;

Two.             The law must be pre procedure, not directly to the front court procedural;

Three.             Both parties agreed to by the arbitration (arbitration agreement), in accordance with the law shall be under the jurisdiction of the arbitration agency. But the arbitration (arbitration agreement is invalid except);

Four.             Other shall refuse to accept or reject the prosecution case.

    Article ninth  Adjudication of first instance is the main evidence for the following cases of basic facts, resulting in the referee is obviously inappropriate, the judgment shall be amended according to:

(a)         The subject qualification of party;

Two.         The nature of the case;

Three.         The specific rights and obligations of the parties;

Four.         The parties shall bear civil liability;

Five.         In other cases the basic facts.

Article tenth  Adjudication of first instance is the main basis of fact in any of the following circumstances, leading to a trial judge is obviously inappropriate, the judgment shall be amended according to:

(a)The main evidence is fake;

Two.In another judgment as the basis for a final decision, another referee is revoked or changed;

Three.Made by the arbitration organization for arbitration verdict basis, is revoked or changed;

Four.In order to notarization notarial as verdict basis, notary certificate is revoked or changed;

Five.When a people's court re identification identification identification, identification conclusion made by the Department and the adjudication of first instance is inconsistent, and the adoption of new appraisal conclusion should be based on the rules of evidence;

Six.The other is the main basis of the facts change. In a trial of misconduct Cassia.

Article eleventh  Trial judges apply law to have one of the following circumstances, resulting in the referee is obviously inappropriate, the judgment shall be amended according to:

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

Two.         To determine the civil liability provisions of the parties obviously violates the agreement or law;

Three.         Application has failed or not yet implemented law;

Four.         Violate the law retroactive provisions;

Five.         In violation of the law applicable rules;

Six.         A clear violation of the legislative intent of the.

Article twelfth  A judgment ascertaining the facts wrong or that the facts are not clear and the evidence is insufficient, the second to find out the facts of the case, directly according to appeal; changed, may affect the rights of the parties to litigation, it shall remand.

The first trial while the fact that is not clear and the evidence is insufficient, but according to the actual situation did not ascertain the relevant facts, the court of second instance shall according to the several provisions of the Supreme People's court "about civil action evidence" (hereinafter referred to as the "rules of evidence") distribution of burden of proof, directly related to the facts and to make the decision, and not the facts are not clear, the lack of evidence for rehearing.

Article thirteenth  The first trial did not find out the facts, the court of second instance considers it necessary to identify or re identification, can be directly commissioned identification, and to directly on the basis of ascertaining the facts.

Because of the court of first instance without identification and quasi rehearing of the case, to verify whether there are identification conditions, if changes occur due to objective conditions, do not have the condition of identification, the court of second instance shall not be remanded, but should be based on the "rules of evidence" the allocation of the burden of proof, directly to the case facts and make a decision.

Article fourteenth  Formed in the territory of the people's Republic of evidence fails to perform notarization, authentication or other proof procedures and shown to have significant impact on the facts of the case, the other party shall not be approved, the court of first instance adopted, such as during the trial of second instance can not handle the relevant proof procedures, the evidence shall not be accepted.

Article fifteenth  The parties submit new evidence in the second instance, to overturn the verdict, ruling that the facts, resulting in a trial judge is obviously inappropriate, the judgment shall be amended according to.

The parties in the second instance submit evidence although not belonging to the new evidence, but the parties because of objective reasons failed to provide within the specified time period, and not admitting such evidence may result in improper, it shall be amended according to the law.

Because of one party's fault is not in the first trial procedure and the other party the burden of proof timely, reasonable expenses increased travel, work, appearing in court as a witness, litigation costs, the other party to claim compensation, the people's court may determine the costs borne in proportion, as appropriate, to support; parties request compensation for direct losses of its expanding, can be sued to solve.

Article sixteenth  The party has been approved at the first cross examination of evidence in the procedure of second instance, and denied, such as supporting the denies the claims no new evidence, the evidence is inadequate to determine the decision error trial, the court of second instance shall be upheld.

Article seventeenth  The trial court and the court of first instance of the applicable law inconsistency, the court of second instance shall generally be upheld. Unless the court of the second instance trial judges will be able to identify applicable law is wrong, affecting the results, and revision.

Article eighteenth  A trial judge in ascertaining the facts, applicable law, elaborates the reason is flawed, but the referee was correct, the second referee should be corrected the defect shall be maintained.

Article nineteenth  The following situations as the Supreme People's court "on the application<Civil Procedure Law of the people's Republic of China>The views of a number of issues "article181The provisions of "other serious violation of legal procedure" situation, should the remand:

(a)Service process, there may be deprived of the rights of the parties to litigation;

Two.The replacement of the members of the collegial panel fails to inform the litigants, but the party has made it clear that except for a challenge;

Three.Not to challenge the jurisdiction or avoid the application to handle it according to law or simply to the referee;

Four.Hearing procedure does not comply with the provisions of the law;

Five.The omission to parties, unless the obligee explicitly waives the right to litigate;

Six.Do not give enough parties proof deadline, but the parties for the insufficient part expressly waived except;

Seven.The parties disputed evidence without a quality certificate is used as the basis for decision;

Eight.Summary procedure applies to the trial of the case is transferred to ordinary procedure, not to reopen the decision;

Nine.The omission of the litigant request;

Ten.Apply the ordinary procedure not the collegial panel review is made on the case, or directly to the minority opinions of collegiate bench judgment or verdict, and the collegiate bench, the judicial committee inconsistent decisions.

