1. Procedural differences. After the second-instance court remands the case for retrial, it will be the first-instance trial. In other words, if the parties concerned are not satisfied with the judgment after remand for retrial, they can still appeal. If the second instance directly changes the judgment, the judgment will be valid according to the provisions of the two-instance final appeal system. If the parties are dissatisfied with the effective judgment, they can only safeguard their rights through trial supervision procedures. From a convenience point of view, it is naturally better to use other words directly. Sending a case back for retrial is equivalent to going through a new procedure, which is why some cases take three or four years. The parties can only wait more patiently for the proceedings.
2. Uncertainty of the results. The court of second instance remands the case for retrial, and the court of first instance shall form a collegial panel to conduct the trial. Although the judge has changed, it does not mean that the outcome will change. Some courts change the verdict after trial, and some courts still make the same verdict after trial. But if the second instance court changes its verdict, the result will inevitably change.
3. The requirements are different. Judging from the current situation, the proportion of second-instance courts upholding the original judgment is far less than that of remanding the case for retrial or changing the judgment. Generally speaking, if the first-instance court has no serious problems in determining the facts, the second-instance court rarely sends the case back for a retrial. Of course, some matters must be remanded for review. For example, the omission of the parties involved in the original judgment or the illegal default judgment seriously violated legal procedures. According to the judicial interpretation, serious violations of procedures mainly include illegal trial organization, insufficient judicial personnel who should be recused, failure to represent legal representatives in litigation, and illegal deprivation of parties’ right to debate.
According to previous judgments, the court often applies the relevant provisions of the Civil Code based on the evidence provided by both parties and then makes a judgment. If the evidence is conclusive and the legal provisions cited are correct, the verdict must be fair. If there is insufficient evidence or improper application of legal provisions, the verdict will be wrong. Because of this, if a party is dissatisfied, it can appeal or have a retrial. After hearing the case, the higher court may either uphold the original verdict, change the verdict, or return the case to the original court for retrial, which are all due procedures. There is no longer any need to uphold the original verdict. Why is there a revision of the sentence or a retrial?
Generally speaking, if the evidence provided by both parties is conclusive, there is not much difference between the two parties. One party just disagrees with the application of legal provisions. Or some of them have objections but the reasons are not sufficient. This situation can be corrected by a higher court without the involvement of the original defendant. In such cases, the sentence may be modified in accordance with appropriate legal provisions. Once the appellant has objections to the evidence provided by the other party and needs to investigate and collect evidence, the case will be sent back to the original court for a retrial due to insufficient manpower in the superior court.
Give a simple example. Party A owes Party B money, and there is an IOU and evidence. Party A believes that the interest calculation is wrong and should not bear so much interest. This case will not be remanded for review. If A raises the claim, he will actually owe N yuan in the middle. And new evidence is produced, which requires re-investigation and implementation. This may be remanded for reconsideration.
I have been involved in two lawsuits. A friend in the public security, procuratorate, and law only heard this from hearsay. It is for reference only.
First, the consequences are different. Sending the case back for retrial means that the case is not over yet, and the first-instance procedures that have been completed will have to be overturned and restarted. As for whether to go through a second trial again, it depends on whether the opposing parties in the trial appeal or protest after the first trial verdict.
Remanding the case for a new trial means that a trial will never be effective. As far as civil cases are concerned, the second-instance ruling does not involve the ruling on the substantive rights of the lawsuit, which is good for parties who want to delay time (such as debtors), but not necessarily bad for parties who want to protect their rights as soon as possible (depending on the specific case). In a criminal case, whether the defendant has committed a crime or not, the sentencing is uncertain. He remains a suspect, not a criminal. But the painful Long March process has to be experienced again.
Direct modification of judgment means that the trial procedure of the case has ended, the legal document of modification of judgment directly produces the legal effect of the judgment, and the rest is the issue of execution procedure. On the positive side of the second-instance judgment, a stone has finally fallen. On the negative side, the second-instance judgment means that the possibility of a comeback can only be pinned on the extremely difficult retrial procedure (the probability of starting is extremely low).
The second is the statutory application situation, that is, the reasons or constraints are different. Whether it is the Civil Procedure Law, the Criminal Procedure Law or the Administrative Procedure Law, they all clearly stipulate the statutory circumstances for direct modification of the sentence and remand for retrial.
