Appeal refers to the activities of the parties, their legal representatives and close relatives, requesting the people's court or the people's procuratorate to retry the original case against the legally effective judgment or ruling, the people's procuratorate's decision not to prosecute and the decision not to approve the arrest.
Second, the difference between protest and protest.
Protest is a kind of judicial activity that the people's procuratorate thinks that the judgment or ruling of the people's court is wrong and requests the people's court to retry.
The subject of protest is the people's procuratorate, and the subject of appeal is the parties and their legal representatives and close relatives.
The department that lodged the protest: the protest can only be lodged with the people's court and the people's court at a higher level that made the judgment or ruling; A complaint may be lodged with the people's court that made the judgment or ruling and its superior people's court, or with the people's procuratorate at the same level that made the judgment or ruling.
Results:
If the people's procuratorate protests, the people's court at a higher level must retry the case and hold a hearing.
If a party appeals to a people's court, the people's court must examine it after accepting it: if it considers that it meets the conditions for retrial, it shall make a ruling to revoke the original judgment and decide to retry, and then open a court session for retrial, and the people's procuratorate shall send personnel to participate; Those who think that they do not meet the conditions for retrial will directly reject the appeal and will not be retried;
If a party appeals to the procuratorate and the people's procuratorate considers that it meets the conditions for protest, it shall lodge a protest with the people's court, and the people's court must hold a hearing; If the people's procuratorate considers that it does not meet the conditions for protest, it may directly reject the appeal and not file a protest.
Third, the difference with retrial.
Bring up this topic:
The subject of retrial is the people's court. If the people's court finds that the legally effective judgment of the court or the lower court is wrong, it shall revoke the judgment according to law and decide to retry.
The subject of the complaint is the parties and their legal representatives and close relatives.
Results:
After a retrial is decided, the original judgment shall be revoked and the people's court shall try it again.
After filing a complaint, the people's court shall conduct a review, and if it considers that it meets the statutory conditions for retrial, it shall make a ruling to revoke the original judgment and decide to retry; If the people's court considers that it does not meet the conditions for retrial after examination, it will directly reject the appeal.
Four. Summary of referee basis
(1) Criminal Procedure Law
Chapter V Procedure of Trial Supervision
Article 241 The parties concerned, their legal representatives and close relatives may appeal to a people's court or a people's procuratorate against a legally effective judgment or ruling, but the execution of the judgment or ruling shall not be suspended.
Article 242nd The people's court shall retry the appeal of the parties, their legal representatives or close relatives in any of the following circumstances:
(a) there is new evidence to prove that the facts identified in the original judgment or ruling are indeed wrong, which may affect conviction and sentencing;
(2) The evidence on which conviction and sentencing are based is inaccurate and insufficient, which should be excluded according to law, or there are contradictions between the main evidences proving the facts of the case;
(3) The application of the law in the original judgment or ruling is indeed wrong;
(four) in violation of legal procedures, which may affect the fair trial;
(5) The judicial officers commit acts of corruption, bribery, favoritism and malpractice, and perverting the law.
Article 243rd If the presidents of people's courts at all levels find errors in ascertaining facts or applying laws in legally effective judgments and orders, they must submit them to the judicial committee for handling.
The Supreme People's Court has the right to send back or instruct the people's courts at lower levels to retry the legally effective judgments and rulings of the people's courts at all levels. If the people's courts at higher levels find that there are indeed mistakes, they have the right to send back or instruct the people's courts at lower levels to retry.
The Supreme People's Procuratorate has the right to lodge a protest with the people's court at the same level in accordance with the procedure of trial supervision if it finds that the legally effective judgment or ruling of the people's court at all levels is wrong, and the people's procuratorate at a higher level has the right to lodge a protest with the people's court at the same level in accordance with the procedure of trial supervision.
When a people's procuratorate protests a case, the people's court that accepts the protest shall form a collegiate bench for retrial. If the facts of the original judgment are unclear or the evidence is insufficient, the people's court at a lower level may be ordered to retry.
