The appeal of the parties and the application for retrial are not the same thing. Appeal is a procedure to appeal to a higher court against a ruling or judgment of first instance that has not yet entered into force. Retrial refers to an application to a court at the same level or at a higher level against an effective ruling or judgment, or the court at the same level or at a higher level decides to retry according to its functions and powers, or the procuratorial organ files a protest to request retrial. The differences between them are: different objects, different filing agencies, different trial agencies, different use procedures, and so on.
First, the appeal is different from the application for retrial. The main differences between the two are:
Appeal is a procedure that the people's court refuses to accept the appeal after hearing the case of first instance and files a retrial with the higher court. There is only one appeal, that is, after the second trial, regardless of the outcome of the case, it is the final judgment and takes legal effect. Application for retrial means that after the court decision takes effect, the parties can apply for retrial to the court that made the effective judgment or its superior court. Since the judgment has come into effect, the parties must have legitimate reasons when applying. If the judge perverts the law, or there is new evidence enough to overturn the original judgment, etc.
I think the biggest difference is that the retrial case, the judgment has taken effect, and the appeal is aimed at the judgment that has not yet taken effect. Retrial can be put forward by the people's court, the procuratorate and the parties, and the appeal is put forward by the parties to the original case. The parties apply for retrial within two years after the judgment takes effect. There is no time limit for the people's court and the procuratorate to start the retrial procedure, and the appeal shall be filed within 15 days from the date when the judgment is served. It may not be complete, but it will help you understand.
Second, the appeal is different from the appeal. The main difference between the two is that:
1, different objects. The object of appeal is a legally effective judgment or ruling, and the object of appeal is a first-instance judgment or ruling that has not yet become legally effective.
2. The subject range is different. The subject of the complaint is the parties and their legal representatives and close relatives; The main body of the appeal is the defendant, the private prosecutor, the parties to the incidental civil action and their legal representatives, the defendant's defender and the close relatives with the consent of the defendant.
3. The accepting organs are different. The organ that accepts the appeal includes not only the people's court that originally tried the case and its superior people's court, but also the people's procuratorate corresponding to the people's courts at all levels; The organs accepting the appeal can only be the people's court that originally tried the case and the people's court at the next higher level.
4. The terminology is different. For appeal, the Criminal Procedure Law does not stipulate the time limit, but the judicial interpretation stipulates the time limit for appeal, generally within 2 years after the execution of the penalty. Please refer to the content of accepting complaints. For the appeal, the law stipulates the time limit, that is, the time limit for refusing to accept the judgment and ruling the appeal is 10 and 5 days respectively.
5. The consequences are different. Appeal is only the source of materials to start the trial supervision procedure, and it cannot stop the execution of effective judgments and orders; However, the appeal will inevitably lead to the second-instance procedure, which will lead to the invalidation of the first-instance judgment and ruling.
Recently, it has been found that many friends confuse appeal with retrial. In fact, appeal and application for retrial are different, interrelated and intertwined.
Complain about what? Refers to the behavior of citizens, enterprises and institutions. , think that the result of a problem is not correct, appeal to the relevant state organs for reasons and request re-handling. Its nature is democratic rights, and its legal basis is the Constitution. There are no strict restrictions on the subject, and the appeal is not limited by the time limit, which does not necessarily lead to retrial, but of course it is also the way to find wrong cases. In the way of handling, only oral and written answers can be given, which cannot be solved by the referee.
What is an application for retrial? Application for retrial (here only refers to civil cases) refers to the behavior of civil litigants applying for retrial to the people's court at the next higher level or the court of first instance for a civil judgment or ruling that has entered into force. Its nature is a litigation right, based on the civil procedure law. The subject of the application can only be the parties. Due to time constraints, those who meet the requirements must be reviewed and ruled.
Appeal and application for retrial are two different system designs. There are six differences between them. However, they are all aimed at triggering the retrial procedure and seeking the change or abolition of the judgment of the second instance.
The right to appeal and the right to apply for retrial are the right means stipulated by law to ask state organs for relief and protection when citizens' legitimate rights and interests are damaged. They all belong to the category of right of appeal, so they are often confused or even confused in practice.
Actually, applying for retrial is different from appealing. Appeal is a democratic right, which belongs to the broad right of appeal and has the characteristics of "six infinity", that is, there is no limitation of time, level, case, subject and organ. It is precisely because there are no specific appeal conditions that it is difficult for the parties and their legal representatives to appeal. As a litigation right, applying for retrial must have corresponding legal conditions.
1. The subjects applying for retrial are strictly limited to the parties in the original trial and their legal representatives, and no one else has the right to apply for retrial.