Article twentieth  A judgment in one to nine conditions listed in article nineteenth, may affect the correct handling of the case, the second instance court on remand, can consult the views of the parties, if the parties expressly indicated is willing to continue the trial court and judgement, can not remand. The existence of the above (ten) circumstances, remand.

Article twenty-first  Must participate in the proceedings the parties did not participate in the proceedings or a judgment omission litigation request in the first instance, the court of second instance may conduct mediation the parties on a voluntary basis, if the mediation fails and no twentieth regulations, remand.

Article twenty-second  The court of first instance is not in accordance with the "rules of evidence" provisions of article thirty-fifth of the parties to inform the parties to interpretation, validity of adjudication of first instance on the nature of legal relations or civil acts that error appeal on the grounds, such as the trial court that the effectiveness of a trial on the nature of legal relations or civil behavior that is wrong, can be corrected in the the second instance judgment, directly to. The first instance court interpretation, the parties do not change the appeal, the court of first instance according to the facts of the case the court rejected the prosecution or judgment rejected the claim, and identify the right, the second instance should be upheld.

Article twenty-third  The court of first instance to exercise discretion to judge if it is not in violation of laws, regulations, judicial interpretation of the principles of amplitude and the law, there is no obvious inappropriate situations, the court of second instance shall be maintained.

Results of a trial court discretion exists different understanding, the court of second instance shall also be maintained in general. But the court of second instance can determine the discretion of the trial judges incorrect except.

 

Three,    The civil retrial cases the referee

Article twenty-fourth  The original trial shall not accept the decision error, second to maintain, retrial shall cancel the original one, the ruling of the second instance, the court of first instance shall accept the instruction.

The original trial the prosecution dismissed ruling error, the second maintenance. Retrial shall cancel the original one, the ruling of the second instance, the court of first instance to hear the instruction.

The trial has made substantive judgment, the second instance verdict revoked, the court rejected the prosecution mistake, retrial may revoke the court ruling in accordance with the law enforcement and judgment.

Article twenty-fifth  In accordance with the procedure of first instance and the retrial, the trial the plaintiff applies for the withdrawal of prosecution, it shall be ordered by the court. Ruling permitted, it shall also rescind the original judgment, ruling, mediation.

Article twenty-sixth  The procedure of second instance in the retrial, found the original judgment error of fact or that the facts are not clear, and shall be amended after ascertaining the facts. But the trial court to ascertain the facts, to resolve disputes, it may rescind the original judgment, the remand;

The omission of the program must be parties and unable to reach a mediation agreement, and other violations of legal procedures should not be in the retrial procedure to make a direct physical treatment, shall rescind the original judgment, the remand;

The retrial ruled that the revocation of the original sentence, after remand, the increased litigation request, the retrial court should be treated in accordance with the provisions of the civil procedure law 126th.

Article twenty-seventh  The trial of civil retrial cases, with one of the following cases, ruling the termination of retrial procedure:

(a) the retrial applicant (natural person) after death, no heir, or the heir waives the right to litigate;

(two) legal person or any other organization applies for retrial is revoked or cancelled in accordance with the law, not the rights and obligations of successors, or the rights and obligations of successor waives the right to litigate;

(three) by the petitioner (natural person) death, no heritage, nor shall bear the obligation of the people;

(four) is the application for retrial is a legal person or any other organization, no property is revoked or cancelled, in accordance with the law, nor the obligations of people;

(five) the parties reach a settlement agreement, and has been performed;

(six) the application for retrial parties after the subpoena, refuses to appear in court or midway without permission by the court court;

(seven) the applicant notified by the retrial retrial case litigation fee, pay without justified reasons;

The people's Procuratorate retrial cases, apply for protest parties have the provisions of the preceding paragraph, and does not damage the interests of the state, social public interests and the interests of third parties, the retrial court shall render a ruling to terminate the retrial procedure; the people's Procuratorate shall withdraw the protest, grant.

The end of the retrial procedure, resume the execution of the original judgment.

Article twenty-eighth  The court case closed through mediation ruling retrial, the trial found that the petitioner's mediation violates the principle of voluntariness reasons not established, and the content of the mediation agreement is not in violation of mandatory provisions of the law, the court shall apply for retrial, and recover the original execution of the conciliation statement.

The court of retrial that the mediation violates the voluntary, legal principle, should the decision to withdraw the original mediation, and the applicant for retrial litigation request judgment according to law.

Article twenty-ninth  For an outsider to apply to the people's court for retrial, the court heard that the case should be a necessary joint action by the parties, in the procedure of first instance trial, the parties should be appended, make a new judgment; in accordance with the procedure of second instance trial, after mediation fails to reach agreement, shall be rescinded, back a retrial, the retrial should be appended to the parties involved in the case.

Article thirtieth  In accordance with the procedure of second instance court retrial, retrial procedure is not specified, the applicability of this opinion about procedure of second instance shall.

 

Four, other provisions

Article thirty-first  Second, the original sentence commuted retrial, we should refer to the procedure law, the relevant provisions of the substantive law should also refer to the original reference method; the wrong, correct, should be the second retrial jurisdiction, citing legal right; retrial ruling provision refers only to the procedural law.

Article thirty-second  The original judgment sentence, expressed sequence judgements for maintenance, revocation, to.

 

Five, annex

Article thirty-third  The comments by the court's judicial committee is responsible for the interpretation of. The observations such as conflict with the relevant provisions of the judicial interpretation or superior court phase, the applicable provisions of the judicial interpretation or superior court.

Article thirty-fourth  The views of the retrial regulations, can be in accordance with the use of the grass-roots court retrial cases.

Article thirty-fifth  The views of the issued date.