Article 244 A case ordered by a higher people's court to be retried by a lower people's court shall be ordered to be tried by a lower people's court other than the people's court that originally tried it. If it is appropriate to have the trial conducted by the people's court that originally tried the case, the people's court that originally tried the case may also be ordered to conduct the trial.
Article 245 If a case retried by a people's court in accordance with the procedure of trial supervision is tried by the people's court that originally tried it, a collegial panel shall be formed separately. If it turns out to be 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; If it is a case of second instance, or a case brought before a people's court at a higher level, it shall be tried in accordance with the procedure of second instance, and the judgment and ruling made shall be final.
When the people's court hears a retrial case, the people's procuratorate at the same level shall send personnel to appear in court.
Article 246 If a case decided by a people's court for retrial requires compulsory measures against the defendant, it shall be decided according to law; If the retrial case protested by the people's procuratorate requires compulsory measures against the defendant, it shall be decided by the people's procuratorate according to law.
The people's court may decide to suspend the execution of the original judgment or ruling in a case tried in accordance with the procedure of trial supervision.
Article 247 A case retried by the people's court in accordance with the procedure of trial supervision shall be concluded within three months from the date of making the decision to remand the case for retrial, and if the time limit needs to be extended, it shall not exceed six months.
The people's court that accepts the protest shall hear the protest case in accordance with the procedure of trial supervision, and the time limit for hearing shall apply to the provisions of the preceding paragraph; If it is necessary to instruct the lower people's court to retry, it shall make a decision within one month from the date of accepting the protest, and the time limit for the lower people's court to hear the case shall be governed by the provisions of the preceding paragraph.
(two) the opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Justice on the gradual implementation of the lawyer's appeal system.
Fa Zheng Fa [2017] No.8
The implementation of lawyer's agency system is an important way to ensure the parties to exercise their right to appeal according to law, realize the legalization of appeal, promote judicial justice, improve judicial credibility and safeguard judicial authority. In order to implement the "the Central Committee of the Communist Party of China's Decision on Comprehensively Advancing Several Major Issues in Governing the Country according to Law" and the "Opinions of the Central Political and Legal Committee on Establishing a System of Lawyers Participating in Resolving and Representing Petition-related Letters and Calls", the system of lawyers' representation will be gradually implemented for appeals against the effective judgments and decisions of judicial organs. According to the relevant laws, combined with the actual judicial work of the people, this opinion is formulated.
First, adhere to the principle of equality and voluntariness. If a party refuses to accept the effective judgment or decision made by the people's court or the people's procuratorate, he may entrust a lawyer by himself; The people's courts and people's procuratorates may instruct the complainant and the respondent to entrust lawyers to represent them.
If the complainant fails to entrust a lawyer due to financial difficulties, he may apply to a legal aid institution.
Second, improve the convenience mechanism. Relying on public welfare legal service institutions and legal aid institutions, using online platforms, legal service hotlines and other forms to provide diversified channels for parties to seek lawyer services and legal aid.
Third, explore the establishment of a resident working system for lawyers. People's courts and people's procuratorates may open special places in litigation service halls and other places to provide necessary office facilities, and lawyers' associations shall send lawyers to carry out legal consultation and other work. If a complainant who has not entrusted a lawyer reflects his appeal to the people's court or the people's procuratorate, he may first guide the resident lawyer to provide legal advice. Legal aid agencies arrange lawyers to provide free legal advice to complainants.
Four, clear the scope of legal aid conditions. When applying for legal aid, the complainant shall conform to the standards and scope of financial difficulties in legal aid stipulated in the Regulations on Legal Aid and local legal aid laws and regulations, and have legitimate reasons for appeal and clear factual basis.
Expand the scope of legal aid, further relax the standards of financial difficulties, and gradually expand the scope of legal aid to low-income groups.
