(1) A collegial panel shall be formed separately for retrial. Members of the collegial panel that originally tried the case should withdraw. (2) If the retrial case was originally a case of first instance, it shall be tried in accordance with the procedure of first instance, and the judgment or ruling made may be appealed or protested; A case of second instance shall be tried in accordance with the procedure of second instance, and the judgment or ruling made is final. The arraignment refers to the procedure that the Supreme People's Court directly retrieves the case files of the original trial and forms a collegial panel to hear the case after discovering that there are errors in the legally effective judgments and rulings of the people's courts at all levels and the people's courts at higher levels, or after accepting the retrial protest of the people's procuratorate at the same level. A case submitted for trial by a people's court at a higher level in accordance with the procedure of trial supervision shall be tried in accordance with the procedure of second instance, and the judgment or ruling made shall be final.
(two) cases that are tried in court, not in court, and not aggravated. Article 5 of the Supreme People's Court's "Specific Provisions" stipulates that the people's courts shall hold court sessions to hear the following retrial cases according to law: (1) hold court sessions according to the procedure of first instance; (2) Facts or evidence that need to be tried in accordance with the procedure of second instance; (3) The people's procuratorate protested in accordance with the procedure of trial supervision; (4) The defendant in the original trial (the appellant in the original trial) may be aggravated; (5) There are other circumstances that should be heard in court. Article 6 of the "Specific Provisions" stipulates that the following retrial cases may not be heard in court: (1) The original judgment or ruling found that the facts were clear and the evidence was true and sufficient, but the applicable law was wrong and the sentence was extremely heavy; (2)1979 before the implementation of the Criminal Procedure Law; (3) The defendant in the original trial (the appellant in the original trial) or the private prosecutor in the original trial has died or lost the capacity for criminal responsibility; (4) The defendant (appellant) in the original trial served his sentence in a prison in a remote area with very inconvenient traffic, and it was indeed difficult to bring him to court; However, if the people's procuratorate protests, the people's court shall obtain the consent of the people's procuratorate; (5) The people's court decides to retry the case in accordance with the procedure of trial supervision, and the people's procuratorate refuses to send its personnel to appear in court after two notices according to the provisions of Item 4 of Article 9 of these Provisions that "the time and place of the court session shall be notified to the people's procuratorate seven days before the court session".
Article 7 of the "Specific Provisions" stipulates that the retrial decision of the people's court or the protest of the people's procuratorate will only bring a retrial to some defendants in the same case (the appellant in the original trial), and other defendants in the original trial who were not involved in the case (the appellant in the original trial) will not appear in court, which will not affect the trial of the case; Part of the defendants in the original trial (the appellant in the original trial) could not appear in court under the circumstances specified in Items (3) and (4) of Article 6 of these Provisions, which did not affect the trial of the case. According to the provisions of Article 8 of the Specific Provisions, unless the people's procuratorate protests, the retrial will generally increase the punishment for the defendant (the appellant in the original trial) because the range is too small; According to the provisions of Item (2), Item (3), Item (4), Item (5) of Article 6 and Article 7 of the Specific Rules, if the conditions for hearing are not met, or the defendant fails to appear in court to participate in the proceedings, the punishment for the defendant in the original trial (the appellant in the original trial) and the defendant in the same case (the appellant in the original trial in the same case) who did not appear in court shall not be aggravated.
(iii) Pre-trial work. Before the court session, the people's court shall do the following work: 1. Determine the members of the collegial panel; 2. The retrial decision and a copy of the indictment shall be delivered to the people's procuratorate at the same level at the latest 30 days before the court session, and major and difficult cases shall be delivered to the people's procuratorate at the same level at the latest 60 days before the court session, and they shall be informed to consult the file and prepare to appear in court; 3. Deliver a copy of the retrial decision or protest to the defendant (the appellant in the original trial) 30 days before the court session at the latest, and inform him that he can entrust a defender or a lawyer who undertakes legal aid obligations as a defender according to law; 4. Inform the defender to consult the case file and prepare to appear in court at the latest 15 days before the court session, and prepare to appear in court at the latest 60 days before the court session for major and difficult cases; 5. Inform the people's procuratorate of the time and place of the court session 7 days before the court session; 6. Summon the parties and notify the defenders, agents ad litem, witnesses, expert witnesses and translators. Summons and notices shall be served seven days before the court session; 7. For a case tried in public, the cause of action, the name of the defendant (appellant) in the original trial, the time and place of the court session shall be announced in advance 7 days before the court session. After both the prosecution and the defense receive the retrial decision or protest, the people's court may submit new evidence before the court session. After trial, the people's court will not accept new evidence except the evidence that is beneficial to the defendant (appellant) in the original trial. The people's court shall notify the people's procuratorate, the parties or the defenders to consult and copy the new evidence catalogue, copies and photos submitted by both parties 30 days before the court session; Both the prosecution and the defense shall be notified to consult and copy the new evidence catalogue, copies of new evidence, photos and other evidence obtained by the people's court before the trial 15.