1. In civil or administrative cases, if the original judgment or ruling contains errors in the determination of facts or the application of law, the judgment shall be revised, revoked or changed in accordance with the law;
2. In criminal cases, the original judgment or ruling must be made in error If there is no error in the facts, but there is an error in the application of the law, or the sentence is inappropriate, the sentence should be changed;
3. Regardless of civil cases, administrative cases, or criminal cases, if the original judgment finds that the basic facts are unclear, it can be remanded for retrial. , or the sentence can be changed directly;
4. In civil and administrative cases, the first-instance procedure seriously violated the law (mainly referring to the inaction of the parties and violation of the default judgment), and the remand was retried; criminal cases do not seem to pay much attention to procedure. , and there are no relevant regulations.
5. Regardless of civil cases, administrative cases, or criminal cases, cases that have been sent back for retrial will not be sent back for retrial until the second instance.
3. Extensive and profound writing and exploration of discretionary space. Judging from the provisions of the three major procedural laws, it is clearly stipulated that cases that must be remanded for retrial are serious violations of procedures in first-instance civil and administrative cases. , there is only one situation in which a case cannot be remanded for retrial, that is, a case that has been remanded for retrial. In other cases, the case can be remanded for retrial, or the sentence can be changed directly without remanding.
Perhaps some people really disagree with my statement and will point out that the relevant provisions of the Civil Procedure Law and Administrative Procedure Law are not clearly defined. If the original trial made an error in determining the facts or made an error in applying the law, the judgment was directly changed, revoked or changed; the Criminal Procedure Law clearly stipulates that if there is no error in the determination of facts, a court error shall be applied. Should this sentence be changed? ! Should the sentence be changed, that is, should it be sent back for a new trial?
But in reality, if you have the courage to ask this if you are young and energetic, you can only hehe.
The law is very cunning, so it can teach people bad things.
Isn’t it popular in the West that lawyers rarely go to heaven?
In fact, Chinese judges and Western lawyers are equal before God.
I just make a few points in good faith:
1. Regardless of judicial interpretations, as far as the relevant provisions of the Civil Procedure Law and Administrative Procedure Law are concerned, the word "should" is not used.
2. The Criminal Procedure Law clearly stipulates "should". Has the legal community reached a consensus that "should" is equivalent to "the sentence must be changed and cannot be remanded for a new trial"?
3. What matters is whether the original trial was wrong, whether it was a simple error in the application of the law or a simple error in the determination of facts. Is it really clear? A basic fact has been made clear, but is the characterization accurate and will it not affect the application of the law?
4. What is even more confusing is, what is factual error and what is factual ambiguity?
Isn’t unclear facts just wrong facts?
Can factual errors be called factual errors?
There is a lot of knowledge here!
Where there is broad and profound knowledge, wise lawyers can find room for discretionary operation.
Therefore, the Supreme Court’s judicial interpretations are issued one after another, and they can never effectively restrict the inner impulses of judges.
Because people are alive.
4. Practical reasons for remanding for retrial or directly changing the judgment. Except for a few cases due to procedural reasons, it can be seen from the ruling that the reason for remanding for retrial is always "unclear facts."
The true cause of each case will probably always be a mystery to outsiders, including the parties involved.
There is a common sense that needs to be corrected, I’m afraid. Many people believe that remanding the case for retrial will have less impact on the original judge than directly changing the sentence. Therefore, in order to take care of the feelings of the lower judges, the second-instance judge will remand the case for retrial instead of directly changing the sentence.
No! At least in the evaluation of judges in many courts, the penalty for remanding for retrial is heavier than the penalty for commutation.
So, in this context, why do we often see cases being sent back for retrial?
Possible reasons are:
1. Serious illegality in civil or administrative case procedures;
2. The facts of the case are obviously unclear and a confusing account. The second instance It is more difficult to find out, and the second-instance judge does not want to pay such a fee;
3. The social background of some cases is too complex, and the second-instance judge is unwilling to intervene in their interests, or is afraid of trouble and is unwilling to shoulder the burden. Take responsibility and resist risks. Many criminal cases should have been acquitted, but grassroots judges could not withstand various pressures and deliberately made obviously wrong judgments. This is typical. They expect the higher court to help them shoulder the burden and directly change the sentence, because the higher court is a bit old.
But the second-instance judge was also timid and no more stupid than the first-instance judge, so he kicked the ball and threw the case back.
In an interview with reporters, Professor Chen Ruihua of Peking University Law School gave a special explanation as to why judges dare not acquit. Interested friends can search it.
4. Other reasons.
Some people may ask, why do some cases have to be sent back for retrial and the sentence directly changed?
Based on the above, tell me, apart from cases that seriously violate procedures, what other cases really need to be remanded for retrial?
