Criminal proceedings are subject to the final instance system. After the second instance judgment is made, it is the final judgment.
Criminal second instance procedure:
1. Initiation of the second-instance procedure
(1) Protest
If the local people’s procuratorates at any level are dissatisfied with the first-instance judgment or ruling of the people’s court at the same level, they shall lodge a protest through the first-instance people’s court File a protest and send a copy to the People's Procuratorate at the next higher level.
The original people's court shall transfer the protest letter together with the case files and evidence to the people's court at the next higher level, and send a copy of the protest letter to the parties. If the People's Procuratorate at the next higher level considers that the protest is inappropriate, it may withdraw the protest to the People's Court at the same level and notify the People's Procuratorate at the next lower level.
(2) Appeal
If the defendant, private prosecutor, incidental civil action plaintiff and defendant file an appeal through the original trial People’s Court, the original trial People’s Court shall submit the appeal petition within three days. The case file and evidence will be transferred to the People's Court at the next higher level, and a copy of the appeal petition will be sent to the People's Procuratorate at the same level and the other party.
If the defendant, private prosecutor, plaintiff or defendant in an incidental civil action files an appeal directly to the People's Court of second instance, the People's Court of second instance shall transfer the appeal to the People's Court of first instance within three days. , served to the People's Procuratorate at the same level and the other party.
Note: Appeals may be made in writing or orally.
Second Instance Principles of Second Instance Procedure Principles of Second Instance Procedure Applicable laws are subject to a comprehensive review and are not limited by the scope of appeals or protests.
***If only some of the defendants in a case with the same crime appeal, the entire case shall be reviewed and handled together.
Substantial review refers to the second-instance People’s Court’s review of the following main contents of appeals and protest cases:
1. Whether the facts found in the first instance are clear and whether the evidence is reliable and sufficient , whether there is any contradiction between the evidence;
2. Whether the application of the law in the first instance is correct and whether the sentencing is appropriate;
3. Whether the investigation and prosecution are illegal, and whether the first instance procedure violates legal procedures ;
4. Whether the appeal or protest presents new facts and evidence;
5. The defendant’s confession and defense. The defendant’s confession and defense;
6. The defender’s defense opinions and their adoption;
7. Whether the judgment and ruling with the civil part is appropriate;
8. Opinions discussed by the collegial panel and trial committee of the court of first instance.
(2) Principle of non-increasing punishment on appeal
When hearing a case appealed by the defendant or his legal representative, defender or close relative, the people's court of second instance shall not increase the defendant's penalty. .
Where the People's Procuratorate files a protest or the private prosecutor files an appeal, it is not subject to the restrictions in the preceding paragraph.
If the people's court of second instance specifically applies the principle of not increasing penalties on appeal, it shall implement the following specific provisions:
1. *** In a case involving the same crime, if only some defendants appeal, the punishment will not be increased for the defendant who appealed, nor will the punishment for other co-defendants be increased.
2. If the facts found in the original judgment are clear and the evidence is indeed sufficient, but the crime is only inappropriate, the crime can be changed without increasing the original sentence.
3. If a defendant commits several crimes, the penalty shall not be increased without changing the original sentence, nor shall the penalty for one of the crimes be increased.
4. If the defendant is sentenced to criminal detention or fixed-term imprisonment and is suspended, the sentence originally suspended shall not be revoked, and the probation period shall not be extended.
5. If the facts are clear and the evidence is indeed sufficient, but the sentence is unusually light or additional penalties should be applied but are not applied, the first-instance judgment shall not be revoked, the defendant's penalty shall not be increased or additional penalties shall be applied, nor shall the facts be returned to the original trial on the grounds that the facts are unclear or the evidence is insufficient. The People's Court retried the case. If the sentence must be reduced in accordance with the law, a retrial shall be conducted in accordance with the trial supervision procedures after the second instance judgment or ruling takes effect.
In addition, *** in the same criminal case, if the People's Procuratorate can only protest the punishment of some defendants, the second-instance People's Court may not increase the penalties for other first-instance defendants.
Note: On appeal, the penalty cannot be increased, but the crime can be increased.
3. Second Instance Procedure
The People's Court of second instance shall form a collegial panel to hear appeal cases. However, if the collegial panel reviews the case files, interrogates the defendant, and listens to the opinions of other parties, defenders, and agents ad litem, and the facts are clear, the case may not be heard in court. When hearing appeals and protest cases, the people's court of second instance may hold hearings at the place where the case occurred or where the people's court of first instance is located.
****In cases of the same crime, if the first-instance defendant does not appeal or protest, he shall participate in court investigation and may participate in court debates.
In incidental civil litigation cases, if only the parties to the incidental civil litigation and their legal representatives appeal, the first-instance criminal judgment will become legally effective after the expiration of the appeal period. If a first-instance criminal defendant who should be delivered to prison for execution is a second-instance defendant with an attached civil lawsuit, he may be suspended until the second-instance attached civil lawsuit case is concluded.
When the People's Court hears appeals and protest cases, a collegial panel is composed of three to five judges.
The people's court of second instance may hear appeals and protest cases at the place where the case occurred or where the people's court of first instance is located.
IV. Results of the second instance
(1) Uphold the original judgment
1. When the People's Court of Second Instance hears cases of appeal or protest and believes that the facts found in the original judgment are clear, the law is applied correctly, the sentence is appropriate, and the reasons for the appeal or protest are untenable, it shall rule to reject the appeal or protest and uphold the original judgment.
The second-instance and second-instance courts believed that the first-instance verdict was an unusually light sentence, but due to the principle of no additional penalty on appeal from the original verdict, they should rule to uphold the original verdict.
(2) Change of sentence
1. If there is no error in the facts ascertained in the original judgment, but there is an error in the application of the law, or the sentence is inappropriate, the sentence shall be changed;
2. If the facts in the original judgment are unclear and the evidence is insufficient, the sentence may be changed after the facts are ascertained.
(3) Remand for retrial
1. If the facts of the first-instance judgment are unclear or the evidence is insufficient, unless the second-instance people’s court verifies through its own investigation or notifies the first-instance people’s court If the court directly changes the judgment unless the supplementary materials can be verified, the second-instance People's Court shall generally rule to revoke the original judgment and remand the case to the first-instance People's Court for retrial.
2. If the second-instance People’s Court believes that the trial of the first-instance People’s Court violated the legal procedures and any of the following circumstances occurs, it shall rule to revoke the original judgment and send it back to the first-instance People’s Court for a new trial. trial;
(1) Violating the relevant provisions of public trials;
(2) Violating the recusal system;
(3) Depriving or restricting the legal rights of the parties Litigation rights may affect the legal litigation rights of the parties and may affect a fair trial;