Five, standardize the legal aid procedures for lawyers to represent complaints. When applying for legal aid, the complainant shall file a complaint with the legal aid institution affiliated to the judicial administrative organ at the same level where the people's court has made an effective judgment or decision, or with the legal aid institution affiliated to the judicial administrative organ at the same level where the people's procuratorate has made a criminal handling decision, so as to terminate the lawsuit. If the complaint has been accepted by the people's court or the people's procuratorate, it shall be submitted to the legal aid institution of the judicial administrative organ at the same level where the people's court or the people's procuratorate is located.
If a legal aid institution considers that it meets the conditions for legal aid after examination, it shall appoint lawyers for the complainant and notify the people's court or people's procuratorate of the list of lawyers.
Sixth, expand the scope of lawyer services. In the process of agency, lawyers can carry out the following tasks: listen to the complainant's demands, ask about the case and provide legal advice; The people's court and the people's procuratorate think that they do not meet the conditions for filing a case, and do a good job in legal interpretation; Upon examination, if it meets the requirements of the people's court and the people's procuratorate for filing a case, it shall write legal documents for the complainant and accept the entrustment to appeal on his behalf; After examination, it is considered that it may meet the conditions of legal aid, and assist in applying for legal aid; After accepting the entrustment, submit the complaint materials, receive the legal documents, and participate in the hearing, inquiry, interrogation and court session as an agent.
Seven, improve the appeal filing review procedures. Entrusted by the complainant, the lawyer may complain to the people's court or the people's procuratorate about the reception place or submit the complaint materials through letters, online complaint platforms, remote video interview systems and lawyer service platforms.
If the submitted materials do not meet the requirements, the people's court or people's procuratorate may notify them to supplement or make corrections within a time limit, and inform them of all the materials that should be supplemented or made corrections at one time. If it is not submitted within the notice period, the people's court or the people's procuratorate will not accept it.
After receiving the materials, the people's courts and people's procuratorates shall file a case for examination according to law. If it does not meet the conditions for filing a case, it shall notify the complainant and his attorney in writing.
Eight, respect the opinions of lawyers. The people's courts and people's procuratorates shall carefully examine the complaints filed by lawyers on their behalf and complete the examination within the time limit prescribed by law.
If the complaint cannot be established after examination, legal documents shall be issued to the complainant according to law and served on the attorney at the same time. If it is believed that the case is indeed wrong, it shall be corrected according to law. If a case is found to be defective, corresponding corrective and remedial measures shall be taken according to law.
Nine, according to the law to protect the right to read and meet with lawyers. Set up a lawyer's marking room and interview room in the litigation service hall or the reception place for letters and visits. Provide convenience and guarantee for lawyers to consult, extract and copy case files. Lawyers appointed by legal aid institutions shall be free of charge for copying relevant materials. Conditional areas can provide online marking services.
X. Protect the personal safety of lawyers according to law. The people's court or the people's procuratorate shall stop the illegal acts that may endanger the personal safety of lawyers in the process of stationing or acting as agents, fix the evidence in time according to law, and do a good job in relevant disposal.
Eleven, improve the lawyer's complaint disclosure mechanism. The people's courts and people's procuratorates may open the procedures for filing a case and reviewing it, and inform the complainant and his agent of the results of the review, except in cases where the law stipulates that it cannot be made public, the parties do not agree to make it public, or other circumstances are inappropriate. If the case is difficult and complicated, the complainant and his agent may apply for a public hearing, and the people's courts and people's procuratorates may hold it in public upon application or ex officio, and invite experts in related fields, deputies to the National People's Congress, members of the CPPCC, representatives of the masses and other social third parties to participate.
Twelve, explore the establishment of an online working platform for lawyers to represent complaints. Using information technology, explore the establishment of a video appeal system between law firms, legal aid institutions and people's courts and people's procuratorates, and encourage lawyers to work through video; Develop a lawyer's complaint acceptance platform to realize the interconnection and sharing of public complaint information with people's courts and people's procuratorates.
Thirteen, establish a multi-level funding guarantee mechanism. Applicants who meet the conditions of legal aid shall be included in the scope of legal aid. Lawyers represent public interests, relying on the Political and Legal Committee of the Party Committee to coordinate relevant departments to strive for funds and purchase services. Pay the lawyer's fees in full in the process of providing services, and give appropriate subsidies and rewards.