(IV) Detention, suspension of execution and compulsory measures After the people's court decides to retry or accept the protest, if the defendant in the original trial (the appellant in the original trial) is serving his sentence, the people's court shall take custody according to the retrial decision, protest, protest ticket and other documents. If the defendant in the original trial (the appellant in the original trial) is in custody and may be acquitted in the retrial, the people's court may obtain bail pending trial after ruling to suspend the execution of the original ruling. The defendant in the original trial (the appellant in the original trial) was not detained, and it was really necessary to take compulsory measures and met the conditions for taking compulsory measures stipulated by law. After the people's court decides to suspend the execution of the original ruling, it shall take compulsory measures according to law.
(5) Members of the collegial panel who have participated in the first, second and review procedures of this case shall not participate in the retrial procedure of this case. Before the court session, the collegial panel shall verify when and why the defendant (the appellant in the first instance) was sentenced by the people's court according to law, whether he committed another crime during his sentence, whether he was commuted or released on parole, and when he was released from prison. After the defendant (appellant) in the original trial appeared in court, the collegial panel shall find out the basic information of the defendant (appellant) in the original trial, inform the defendant (appellant) in the original trial that he has the right to defense and the right to make a final statement, and make a record, which shall be signed by the members of the collegial panel and the clerk respectively. At the hearing, the presiding judge announced the names of the members of the collegial panel, the clerk, the public prosecutor, the defender, the expert witness and the translator, and informed the parties and legal representatives of their right to apply for withdrawal. If the people's court hears a retrial case protested by the people's procuratorate, and the people's procuratorate fails to appear in court after receiving the notice of appearing in court, it shall order the people's procuratorate to withdraw the protest and notify the participants in the proceedings.
If the people's court decides to retry, the members of the collegial panel shall read out the retrial decision. If a retrial is conducted according to the protest of the people's procuratorate, the public prosecutor shall read out the protest. If the parties and their legal representatives or close relatives lodge a complaint, the defendant in the original trial (the appellant in the original trial) and his defender shall state the reasons for the complaint. Under the auspices of the presiding judge, both the prosecution and the defense shall state the facts, evidence and applicable law of the case respectively. The collegial panel summarizes and confirms the uncontroversial and controversial facts, evidence and applicable legal issues between the prosecution and the defense.
Under the auspices of the presiding judge, conduct court investigations and debates on controversial issues between the prosecution and the defense; Both the prosecution and the defense cross-examine new evidence or evidence that was disputed in the original trial. In the debate stage, if the defendant in the original trial (the appellant in the original trial) and his legal representative or close relatives lodge a complaint, the defendant in the original trial (the appellant in the original trial) and his defender will first express their defense opinions, and then the prosecutor will speak, and the victim and his agent will speak; If the victim and his legal representative or close relatives lodge a complaint, the victim and his agent shall speak first, the public prosecutor shall speak, and then the defendant (the appellant in the first instance) and his defender shall express their defense opinions; If the people's procuratorate lodges a protest, the public prosecutor will speak first, the victim and his agent will speak, and then the defendant (the appellant in the first instance) and his defender will express their defense opinions; If there are both complaints and protests, the public prosecutor will speak first, then the complainant and his agent or defender will speak or express their defense opinions, and then the other party and his agent or defender will speak or express their defense opinions. With the permission of the presiding judge, the public prosecutor, parties, defenders and agents ad litem may argue with each other.
According to the evidence, cross-examination and debate of both the prosecution and the defense, the collegial panel may announce the certification results in court. Cases retried by the people's court in accordance with the procedure of trial supervision. The facts, evidence and applicable laws identified in the original judgment or ruling shall be comprehensively reviewed. In criminal cases of private prosecution retried in accordance with the procedure of trial supervision, a judgment or ruling shall be made according to law; The incidental civil part can be settled through mediation. If the parties are acquitted after retrial and have the right to apply for state compensation according to law, the collegial panel shall inform them of their right to apply for state compensation after the judgment becomes legally effective.
(6) Suspension and termination of the trial If the defendant (the appellant in the first instance) is missing after receiving the retrial decision or protest, or fails to appear in court after receiving the protest, the people's court shall suspend the trial; After the defendant (appellant) in the original trial arrives at the case, the trial will be resumed; If there is still no whereabouts for more than 2 years, the trial shall be terminated.
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