2. The object of application for retrial is the effective judgment or ruling that is really wrong, as well as the conciliation statement that violates the principle of voluntariness or the content is illegal. Appeals are not subject to this restriction. Appeals can be made against legal documents that have not yet entered into force or those that have already entered into force. In addition, complaints can also be directed at some illegal acts.
3. The time limit for applying for retrial is within 2 years after the legal documents come into effect. After more than 2 years, the right to apply for retrial is lost. There is no time limit for complaints.
4. The application for retrial must conform to the statutory circumstances, which vary with different legal documents. That is, a legally effective judgment or written order must meet the following conditions: Article 178 If a party considers that a legally effective judgment or written order is wrong, it may apply to a people's court at the next higher level for retrial, but the execution of the judgment or written order shall not be suspended. Article 179 of the new civil procedure law stipulates that if the application of a party meets one of the following circumstances, the people's court shall retry it:
(1) There is new evidence enough to overturn the original judgment or ruling;
(two) the basic facts identified in the original judgment or ruling lack evidence to prove;
(3) The main evidence of the facts ascertained in the original judgment or ruling is forged;
(four) the main evidence of the facts ascertained in the original judgment or ruling has not been cross-examined;
(five) the evidence needed for the trial of the case, the parties can not collect it by themselves due to objective reasons, and apply in writing to the people's court for investigation and collection, but the people's court has not investigated and collected it;
(6) The application of the law in the original judgment or ruling is indeed wrong;
(7) Violation of laws and wrong jurisdiction;
(eight) the composition of the judicial body is illegal or the judges who should be avoided according to law have not avoided;
(9) A person without capacity for litigation does not have a legal representative, or the party who should participate in the litigation does not participate in the litigation due to reasons not attributable to him or his agent ad litem.
(10) illegally depriving the parties of the right to debate;
(1 1) Default judgment, not summoned;
(12) The original judgment or ruling is omitted or exceeds the claim;
(13) The legal document on which the original judgment or ruling was based was revoked or changed.
If the violation of legal procedures may affect the correct judgment and ruling of the case, or if the judges have committed corruption, bribery, favoritism and perverting the law in the trial of the case, the people's court shall retry the case.
Only when the parties provide evidence to prove that mediation violates the principle of voluntariness or the contents of the mediation agreement violate the law can they apply for retrial. The appeal is not limited by the above legal situation.
Article 180 of the new civil procedure law stipulates that "if a party applies for retrial, it shall submit an application for retrial and other materials. The people's court shall, within five days from the date of receiving the application for retrial, send a copy of the application for retrial to the other party. The other party shall submit written opinions within fifteen days from the date of receiving the copy of the retrial application; Failure to submit written opinions shall not affect the people's court's review. The people's court may require the applicant and the other party to supplement relevant materials and ask about relevant matters. "
Article 18 1 stipulates that "the people's court shall conduct an examination within three months from the date of receiving the application for retrial, and if it meets one of the circumstances stipulated in Article 179 of this Law, it shall order a retrial; If it does not conform to the provisions of Article 179 of this Law, the application shall be rejected. If there are special circumstances that need to be extended, it should be approved by the president of our hospital.
5. The application for retrial shall be submitted to the people's court with jurisdiction, that is, the court of first instance or the court at the next higher level. You can complain to any court, in addition, you can also complain to the procuratorate, the people's congress and the news agency at the same time.
A case in which a party applies for adjudication for retrial shall be tried by a people's court at or above the intermediate level. Cases decided by the Supreme People's Court and the Higher People's Court for retrial shall be retried by this court or other people's courts, or by the people's court that originally tried them. "
6. Article 184 of the new Civil Procedure Law stipulates that "the parties shall apply for retrial within two years after the judgment or ruling becomes legally effective; Two years later, the legal documents on which the original judgment or ruling was based were revoked or changed, and it was found that the judges had committed acts of corruption, bribery, malpractice and perverting the law in the trial of the case, which was put forward within three months from the date when they knew or should have known. "
7. Appeal refers to a litigation request that the parties and their legal representatives put forward to the people's court of first instance and the people's court at a higher level to reprocess the legally effective judgment, ruling or conciliation statement. During the appeal, the original judgment or ruling shall not be suspended. If the complaint is considered reasonable, the president shall submit it to the judicial Committee for discussion and decision whether to retry.
