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In the process of appeal, the second trial is a frequently encountered term. As far as the first trial is concerned, the second trial is based on the appellant's appeal or the people's procuratorate's protest. The second instance plays a key role in the fairness of the court's final ruling, so what is the legal definition of the second instance? What is forensic identification? Can I apply for judicial expertise in the second instance? Answer for everyone.
First, the procedure of second instance
The procedure of appeal trial is the steps, ways and methods that the people's court of second instance should follow when trying the facts and applicable laws determined by the judgments and rulings of the people's court of first instance that have not yet taken legal effect according to the appellant's appeal or the protest of the people's procuratorate. It is an independent litigation stage in criminal proceedings.
Second, the judicial expertise
In litigation activities, appraisers use science and technology or expertise to identify and judge specialized issues involved in litigation and provide expert advice. In other words, judicial expertise refers to the activities in which the judicial organ or the parties entrust the legal expertise unit to identify and judge the specialized issues in the case by using professional knowledge and technology in accordance with legal procedures.
Third, can you apply for judicial expertise in the second instance?
"Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" clearly stipulates the time limit for the parties to apply for identification, that is, "it should be put forward within the time limit for proof". However, the Provisions on Evidence and the Notice of the Supreme People's Court on the Application of the Time Limit for Proof in Several Provisions on Evidence in Civil Procedure do not stipulate the time limit for the parties to apply for re-appraisal.
According to the provisions of Articles 27 and 28 of the Evidence Regulations, the circumstances in which the parties apply for re-appraisal are as follows: the parties have objections to the appraisal conclusion made by the appraisal department entrusted by the people's court and apply for re-appraisal; One party entrusts the relevant department to make the appraisal conclusion, and the other party refuses to accept the appraisal conclusion and applies for re-appraisal. The parties who belong to the former situation must provide evidence to prove that the appraisal conclusion made by the appraisal department entrusted by the people's court exists in one of the four situations stipulated in Article 27 of the Evidence Regulations; In the latter case, the party must have sufficient evidence to refute the appraisal conclusion made by the relevant department entrusted by the other party. Otherwise, the people's court will not allow re-appraisal.
Some provisions on evidence in civil proceedings
Article 42 If the parties present new evidence in the procedure of first instance, they shall do so before or during the trial of first instance. If the parties present new evidence in the procedure of second instance, they shall present it before or during the trial of second instance; If the second instance does not need to be heard in court, it shall be put forward within the time limit specified by the people's court.
Article 41
"New evidence" refers to the following circumstances:
(1) The new evidence in the procedure of first instance includes: the evidence newly discovered by the parties after the expiration of the time limit for adducing evidence in first instance; Evidence that the parties concerned cannot provide within the time limit for adducing evidence due to objective reasons, but cannot provide within the extended time limit with the permission of the people's court;
(2) The new evidence in the second trial procedure includes: the newly discovered evidence after the first trial; If the party concerned fails to apply to the people's court for investigation and evidence collection after the expiration of the time limit for adducing evidence in the first instance, the court of second instance shall, after examination, consider that it should be allowed, and shall collect evidence according to the application of the party concerned.
Article 43 The evidence provided by the parties after the expiration of the time limit for adducing evidence is not new, and the people's court shall not accept it. If the parties have been allowed by the people's court to postpone the presentation of evidence, but due to objective reasons, they have not provided it within the permitted time limit, which may lead to unfair judgment, the evidence provided by the parties may be regarded as new evidence.
The law clearly stipulates whether the second instance can apply for judicial expertise, and the answer is yes. Judicial expertise can ensure the objectivity and notarization of the judgment to the greatest extent. However, according to different litigation events, the specific provisions are also different. For more relevant knowledge, please consult Weifang lawyers.
Extended reading:
Avoidance system of judicial appraisers
How much is the judicial expertise in Chengdu? What are the charging items?
How long is the limitation of judicial expertise complaints?