Many agents in retrial cases only pay attention to the mistakes in the judgments of the first and second instance, and do not fully communicate with the client, so they are not sure about the whole case and the background relationship. This is typical opportunism. To change an effective judgment, we should not only overthrow a legal building supported by existing evidence, but also build a new evidence system and legal reasoning. If the agent of a retrial case only sees a certain evidence of the original trial or problems in the application of the law, it will lead to the case-handling personnel being unwilling to communicate with the agent, being passive in the trial process, and even being questioned by the case-handling personnel in court, which will not have a positive impact on the retrial result. Retrial cases are generally held only once. For example, the trial of a case involves the personal information of many parties, and the agent is not prepared and understood. When the judge asked the agent in the trial, he knew nothing. Even if the judge thought that there were some problems in the original case, he could not enlighten and clarify the change of thinking through effective communication in the trial. For example, in an execution objection case, the agent chooses Article 28 of the Provisions on Reconsideration of Execution Objection. During the trial, the judge thinks that there is room for the application of Article 29 in this case, but asks you whether the house is the only house in the area for the parties concerned, but you don't know that the possibility of applying Article 29 to this case is nipped in the bud. If the efficiency of out-of-court communication is lower, it is difficult for the undertaker to allocate his energy to the case that has formed the preliminary judgment idea.
(B) "only broken but not established", not paying much attention to the analysis and reconstruction of evidence.
Many agents believe that the retrial case has gone through the first instance, the second instance or even more procedures, and has been given a lot of proof and cross-examination. With the basic file materials, there is no need to sort out the evidence of the whole case, and the submission, collection, classification and explanation of evidence are not paid attention to in the first instance. Many lawyers are obviously inferior to the first-instance cases represented by them in fact finding and mastering evidence. Extreme, did not fully understand the original trial file, retrial without key evidence, there is no evidence. This approach is too biased. Any legal issue is a matter of facts and evidence. Even if retrial only involves the application of law, it still involves the reorganization and re-understanding of facts. For example, if a private lending case enters a retrial because of the high interest rate, it can fully provide the fund current account at the time of the original trial, and can still reinforce the evidence at the time of retrial, and sort out the beheading interest and other contents through auditing, and the interest paid can be deducted from the principal. Not to mention the comprehensive analysis of various contracts, correspondence, project appraisal, audit and other evidence materials signed by both parties in the construction contract case. In addition, in practice, many agents attach importance to the evidence of this case and ignore the information related to this case, such as the signing time of the sales contract in this case, but the signing time of this series of houses has not been investigated and verified at all. This question seems to have little to do with this case, but the judge may want to prove the signing time of this contract by the signing time of other contracts. The legal person's pursuit of truth should be endless, not to mention a retrial case that wants to overturn the original judgment. Different investigators have different divergent thinking about the facts, so it is necessary to collect and analyze more evidence involved.
(C) "opinionated", do not understand the new changes in referee thinking
New laws, regulations and judicial interpretations generally do not apply to retrial cases. Article 2 of "Several Provisions of the Supreme People's Court on Effective Application Time" stipulates: "In civil disputes caused by legal facts before the implementation of the Civil Code, the provisions of laws and judicial interpretations at that time shall apply, except that the provisions of the Civil Code are more conducive to protecting the legitimate rights and interests of civil subjects, maintaining social and economic order and promoting socialist core values." Article 3 stipulates: "In the case of civil disputes caused by legal facts before the implementation of the Civil Code, the provisions of the Civil Code can be applied if there are provisions in the laws and judicial interpretations at that time, except that the legitimate rights and interests of the parties are obviously damaged, the legal obligations of the parties are increased or the reasonable expectations of the parties are deviated." In the same way, it is a basic principle to apply the effective law of the original trial to retrial cases, but if there is no legal provision in the original trial and there is legal provision in the retrial, the spirit of the new provision will inevitably affect the retrial of cases. Needless to say, the same law is often used, but the value orientation, interpretation path and rules have changed greatly, so we should pay close attention to it. For example, after the application of Article 16 of the Company Law was explained in Jiumin Minute and Civil Code, the court's interpretation of this article tended to be that the company did not provide the company resolution and the company did not assume the agreed guarantee responsibility. When the relevant cases are retried, we should attach great importance to the influence of this provision on the thinking of legal judgment, rather than simply emphasizing that the relevant provisions cannot be applied to this case. In addition, if we say whether Article 28 or Article 29 of the Objection Reconsideration Clause should be applied in the Supreme Court's judgment on the determination of the constitutive elements of Article 28 in the case of repeated resale, we need to think systematically, rather than just looking at Article 28 or Article 29. At this time, the case retrieval report (see abstract: how to make good use of the case retrieval report) can play a very good role, expand our thinking and review retrial cases with the times.