If the complainant hires a lawyer to represent him, both parties may voluntarily negotiate the agency fee in accordance with the Measures for the Administration of Lawyers' Service Fees.
Strengthen the guarantee of legal aid funds, clarify the subsidy standards for appeal legal aid cases, and ensure that the level of funding guarantee meets the needs of legal aid to participate in the agency work of appeal cases.
Fourteen, the establishment of complaints agency quality supervision mechanism. The judicial administrative department guides the local lawyers association to regard the performance of lawyers' representatives as an important indicator of the inspection and assessment of law firms and the annual assessment of lawyers' practice.
Fifteen, strengthen the management of lawyers' complaint practice. In the process of representing lawyers, inciting, instigating or organizing complainants to express their demands in an illegal way in violation of the provisions of the Lawyers Law of People's Republic of China (PRC) and the Measures for the Administration of Lawyers' Practice; Using the case information obtained in the process of agency to make distorted and misleading publicity comments and maliciously speculate on the case; Sign a risk agency agreement with the complainant; If a people's court or people's procuratorate receives other parties while providing legal services, or induces other parties to sign an agency agreement by means of false promises, express or implied special relationship with the judicial organs, the judicial administrative department or the bar association will give corresponding industrial sanctions and administrative penalties. If a crime is constituted, criminal responsibility shall be investigated according to law.
If the people's courts and people's procuratorates find that lawyers have violated laws and regulations, they shall put forward suggestions on punishment and punishment to the judicial administrative department and the lawyers' association. After verification, the judicial administrative department and the lawyers association shall promptly notify the recommending organ of the results.
Sixteen, establish and improve the incentive mechanism for lawyers to complain. People's courts, people's procuratorates, and judicial administrative departments should create a good atmosphere to support lawyers to carry out representative complaints, comprehensively strengthen the training and guidance of lawyer's representative complaints, regard the performance of representative complaints as an important condition for selecting excellent law firms and lawyers, regularly carry out special commendation, give preferential treatment in personnel training, project allocation, support for development, case handling subsidies, etc., and give priority to recruiting excellent lawyers as judges and prosecutors under the same conditions to mobilize the enthusiasm of lawyer's representative complaints.
Seventeen, strengthen the coordination and cooperation of relevant departments. Relevant departments in various regions should rely on the leadership of party committees to form a joint effort. According to the actual situation, further refine the relevant systems, promote the all-round development of the work, promote the formation of a rational expression, the guidance of safeguarding rights according to law, and earnestly safeguard the legitimate interests of the people.
People's courts, people's procuratorates, judicial administrative departments and lawyers' associations shall establish a joint meeting system, communicate with each other regularly, study and solve major problems in the work of lawyers' representatives, actively promote the legislative work of lawyers' representatives according to local conditions, and improve the level of legalization.
(3) Provisions of the People's Procuratorate on Reviewing Criminal Appeal Cases
(20 14 adopted at the 20th meeting of the 12th Procuratorial Committee of the Supreme People's Procuratorate on April 29th)
Article 3 The people's procuratorates shall follow the following principles when examining criminal appeal cases: (1) The right to handle cases originally tried shall be separated from the right to review appeals; (2) Review in accordance with legal procedures; (three) the whole case review, open and fair; (4) Seeking truth from facts and correcting mistakes according to law.
Article 4 When examining criminal appeal cases, people's procuratorates may conduct public examination by means of public hearing, public giving of evidence, public debate and public defense according to the needs of handling cases.
Article 5 The term "criminal appeal" as mentioned in these Provisions refers to the appeal to the people's procuratorate against the criminal handling decision of the people's procuratorate or the legally effective criminal judgment or ruling of the people's court.
