The reply of the Supreme People's Court Research Office on what procedure should be applied when the people's court at a higher level finds that the legally effective judgment of the people's court at a lower level is indeed wrong was published by the Supreme People's Court on 1994.03.04.
If the people's court at a higher level finds that the legally effective judgment of the people's court at a lower level is indeed wrong and decides to send it back for retrial, it shall conduct the trial in accordance with the provisions of Article 150 of the Criminal Procedure Law and the procedure of second instance, and the judgment and ruling made shall be final.
Circumstances that can be retried
According to the Criminal Procedure Law
Article 225 After hearing the case of appeal or protest against the judgment of first instance, the people's court of second instance shall handle it separately according to the following circumstances:
(a) the original judgment found the facts and applicable laws correct, and the sentence was appropriate, so the appeal or protest was rejected and the original judgment was upheld;
(two) the original judgment found that the facts were not wrong, but the applicable law was wrong, or the sentence was improper, and the judgment should be revised;
(3) If the facts in the original judgment are unclear or the evidence is insufficient, the judgment may be revised after the facts are ascertained; You can also make a ruling to revoke the original judgment and send it back to the people's court that originally tried it for a new trial.
If the defendant appeals or the people's procuratorate protests after the people's court of first instance has made a judgment on the case sent back for retrial in accordance with the provisions of the third paragraph of the preceding paragraph, the people's court of second instance shall make a judgment or ruling according to law and will not send it back to the people's court of first instance for retrial.
Article 227 If the people's court of second instance finds that the trial of the people's court of first instance violates one of the following legal procedures, it shall make a ruling to revoke the original judgment and send it back to the people's court that originally tried it for a new trial:
(a) in violation of the provisions of this law on public trial;
(2) Violating the challenge system;
(3) depriving or restricting the legal litigation rights of the parties, which may affect the fair trial;
(4) The composition of the judicial organization is illegal;
(five) other violations of the law, which may affect the fair trial.
Fuxin Municipal People's Government-People's Republic of China (PRC) Criminal Procedure Law
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