First, does the procuratorate need to hire a lawyer to protest?
1, the procuratorate can ask a lawyer to protest, but there is no need to ask. If you feel that you are inexperienced in litigation, you can ask a lawyer to help you better safeguard your rights and interests. In the protest of the procedure of second instance, only the local people's procuratorate at the same level has the right to protest against the judgment or ruling of first instance that has not yet taken legal effect.
2. Legal basis:
Article 228 of the Criminal Procedure Law of People's Republic of China (PRC) stipulates that local people's procuratorates at all levels shall lodge a protest with the people's court at the next higher level if they think that the judgment or ruling of the people's court at the same level is indeed wrong.
Article 229 of the Criminal Procedure Law of People's Republic of China (PRC) stipulates that if the victim and his legal representative refuse to accept the judgment of first instance of the local people's courts at all levels, they have the right to request the people's procuratorate to lodge a protest within five days after receiving the judgment. After receiving the request of the victim and his legal representative, the people's procuratorate shall make a decision on whether to protest within five days and reply to the request.
Second, what is the difference between the protest in the second instance and the protest in the retrial?
1, the object of protest is different. The object of protest in the second instance is the first-instance judgment or ruling of the local people's courts at all levels that has not yet taken legal effect; The object of retrial protest is the legally effective judgment and ruling.
2. The right to protest is different. Except the Supreme People's Procuratorate, the people's procuratorate at any level has the right to lodge a protest of second instance against the judgment or ruling of the people's court at the same level. Except that the Supreme People's Procuratorate has the right to lodge a retrial protest against the legally effective judgment or ruling of the Supreme People's Court at the same level, other people's procuratorates at all levels can only lodge a retrial protest against the legally effective judgment or ruling of the lower people's court. It can be seen that the grass-roots people's procuratorate can only lodge a protest in the second instance and has no right to lodge a retrial protest; The Supreme People's Procuratorate can only lodge a retrial protest, but has no right to lodge a second-instance protest.
3. The judicial organs that accept the protest are different. The people's court at the next higher level of the people's procuratorate accepts the protest of the second instance; The person who accepts the retrial protest is the people's court at the same level of the people's procuratorate who filed the protest.
4. The protest period is different. The second-instance protest must be filed within the statutory time limit, while the law does not stipulate the time limit for retrial protest.
5. The effect of protest is different. Protest in the second instance will prevent the judgment and ruling in the first instance from taking legal effect; The retrial protest does not cause the people's court to stop the execution of the original judgment or ruling during the retrial according to the trial supervision procedure.
6. So everyone should defend their rights in time. Protest is a means for them to defend their rights after the judgment takes effect, and some unfavorable things may happen when the judgment takes effect. Therefore, it is best for everyone to appeal to the court before the judgment or ruling takes effect, so as to better safeguard rights.
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