As for why cases that can be remanded for retrial are not remanded, the possible reasons are:
1. The second-instance judge must responsibly consider the parties and avoid litigation;
2. There are concerns including but not limited to the third reason mentioned above, and the case is requested to be remanded for retrial;
3. Other reasons.
Being an official is difficult, being a judge is even harder, and being a judge with a clear conscience is even harder!
It is difficult to be a human being in the world of mortals. It’s hard for me to answer Wukong’s question!
Only bliss is my hometown!
Amitabha!
I'm not sure. Did I answer this question clearly?
The decision is in your hands!
Comments welcome!
What is the difference between a higher court’s remand and a direct change of sentence?
In many cases, the actual facts are not complicated. As long as the judge carefully bases the case on the facts and takes the law as the criterion, it is easy for the judge to make a fair and just judgment. However, some judges want to make the mysterious boundaries unclear and force the parties to appeal, retrial, and protest, which innocently increases the litigation burden on the parties and wastes judicial resources. Similarly, since the case has reached the higher court, the higher court should hear the case properly and make a fair decision in accordance with legal procedures. Some cases have to be remanded for retrial, which also increases the litigation burden on the parties and wastes judicial resources. At the same time, it also makes the case confusing and has to start all over again. This in itself is disrespect for the law. Therefore, the parties to such cases should establish the facts and seek the support of the court. (If you have any questions about the case, please send me a private message)
A case sent back for retrial by a higher court may have the following problems.
First of all, there may be procedural problems. The case-handling procedures must be legal! Procedural justice is important! Secondly, adapting to the law can be problematic! Sometimes the carelessness of a case handler can lead to differences in applicable laws or regulations! Then there may be something wrong with the verdict! Light or heavy etc! As long as there is a problem in one of the above three situations, the higher court must remand the case for retrial according to law! Cases sent back for retrial must be retried by the collegial panel!
In cases where the superior court directly changes the verdict, the verdict is usually just an inappropriate result! So the higher court directly changed the sentence! Improve trial efficiency! Trial efficiency is also an important part of fairness and justice!
There are two forms: remand for retrial and direct modification of sentence. As far as the case is concerned, the problem of remanding for retrial is relatively much bigger! Much more serious! And it directly affects the "first evaluation" or "excellent evaluation" of the case handler's work for a year! It's an "accident"! Modifying the case directly is obviously much smaller! It may also be the difference in the understanding of "discretion", or the difference in the processing capabilities of the upper and lower courts!
Remand for retrial means that the superior people's court believes that the original judgment applied the law incorrectly, the facts are unclear, the evidence is insufficient, and is inconsistent with the trial procedures, which affects the correct judgment. It needs to be remanded for retrial to facilitate error correction.
Direct modification of judgment means that the superior court finds that the effective judgment of the lower court is inappropriate and unfair, the facts of the case need to be retried, and the facts are clear, the reasons are sufficient, the evidence is sufficient, and the statements are conclusive, or the lower court is crazy and illegal, The causes of favoritism and malpractice are complex and the relationship is subtle, so the sentence should be changed directly to facilitate the principles of openness, justice and fairness, and to safeguard the rights and interests of the parties and legal dignity.
First, the superior court remanded the case to the original People's Court for retrial, mainly because the basic facts of the original judgment were unclear or the original judgment omitted the parties or seriously violated legal procedures.
1. The basic facts ascertained in the original judgment were unclear. For example, in a private lending dispute case, the plaintiff transferred 654.38 million yuan to the defendant through a bank. The defendant, a project manager of a company, issued an IOU and it was signed by the borrower. The plaintiff sued to require the defendant to repay the loan, and the defendant made a first-instance judgment to repay the principal and interest of the loan. The defendant was dissatisfied with the first-instance judgment and filed an appeal. At the same time, he submitted the details of the flow of funds as evidence, arguing that the borrowing was used for the company's capital turnover and that borrowing money by himself was an official act.
If the second-instance court believes that the borrower's facts are unclear in the original judgment, it shall rule to revoke the original judgment and remand the case to the original People's Court for retrial.
In judicial practice, the original judgment of some cases clearly identified the facts, applied the law correctly, and the defendant was also clear about it. However, the second instance held that the basic facts found in the original judgment were unclear and sent the case back for retrial, resulting in the plaintiff's victory being artificially delayed.
