The procedure of second instance in political litigation refers to the procedure that the people's court at a higher level tries the administrative cases of first instance made by the people's court at a lower level, and tries the appeal cases because of the parties' appeals before they become legally effective. According to the provisions of China's Administrative Procedure Law, administrative cases are tried by people's courts. Except for administrative cases under the jurisdiction of the Supreme People's Court, 1 trial is final, other administrative cases are final by two trials, that is, an administrative case ends after being tried by two people's courts.
The procedure of second instance, also known as the procedure of appeal trial or the procedure of final appeal, refers to the procedure that the people's court at a higher level hears the appeal cases brought by the parties in administrative litigation who refuse to accept the ineffective judgment or ruling of the first instance of the people's court at a lower level. The judgment or ruling made by the people's court on an administrative case of second instance is final, and the parties may not appeal again.
The procedure of second instance is not a necessary procedure for every administrative case. If a party to an administrative case of first instance thinks that his judgment is correct, or fails to file an appeal within the statutory appeal period, the procedure of second instance will not occur.
The connection between the second-instance procedure and the first-instance procedure;
1) The claims put forward by the parties in the first instance and the second instance are interrelated.
2) The litigation legal relationship in the procedure of second instance is the continuation and development of the litigation legal relationship of first instance, and the parties have not changed.
3) The purpose of the second-instance procedure is the same as that of the first-instance procedure, which is to correctly and timely handle administrative cases, protect the legitimate rights and interests of the administrative counterpart, and safeguard and supervise the administrative organs to exercise their functions and powers according to law.
4) The first-instance procedure is the premise and foundation of the second-instance procedure, and it is the continuation and development of the first-instance procedure. If the facts are clearly ascertained and the applicable laws are correct, the work of the second instance procedure will be easy, as long as the appeal of the parties is rejected and the original judgment is upheld. Otherwise, the people's court of second instance needs to revise the sentence or send it back to the people's court that originally tried it for retrial.
Time limit for ruling of second instance of administrative appeal:
Time limit for appeals in civil and administrative proceedings: the time limit for appeals against judgments is 15 days; The appeal period against this ruling is 10 days. According to the provisions of China's Civil Procedure Law, the time limit for a party who does not live in People's Republic of China (PRC) to appeal against the judgment or ruling of the first instance is 30 days. If he can apply for an extension, it is up to the people's court to decide whether to grant it or not.
In addition, if the parties delay the appeal deadline due to irresistible reasons or other legitimate reasons, they can apply for an extension of the deadline within 10 days after the obstacle is removed, and the people's court will decide whether to grant it. The appeal period shall be counted from the day after the parties receive the written judgment or ruling. If no appeal is made within the time limit, the judgment of first instance will take legal effect.
The procedure of second instance in administrative litigation:
When hearing an appeal case, the court of second instance shall first form a collegial panel. The collegial panel shall comprehensively examine whether the facts ascertained in the judgment or ruling of the court of first instance are clear, whether the applicable law is correct, and whether the proceedings are legal. The review is not limited by the scope of the appellant's suspension of the appeal and the content of the appeal. There are two ways to hear administrative litigation in second instance:
(1) written hearing. The written trial of the second instance is applicable to appeal cases where the facts are clearly determined by the first instance referee. If the court of second instance finds that the facts are clear after reviewing the files, appeals, pleadings and evidential materials submitted by the court of first instance, it may no longer summon the parties, witnesses and other participants in the proceedings to appear in court for investigation and verification, and make a judgment only after a written hearing.
(2) Holding a hearing. The court of second instance conducted the same trial as the first instance. It is mainly applicable to cases where the parties dispute the facts ascertained by the court of first instance, or think that the facts ascertained by the court of first instance are unclear and the evidence is insufficient.
Legal basis:
Article 90 of the Administrative Procedure Law of the People's Republic of China: If a party considers that a legally effective judgment or ruling is indeed wrong, it may apply to the people's court at the next higher level for retrial, but the execution of the judgment or ruling will not be suspended.
Article 92 If the presidents of the people's courts at all levels find that the legally effective judgments and rulings of their own courts are under the circumstances stipulated in Article 91 of this Law, or that mediation violates the principle of voluntariness or the contents of mediation documents are illegal, and they think that a retrial is necessary, they shall submit them to the judicial committee for discussion and decision.
Article 81 The people's court shall make a judgment of first instance within six months from the date of filing a case. If there are special circumstances that need to be extended, it shall be approved by the Higher People's Court. If the Higher People's Court needs to extend the trial of cases of first instance, it shall be approved by the Supreme People's Court.
Article 83 An administrative case subject to summary procedure shall be tried by a single judge and shall be concluded within 45 days from the date of filing the case.
Article 88 When trying an appeal case, the people's court shall make a final judgment within three months from the date of receiving the appeal. If there are special circumstances that need to be extended, it shall be approved by the Higher People's Court. If the Higher People's Court needs to extend the hearing of appeal cases, it shall be approved by the Supreme People's Court.
Article 91 The people's court shall retry the application of a party under any of the following circumstances:
(1) Refusing to file a case or dismissing the prosecution is indeed wrong.
(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) the application of laws and regulations in the original judgment or ruling is indeed wrong.
(five) in violation of legal procedures, which may affect the fair trial.
(6) Claims omitted from the original judgment or ruling.
(seven) the legal documents on which the original judgment or ruling was based have been revoked or changed.
(eight) the judge has corruption, bribery, favoritism, perverting the law in the trial of the case.
Article 205 of the Civil Procedure Law of People's Republic of China (PRC): If a party applies for a retrial, it shall submit it within six months after the judgment or ruling becomes legally effective; In case of any of the circumstances specified in Items 1, 3, 12 and 13 of Article 200 of this Law, it shall be filed within six months from the date when it knows or should know.