A trial of the appellant requests to withdraw his appeal judgment shall determine

December 12, 2005.

Between the plaintiff and the defendant, the contract dispute, the court of first instance made in May 26, 2004 against the plaintiff, in June 1st and served to the original, the defendant verdict. The verdict of the first trial in the same month, 12 days to appeal. The plaintiff in the trial period to the trial court to apply for the withdrawal of the appeal, the court of second instance in August of the same year of 12 the granting of the withdrawal of Appeal ruling, and 15 in the same month the ruling to the original, the defendant served.

How to determine the case judgement effect of time, there are three different views: the first view should be sent to the original judgment, the time is June 1, 2004 for the effect of time; the second view should be based on a judgment appeal expiration date is June 16, 2004 for the effect of time; the third view should be in the second ruling is served to the original, the defendant in August 15, 2004 as the effective time of time.

I agree with the third view. According to the Supreme People's Court law on July 31, 1998 release [1998]19 "on the second instance court approved by the" automatic withdrawal of appeal cases handled by the court of first instance to retrial problems, set forth in the replied: "in civil litigation, appeal people not to pre pay court costs, or by summons without justifiable reasons refuses to appear in court, the people's Court of second instance ruled by automatic withdrawal of appeal after the first trial, second instance ruled that since the date of entry into force." The reply is "not for the appeal fee" or "the appellant refused to unwarranted" two by automatic withdrawal determined explanations appeal cases when a judgment of the time effect, although not enumerate the appellant requests to withdraw his appeal case, but not to exclude the cases. In the case of a judgment of effect of time should also be self ruling of the second instance of the date of entry into force of books.

How to understand the approval of "second order determined,", there are two different views: one view should be granted to withdraw his appeal to the court of the second instance verdict, ruling of the second instance determined, as in this case, August 12, 2004. According to another view should be in the order of second instance by the parties, the ruling of the second instance determined, as in this case, August 15, 2004. I agree with the second opinion, the reason has two aspects: on the one hand, the Civil referee copy clerk only served to the parties, the talent know adjudicative document content, just know civil litigation right stop, end time, and according to the judgment of the two aspects of the substantive and procedural rights, to exercise their rights and obligations to fulfill the obligation. On the other hand, the service is the premise of civil jurisdiction instruments in force. "Civil Procedure Law" to the procedure of second instance is not clearly stipulated time determine the second instance of civil judgement document, but the law 157th stipulation: "the people's Court of second instance trial of a case on appeal, except in accordance with the provisions of this chapter, apply the ordinary procedure of first instance." That is to say, the second instance of civil jurisdiction instruments to determine the effect of time, for instance judgment effective legal provisions to determine the time. And 141st of the law in the procedure of first instance chapters in the article: "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." The 147th article of the law: "if a party refuses to accept the judgment of first instance of a local people's court, have the right to served in the verdict within 15 days from the date of a higher people's Court of appeal. If a party refuses to accept the first instance of local people's court within 10 days, have the right to a higher people's Court of appeal from the receipt of the order book." According to the above provisions, the first instance judgment is served to the parties after the start date to appeal, the appeal after the expiration of the term of the parties did not appeal, the first instance judgment began to take effect, therefore, the first instance judgment is served to the parties, the parties appeal appeal over time is not an instance of civil judgment document, effect of time is the expiration date, and not the service of documents to the parties of the day. So the first opinion is a judgment of effect of time to a judgment to determine the delivery to the parties, not in conformity with the law. Because of the second instance judgment does not exist the appeal period, so the time to determine the second instance judgment should be based on the second instance of civil jurisdiction instruments served to the parties as of the date.

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