In any of the following circumstances, the people's court shall retry the application:
(1) There is new evidence enough to overturn the original judgment or ruling;
(two) the main evidence of the facts ascertained in the original judgment or ruling is insufficient;
(three) the original judgment or ruling was wrong in applying the law;
(four) the people's court violates legal procedures, which may affect the correct judgment and ruling of the case;
(5) Judges are involved in corruption, bribery, favoritism and malpractice, and pervert the law. ?
In addition, if the parties provide evidence to prove that mediation violates the principle of voluntariness or the contents of the mediation agreement violate the law, they may apply for retrial. If it is verified by the people's court, it shall be retried.
If a party applies for a retrial, it shall do so within 2 years after the judgment or ruling becomes legally effective.
It is precisely because there is such a big difference between appeal and application for retrial that they cannot be confused in nature and function. At present, in judicial practice, especially in the trial supervision departments of some grass-roots courts, there is still a phenomenon of mixing two titles, which is not rigorous and should be clarified.
The second part (reproduced)
Misunderstanding of the law, appeal is by no means, nor can it be equated with applying for retrial.
Over time, it is even more difficult to apply for retrial. How difficult is it? Civilians call it "difficult to go to the sky." Imagine how difficult it is! Today, in the construction of a society ruled by law, there are of course many reasons, but the author thinks that the main reason is that courts at all levels and even some procuratorates can't distinguish the relationship between appeal and application for retrial, and they equate appeal with application for retrial, and put forward that "appeal means application for retrial, and application for retrial equals appeal." Its theoretical root lies in that the purpose of appeal is to cause retrial procedure, so appeal is equal to retrial. " The law of applying for retrial stipulates that two years is the same period, so the time for appeal is also set at two years, and all appeal cases exceeding two years are shut out of the law. As a result, a large number of unjust, false and misjudged cases have not been corrected, and the parties have petitioned the courts, procuratorates and the Supreme People's Procuratorate for a long time. It turns the case down layer by layer, from the starting point to the end point and then back to the starting point, and it goes on and on, in a vicious circle.
The author thinks that this is a misunderstanding of some judges in grass-roots courts. I searched the legal documents and judicial interpretations of the Supreme Court on the Internet, but I couldn't find the answer. During the two sessions, leaders of the Supreme People's Court visited China Court Network and answered questions from netizens on the spot. Shao, president of the Supreme People's Court Administrative Tribunal and director of the Supreme People's Court Institute of Science, gave two completely contradictory answers, which are summarized as follows:
Answer the question of netizen [Arrow of French Open]: May I ask President Zhao:
After the civil final judgment comes into effect, can the parties appeal if they refuse to accept it? Is there a time limit for appeal?
A: Let me give you a brief answer. After a civil judgment, including an administrative judgment, becomes effective, if the parties are not satisfied, they have the right to appeal to the court that made the effective judgment or the court at the next higher level. However, there are some restrictions on the time of appeal, including some regulations made by the Supreme Court and some specific requirements. In principle, within two years. If you really have any complaints and are not satisfied with the effective judgment, you must lodge a complaint within two years, not exceeding this time. Because I think it is necessary to limit the time of appeal, otherwise the indefinite appeal will make this legal relationship and litigation order in an uncertain and unstable state, so we should pay attention to grasping this time.
Answer the question of netizen [Arrow of French Open]: May I ask Director Shao:
(Shao, Director of the Supreme People's Court Research Office) Is there a deadline for the appeal period after the final judgment?
A: According to relevant laws and regulations, after the final judgment, the parties can appeal whether it is a civil judgment or a criminal judgment. According to the current law, there is no time limit for the appeal period.
The answers of the two leaders immediately caused confusion in the judicial circles and the public, as well as in law and thought, after they were broadcast live on the China Court website. In the end, what the leader said is right, and how the lower courts should implement it. The author believes that this is not a trivial matter, not a casual question, but a question of whether thousands of unjust, false and wrong cases can be corrected. The reporter of Outlook Weekly found in Beijing Supreme Court (petition village) that the earliest case in the petition army was in 1950s, and the latest case was in 2005. If you follow Zhao Tingchang's answer, all of them will be excluded from the law. In fact, appealing is tantamount to applying for a retrial. In this way, the old unjust, false and misjudged cases will not be corrected, and new ones will happen again, because the retrial law does not stipulate the time limit from application to judgment, and some cases have not been tried for more than two years, or the retrial application has been rejected for more than two years. If it is really a false and wrong case, it will sink into the sea. In recent years, the Supreme People's Court has complained to the people, and all kinds of efforts to prevent complaints from visiting will come to nothing.
