The protest condition in the second instance procedure is: 1. The judgment or ruling of the first instance is indeed wrong. 2. It is really necessary to protest. In any of the following circumstances, it shall be deemed necessary to protest, and a protest shall be filed according to law: 1. The evidence collected by the people's court itself is used as the basis of judgment without cross-examination in court, resulting in a wrong judgment. 2. The people's court refuses to accept the valid evidence collected by the public prosecutor before the court session and cross-examined by the court session, and makes an acquittal or changes the fact finding only because of the defendant's retraction, resulting in a wrong judgment. 3. The trial activities of the people's court seriously violate the legal proceedings, or the judges commit corruption, bribery, favoritism and other acts in the process of hearing the case, which affects the impartial judgment. 4. The judgment or ruling finds that the facts are wrong or the applicable law is wrong, and the social impact of sentencing is bad, although it has not caused abnormal weight. 5. A wrong judgment is made due to the identification of important facts and legal circumstances, or the nature of the crime is wrong due to the judgment or ruling, which may adversely affect judicial practice. The meaning of protest in the procedure of trial supervision 1, the meaning of protest The people's procuratorate lodged a protest in accordance with the procedure of trial supervision, which is a litigation activity that the Supreme People's Procuratorate or the people's procuratorate at a higher level of the people's court protested to the people's court at the same level in accordance with the law against the legally effective judgment or ruling of the people's court. 2. The difference between retrial protest and appeal protest. Retrial protest is a form of protest by the people's procuratorate. Like the protest in the appeal trial procedure, it belongs to the trial supervision activities of the people's procuratorate. Its purpose is to supervise whether the judgments and rulings of the people's courts are correct and safeguard the correct implementation of the law. However, there are also differences between the two: First, the nature of the judgment and ruling against which the protest is made is different. The protest in the appeal procedure is against the judgment and ruling that has not yet taken legal effect. The protest of trial supervision procedure is put forward against the legally effective judgment or ruling. Second, the main body of the protest is different. The protest of appeal procedure is the protest of local people's procuratorates at all levels against the judgment and ruling of the people's court at the same level. As for the protest of the trial supervision procedure, only the people's procuratorate at a higher level has the right to protest against the effective judgments of people's courts at all levels except the Supreme People's Procuratorate. If the local people's procuratorates at various levels find that the legally effective judgment or ruling of the people's court at the same level is indeed wrong, they shall lodge a protest and report it to the people's procuratorate at the next higher level for examination and decision. Third, the time limit for protests is different. For the protest in the appeal procedure, the law stipulates that the time limit for the protest against the judgment is 10 day, and the time limit for the protest against the ruling is 5 days. There is no time limit for the protest in the trial supervision procedure. As long as the people's procuratorate finds that there is an error in the effective judgment or ruling, it can lodge a protest regardless of whether the judgment or ruling is being executed or has been executed. Fourth, the role of protest is different. The protest in the appeal procedure is put forward when the judgment or ruling of the court of first instance has no legal effect. As long as the protest is filed in accordance with legal procedures during the protest, the judgment of the first instance will not have legal effect and will inevitably enter the second instance. The protest of trial supervision procedure is mainly a kind of relief for the wrong judgment, and the procuratorial organ can only lodge a protest of trial supervision procedure for those effective judgments that are really wrong. The people's procuratorate protested in accordance with the procedure of trial supervision. 1. The people's procuratorate at a lower level shall report to the people's procuratorate at a higher level and lodge a protest with the people's court at the same level when it finds that the judgment or ruling of the people's court at the same level has become effective. 2. If the people's procuratorate at a lower level finds that the effective judgment or ruling of the people's court at a higher level is indeed wrong in ascertaining the facts or applying the law, it may report to the people's procuratorate at the next higher level to make a judgment or ruling in accordance with the procedure of trial supervision and lodge a protest with the people's court at the same level. 3. If the people's procuratorate at a higher level finds that the effective judgment or ruling made by the grass-roots people's court is indeed wrong in ascertaining the facts or applying the law, it may directly lodge a protest with the people's court at the same level or the people's procuratorate at a higher level that made the judgment or ruling. 4. If a people's procuratorate at a higher level directly discovers that a legally effective judgment or ruling has been made by a people's court at a lower level, and finds that the facts or the applicable law are indeed wrong, it may directly lodge a protest with the people's court at the same level. (3) Regarding whether the protest will inevitably lead to the retrial procedure, the people's court must accept and make a ruling on the protest filed by the people's procuratorate in accordance with the retrial procedure. As a special legal supervision organ of the state, the People's Procuratorate has been endowed with the right to directly file a retrial on the effective judgment or ruling by the Criminal Procedure Law. This is first decided by the people's procuratorate's own functions. The people's procuratorates exercise procuratorial power according to law and exercise legal supervision over criminal proceedings according to law. Its right of protest is a natural extension of the right of public prosecution. Both of these rights must include the content of legal supervision, otherwise the right of legal supervision will inevitably fail and the procuratorial power will be difficult to be complete. Therefore, in order to safeguard the interests of the state and the rights and interests of the parties, the procuratorial organs have the right to protest against the effective wrong judgment and immediately start a retrial. Secondly, the item 189 of the revised Criminal Procedure Law stipulates: "The people's court of second instance, after hearing the case of protest against the judgment of first instance, ruled that the original judgment found the facts and the applicable law correct, and the sentence was appropriate, dismissed the protest and upheld the original judgment." Obviously, this provision restricts the dismissal of the protest in the second instance to be carried out after the trial of the case is completed. We believe that the protest against judicial supervision should also be applicable. The court's decision to reject the protest should be based on a comprehensive review of the case and can only be made after a comprehensive trial of the facts of the case and the application of the law. Lawyer's recommendation: Beijing lawyer Shijiazhuang lawyer Hohhot lawyer Hangzhou lawyer
Legal objectivity:
Article 258 of the Criminal Procedure Law of People's Republic of China (PRC): 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 on remanding and 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.