2. The original judgment seriously violated legal procedures. 1. The original judgment omitted the parties involved, including the plaintiff and the defendant. The party concerned was absent from the court hearing because he did not understand the litigation matters, and his litigation rights were deprived. For example, the deceased had both legitimate and illegitimate children, and the legitimate children concealed the existence of the illegitimate children when suing for inheritance and division of the deceased's estate. If the illegitimate children of the deceased apply to participate in the second-instance procedure after learning of the first-instance judgment, the second-instance mediation fails and the case is remanded for retrial. 2 Default judgment is illegal. The defendant was absent from the first instance hearing because he failed to serve the defendant legal documents in accordance with the law. In a private lending dispute case in a certain city, the lender concealed the borrower's actual address and specific contact information when suing. The court failed to serve the legal documents for the lawsuit at the borrower's household registration address provided by the plaintiff, and eventually served it to the People's Court.
2. The superior court modifies, revokes or changes the case in accordance with the law, mainly because the original judgment or ruling was wrong in determining the facts or wrong in applying the law.
1. The original judgment or ruling determined the facts incorrectly. For example, in an intentional injury case, parties A, B, and C had a dispute, and A and B had a physical conflict and were injured. Party B's injuries were identified as minor injuries. The first instance found Party A to be guilty of intentional injury, and the second instance found Party B's fracture to be an old injury. The original trial verdict that Party A caused minor injuries to Party B was a factual error, and Party A was acquitted according to law.
2. Wrong application of law. For example, in a case of intentional injury, the relationship between Party A and Party B has been tense for a long time. After a conflict occurs between Party A and Party B, they always hit Party B with their bicycles. The first instance found Party A to be guilty of intentional injury, and the second instance found that Party A did not intentionally beat Party B. The original judgment found that Party A intentionally caused Party B minor injuries was an error in the application of the law, and Party A was found not guilty according to law.
Lawyer Zhu Xiaoping:
A more realistic statement is that directly changing the sentence means letting others directly tell you the mistakes that exist in you. To remand for reexamination means to quietly tell you your mistakes and allow yourself to correct them. It's that simple and realistic.
A direct change of the verdict means that the original verdict was misjudged, and miscarriages of justice must be held accountable. Therefore, in practice, direct corrections are rarely made, unless it is a repetition, and no correction is made after the case is remanded for reexamination.
The court must also consider its own people. Once a case is remanded for retrial, it is really common, and there will be countless remands. A very simple case has been delayed for a long time because it is inextricably linked to the court. After appeal, the case was remanded for retrial, and after retrial, the appeal was remanded for retrial. Those who suffer the most in this process are the parties involved in the conflict and dispute.
In order to avoid this trial pattern similar to a rolling wheel, the law has been modified accordingly, that is, no more than two retrials can be remanded. Excluding this number, it is actually once. If the error is not corrected after remanding for retrial, the sentence can be changed directly on appeal, because no one wants to wake up a person who is pretending to sleep.
The rule of law is a sacred mission that each of us should aspire to and believe in. May the law become more fair and just.
It is illegal to remand for retrial in the first instance procedure. For example, the trial organization is illegal and the parties are not notified to appear in court. The judgment is directly changed because the facts of the first instance were unclear or clear, but the application of the law was wrong, resulting in an incorrect judgment. The judgment can be changed after the facts are ascertained.
Take a case that @fayanscan is representing. The case has been remanded for retrial for the second time. It is said that it can only be sent back once, but such a wonderful second time it was sent back for re-examination, but I encountered @法eyescan.
The plaintiff is the actual builder of a project. After the general contractor won the bid, the general contractor subcontracted the entire project to an unqualified company. The company divided the project into four bid sections and awarded the contract to four actual construction parties. The plaintiff was responsible for the construction of the second bid section. square.
Since the plaintiff did not sign a construction contract with either a subcontractor or a general contractor, it targeted the general contractor of the state-owned unit when suing, believing that it had formed a factual relationship with the general contractor. The construction contract requires the general contractor to pay for the project.
The first-instance judgment supported the plaintiff’s claim. After the general contractor appealed, the provincial court held that the facts of the first instance were unclear and remanded the case for retrial.
After being sent back for retrial, the plaintiff had no choice but to focus on the subcontracting company, but required the general contractor to bear joint liability for compensation.
The subcontracting company admitted that it had formed a de facto construction contract relationship with the plaintiff, but believed that it was a labor subcontracting rather than engineering construction.
The court of first instance believed that it was a labor contract, but the plaintiff insisted that it was a construction contract and did not apply for labor contract appraisal. Therefore, the court of first instance held that it constituted a labor contract. However, because the plaintiff did not apply for judicial appraisal of labor services and there was insufficient evidence, the original trial was dismissed. Apply.
After appealing, the plaintiff applied for a second-instance labor contract appraisal, and the provincial court returned the decision.
Up to now @法eye scan is still waiting for trial.
To sum up: The remand was mainly due to procedural issues and the facts were unclear. The direct change of sentence was because the law was improperly applied in the first instance!