Chapter II Governance
Article 6 The criminal complaint procuratorial department of the People's Procuratorate shall have jurisdiction over the following criminal complaints:
(a) refuses to accept the appeal of the people's procuratorate's decision not to approve the arrest because the suspect has no criminal facts or conforms to the provisions of Article 15 of the Criminal Procedure Law of People's Republic of China (PRC);
(2) Appeals against the decision of the people's procuratorate not to prosecute;
(3) Appeals against the people's procuratorate's decision to cancel the case;
(4) Appeals against criminal decisions of people's procuratorates to terminate other lawsuits;
(5) Appeals against legally effective criminal judgments and orders of the people's courts.
Article 7 Complaints against the following decisions of the People's Procuratorate are not under the jurisdiction of the criminal complaint procuratorial department, and should be handled by the relevant functional departments of the People's Procuratorate in accordance with the Criminal Procedure Rules of the People's Procuratorate (Trial): (1) Those who refuse to approve the arrest made by the People's Procuratorate due to unclear facts and insufficient evidence need supplementary investigation; (2) Refusing to accept the people's procuratorate's decision not to approve the arrest because although there is evidence to prove the criminal facts, it is impossible to sentence the criminal suspect to more than fixed-term imprisonment, or it may be sentenced to more than fixed-term imprisonment, but social danger will not occur without arrest; (3) Refusing to accept the decision of the people's procuratorate not to approve the arrest on the grounds that the criminal suspect who should be arrested is suffering from a serious illness, unable to take care of himself, or is a pregnant woman who is nursing a baby, or is the only dependent of a person who cannot take care of himself; (four) refuses to accept the decision made by the people's Procuratorate not to file a case; (5) Refusing to accept the conditional non-prosecution decision made by the people's procuratorate; (six) refuses to accept the decision of the people's procuratorate to seal up, detain or freeze the money and materials involved; (seven) refuses to accept the reconsideration, review and review decision made by the people's procuratorate on the above decision.
Article 8 The appeal against the final judgment or ruling of the people's court that the death penalty has not been executed shall be handled by the prison procuratorial department of the people's procuratorate.
Article 9 The basic people's procuratorates shall have jurisdiction over the following criminal complaints: (1) Complaints against the criminal handling decision of the court to terminate litigation, unless otherwise provided for in these Provisions; (2) An appeal against a legally effective criminal judgment or ruling of the people's court at the same level.
Article 10 The people's procuratorates at or above the prefecture level shall have jurisdiction over the following criminal complaints: (1) Complaints against the criminal handling decision of the court to terminate litigation, unless otherwise provided for in these Provisions; (2) An appeal against a legally effective criminal judgment or ruling of a people's court at the same level; (3) The victim refuses to accept the decision of the people's procuratorate at the next lower level not to prosecute and lodge a complaint within seven days after receiving the decision of not to prosecute; (four) the appeal against the original decision, judgment or ruling, which is reviewed or reviewed by the people's procuratorate at the next lower level.
Article 11 When necessary, a people's procuratorate at a higher level may transfer criminal appeal cases under its jurisdiction to a people's procuratorate at a lower level, or directly handle criminal appeal cases under the jurisdiction of a people's procuratorate at a lower level.
Chapter III Handling
Article 12 The People's Procuratorate shall accept criminal complaints that meet the following conditions, except as otherwise provided in these Provisions: (1) Criminal complaints that fall under the circumstances of Article 5 of these Provisions; (2) Conforming to the provisions of Chapter II of these Provisions; (3) The complainant is a party to the original case and his legal representative or near relative; (4) The complaint materials are complete. If the complainant entrusts a lawyer to represent the complaint and meets the above conditions, it shall be accepted.
Article 13 When appealing to the People's Procuratorate, the complainant shall submit the complaint, identity certificate, relevant legal documents, evidence materials or evidence clues. Identity certificate refers to a natural person's resident identity card, military officer's card, soldier's card, passport and other valid documents that can prove his identity; A copy of the business license of the legal person or other organization, the organization code certificate and the identity certificate of the legal representative or principal responsible person and other valid certificates. The people's procuratorate shall keep a copy of the verified identity certificate. Relevant legal documents refer to the written decision made by the people's procuratorate, the written decision of criminal appeal review, the notice of criminal appeal review, the notice of criminal appeal review result or the written judgment or ruling made by the people's court.