Then, under what circumstances, will the procuratorial organ supervise by drawing a protest or retrial procuratorial suggestions?
We will give you a detailed introduction to the specific ways and circumstances of the procuratorial organs' supervision over the effective judgments.
According to the second paragraph of Article 93 of the Administrative Procedure Law of the People's Republic of China, if local people's procuratorates at various levels find that legally effective judgments, rulings and conciliation statements of the people's courts at the corresponding levels are subject to statutory retrial, they can put forward suggestions for retrial procuratorial work to the people's courts at the corresponding levels and report them to the people's procuratorates at higher levels for the record, or they can request the people's procuratorates at higher levels to lodge protests with the people's courts at the same level. Retrial procuratorial suggestions and protests are the supervision methods of the people's procuratorate at the same level. In practice, it needs to be clear how to distinguish between the two kinds of supervision methods: applying retrial procuratorial suggestions and filing protests. In order to give full play to the role of retrial procuratorial suggestions and reasonably distinguish the application of retrial procuratorial suggestions and protests, according to the characteristics of the two supervision methods, the new administrative litigation supervision rules distinguish the application of retrial procuratorial suggestions and protests, which is convenient for procuratorial organs to apply better in practice.
First, the application of supervision and retrial procuratorial suggestions
The local people's procuratorates at all levels can put forward suggestions for retrial to the people's court at the same level in six situations, such as refusing to file a case or dismissing the prosecution, having new evidence enough to overturn the original judgment or ruling, insufficient main evidence for ascertaining the facts in the original judgment or ruling, not being cross-examined or forged, and violating legal procedures, which may affect the fair trial.
For cases that meet the above requirements, local people's procuratorates at all levels should first consider putting forward retrial procuratorial suggestions to the people's courts at the same level, except for special circumstances stipulated in Article 89 of the new administrative litigation rules.
Two, the exception of the application of retrial procuratorial suggestions.
Local people's procuratorates at all levels shall lodge a protest with the people's procuratorate at the next higher level against the judgments and orders made by the people's court at the same level after retrial, the judgments and orders made by the judicial committee of the people's court at the same level after discussion, and other circumstances that are not suitable for the people's court at the same level to correct after retrial.
Third, the refusal certificate should be submitted.
If the laws and regulations applied in the original judgment or ruling are indeed wrong, and the judges commit corruption, bribery and malpractice in the trial of the case, the local people's procuratorates at all levels shall lodge a protest with the people's procuratorate at the next higher level.
Four, the supervision of administrative mediation
If the local people's procuratorates at all levels find that the legally effective administrative mediation written by the people's court at the same level harms the national or social public interests, they may put forward retrial and procuratorial suggestions to the people's court at the same level, or they may request the people's procuratorate at the next higher level to protest.
Case 1: All Hu's houses are adjacent to Zhou's two houses in the north and south. Hu claimed that when he bought a house, there was a terrace in the south and windows on the south wall. When he checked in, he found that Zhou's house had been built. 2065438+April 2008, Hu sued for canceling the registration of property rights of two houses in Zhoujia, and the court of second instance made a final administrative ruling No.257, refusing to file a case on the grounds that the litigation request was unclear and Hu had no interest in the sued administrative act. Hu's application for retrial was rejected. 2065438+June 2008, Hu sued another case to cancel the registration of houses on the west side of Zhou. The court of second instance made the final administrative ruling No.382, and refused to file a case on the grounds of repeated prosecution. Hu's application for retrial was rejected. Hu applied to the procuratorate for supervision.
After examination, the procuratorate believes that it is impossible to judge whether the windows on the walls of Hu's and Zhou's houses existed during the design and construction or were artificially dug later. According to the requirements of the filing and registration system, it should be recognized that Hu has an interest in the accused administrative act, and the court's ruling No.257 is wrong. However, the court found that ruling No.257 was wrong in the retrial procedure initiated by itself and revoked it. Therefore, the court's ruling No.382 was based on ruling No.257, and refusing to file a case was "the legal document on which the original judgment or ruling was based was revoked or changed". After the procuratorial organ put forward a retrial proposal for this case, it cooperated with the people's court to carry out mediation work, which led Hu to buy the house where Zhou lived, and the contradictions and disputes were successfully resolved.
Case 2: Zhang applied to the local labor and social security department for work-related injury identification, and the local labor and social security department made a decision not to identify it. Zhang refused to accept the lawsuit to the court, requested to cancel the decision not to recognize it, and ordered him to re-recognize the work-related injury. The court ruled that the above-mentioned decision not to be recognized was revoked, but it was not ordered to re-recognize the work-related injury. Zhang refused to accept the appeal and was rejected. After applying for retrial without the support of the court, he applied to the procuratorate for supervision.
After examination, the procuratorial organ believes that Zhang's claims include two claims: revocation of the decision not to identify work-related injuries and re-identification of work-related injuries. The judgment of the court of first instance did not make a judgment on whether to re-identify the work-related injury, and there were omissions in the litigation request. At the same time, the application of law in this case is wrong, so it is submitted to the people's procuratorate at the next higher level to protest. After examination by the people's procuratorate at the next higher level, a protest is filed with the people's court at the same level.
Legal express
Article 88 If the local people's procuratorates at various levels find that the legally effective administrative judgment or ruling of the people's court at the same level is under any of the following circumstances, they may put forward suggestions for retrial and procuratorial work to the people's court at the same level:
(a) there is indeed an error in not filing a case or dismissing the prosecution;
(2) There is new evidence enough to overturn the original judgment or ruling;
(three) the main evidence of the facts ascertained in the original judgment or ruling is insufficient, without cross-examination or forged;
(four) in violation of legal procedures, which may affect the fair trial;
(five) the original judgment or ruling omitted the claim;
(6) The legal document on which the original judgment or ruling was based has been revoked or changed.
Article 89 In case of any of the following circumstances, the local people's procuratorates at various levels shall lodge a protest with the people's procuratorate at the next higher level:
(a) the judgment or ruling made by the people's court at the same level after retrial;
(2) A judgment or ruling made through discussion by the judicial committee of the people's court at the same level;
(three) the people's court at the same level is not suitable for retrial and correction.
Article 90 Local people's procuratorates at various levels shall lodge a protest with the people's procuratorate at the next higher level if they find that the legally effective administrative judgment or ruling of the people's court at the same level is under any of the following circumstances:
(a) the application of laws and regulations in the original judgment or ruling is indeed wrong;
(2) A judge commits corruption, bribery, favoritism and malpractice, or perverts the law when trying a case.
During the trial of a case, a judge commits acts of corruption, bribery, bending the law and perverting the law, which refers to acts that have been confirmed by effective criminal legal documents or disciplinary decisions.
Article 91 If local people's procuratorates at various levels find that the legally effective administrative mediation written by the people's court at the same level harms the national interests or social public interests, they may put forward suggestions for retrial and procuratorial work to the people's court at the same level or lodge a protest with the people's procuratorate at the next higher level.
(Guidance: the Supreme People's Procuratorate No.7 Branch: Beijing Municipal People's Procuratorate No.3 Branch: Beijing Pinggu District People's Procuratorate)