A Famous Expert Lawyer in Dali —— Lawyer Ma Xjie
When receiving legal advice, many victims and their families often ask, "As a victim, I think the sentence of the first instance judgment is too light for the defendant. Can I appeal? " This problem is universal for intentional injury or intentional homicide. Lawyer Ma * Jie made the following reply, hoping to help everyone:
In fact, the victim's right of appeal should be determined according to public prosecution cases and private prosecution cases.
First, in a public prosecution case, the victim and his family members have no right of appeal against the criminal judgment.
1. For the criminal part, only the defendant and the defender have the right of appeal, and the victim has no right of appeal. According to the provisions of Article 180 of the Criminal Procedure Law, if the defendant, private prosecutor and their legal representatives refuse to accept the judgment or ruling of first instance of local people's courts at all levels, they have the right to appeal to the people's court at the next higher level in written or oral form. Defenders and close relatives of the defendant may appeal with the consent of the defendant. The parties to an incidental civil action and their legal representatives may appeal to the part of the incidental civil action in the judgment or ruling of first instance of the local people's courts at all levels. The term "defendant, private prosecutor and their legal representatives" here does not include the victim. The parties to an incidental civil action and their legal representatives may appeal to the part of the incidental civil action in the judgment or ruling of first instance of the local people's courts at all levels. The subtext is that the parties involved in incidental civil litigation (including the victims) have no right of appeal to the criminal part of the first-instance judgment and ruling of local people's courts at all levels.
2, the defendant's defender and close relatives appeal, must obtain the consent of the defendant himself.
According to the provisions of Article 180 of the Criminal Procedure Law, with the consent of the defendant, the defendant's defenders and close relatives may appeal. Defenders or close relatives of the defendant who have objections to the criminal judgment may appeal, but they must obtain the consent of the defendant himself. In practice, if the defendant hires a lawyer, the lawyer will go to the detention center to ask the defendant's permission to appeal. However, for those who have not hired a lawyer, but the close relatives of the defendant want to appeal, there is a realistic problem: "At the trial stage, the defendant's family can't meet the defendant, so there is no realistic possibility of obtaining the defendant's consent. Therefore, in this case, it is usually the defendant's family who appeals and the judge obtains the defendant's consent.
2. In a case of public prosecution, if the victim and his family members are dissatisfied with the judgment, they may apply to the procuratorate for protest. Article 182 of the Criminal Procedure Law 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 requester.
Lawyer Ma * Jie specially reminded that the application for protest should be filed within five days after receiving the judgment.
3. In criminal cases of private prosecution, the victim appears in court as a private prosecutor and enjoys full right of appeal. In a case of private prosecution, the private prosecutor is generally also the victim or the victim's family, and the private prosecutor enjoys the right of appeal. According to Article 180 of the Criminal Procedure Law, defendants, private prosecutors and their legal representatives have the right to appeal to the people's court at the next higher level in writing or orally if they refuse to accept the judgment or ruling of first instance of local people's courts at all levels. Defenders and close relatives of the defendant may appeal with the consent of the defendant.
Four, for the incidental civil part of the judgment, the victim and his family are in the position of plaintiff and enjoy the right of appeal. There is no substantive difference between criminal incidental civil action and ordinary civil action, but criminal incidental civil action is brought and tried together. In an incidental civil action, the victim or his close relatives are in the position of civil plaintiff, and if they are dissatisfied with the civil part, they can appeal.