Therefore, the author believes that appeal is by no means and cannot be equated with retrial for the following reasons:
The current civil procedure law does not revoke the appeal, but appeals and applications for retrial coexist. Complaint is a democratic political right given to citizens by our constitution. Article11of the Civil Procedure Law stipulates that if a party files a lawsuit against a legally effective case, it shall inform the plaintiff to handle it according to the appeal. It can be seen that the complaint is the embodiment of the democratic rights of the parties. 1Article 2 of the Interim Provisions of the Supreme People's Procuratorate on Protest in Civil Trial Supervision Procedure, which was tried out in June, 1992, stipulates that the appeal of the parties is the primary source for people's procuratorates at all levels to accept protest cases in civil trial supervision procedures.
Appeal and application for retrial are different, the difference lies in:
1. They have different themes. The subject of the complaint can be the party concerned or someone other than the party concerned; The subject of applying for retrial can only be the parties.
2. The accepting organs are different. You can complain to the court and the procuratorate or other state organs; The application for retrial can only be made to the court of first instance and the higher court.
3. The time limit for exercising rights is different. There is no time limit for appeal; The application for retrial must be made within two years after the judgment, ruling or mediation book takes effect.
4. The legal consequences are different. Appeals do not necessarily lead to retrial proceedings. Retrial can only be triggered after the original judgment, ruling or mediation document has been reviewed by the statutory organ, the procuratorate has made a protest decision or the court has made a retrial ruling. However, if the parties apply for retrial, as long as they have legal conditions, retrial procedures can occur.
Because of the coexistence of appeal and retrial in China, the provisions of the law on retrial are more specific than those on appeal, but there is no specific provision on appeal. This has brought a misunderstanding to the courts and procuratorates at all levels, confusing the appeal with the application for retrial and taking what they need. This is also one of the reasons why it is difficult to appeal at present and many unjust, false and misjudged cases cannot be corrected.
The author agrees with Shao, director of the Supreme People's Court Policy Research Institute, who answered questions from netizens in the live broadcast of China Court Network. "According to the current law, there is no time limit for the appeal period." As long as the courts at all levels treat the complaints of the parties in accordance with the principle of "correcting mistakes", with the joint efforts of the courts at all levels, the day of stopping the complaints will not be far away.
The difference between appeal and retrial application right
The right to appeal and the right to apply for retrial are the right means stipulated by law to ask state organs for relief and protection when citizens' legitimate rights and interests are damaged. They all belong to the category of right of appeal, so they are often confused or even confused in practice.
Actually, applying for retrial is different from appealing. Appeal is a democratic right, which belongs to the broad right of appeal and has the characteristics of "six infinity", that is, there is no limitation of time, level, case, subject and organ. It is precisely because there are no specific appeal conditions that it is very difficult for the parties and others to appeal. As a litigation right, applying for retrial must have corresponding legal conditions.
1. The subjects applying for retrial are the parties and their legal representatives. The subject applying for retrial is strictly limited to the parties in the original trial and their legal representatives, and no one else has the right to apply for retrial.
Two, the object of application for retrial is the effective judgment and ruling that is really wrong, and the mediation book that violates the principle of voluntariness or the content is illegal.
Appeals are not subject to this restriction. Appeals can be made against legal documents that have not yet entered into force or those that have already entered into force. In addition, complaints can also be directed at some illegal acts.
Third, the time limit for applying for retrial is within 2 years after the legal documents come into effect. After more than 2 years, the right to apply for retrial is lost. There is no time limit for complaints.
Fourth, the application for retrial must conform to the legal situation, which varies with different legal documents. That is, a legally effective judgment or ruling must meet the following conditions: (1) There is enough new evidence to overturn the original judgment or ruling. According to Article 44 of the Rules of Evidence in Civil Procedure, "new evidence" here refers to the newly discovered evidence after the original trial. (2) The original judgment or written order was wrongly applied by law. (three) the main evidence of the facts ascertained in the original judgment or ruling is insufficient. (4) the people's court violates legal procedures, which may affect the correct judgment and ruling of the case. (five) the judge has corruption, bribery, favoritism, perverting the law in the trial of the case. Only when the parties provide evidence to prove that mediation violates the principle of voluntariness or the contents of the mediation agreement violate the law can they apply for retrial. The appeal is not limited by the above legal situation.
5. The application for retrial shall be submitted to the people's court with jurisdiction, that is, the court of first instance or the court at the next higher level. You can complain to any court, in addition, you can also complain to the procuratorate, the people's congress and the news agency.
It is precisely because there is such a big difference between appeal and application for retrial that they cannot be confused in nature and function. At present, in judicial practice, especially in the trial supervision departments of some grass-roots courts, the phenomenon of mixing two titles is not rigorous.