In addition, only if the evidence that the party has submitted in the original trial has not been cross-examined, but the original court uses it as the basis for the decision, the party can apply for a retrial based on the retrial reason of "the main evidence has not been cross-e

Abstract : my country’s civil litigation implements the principle of “two trials and final hearings”. As a trial supervision procedure, retrial is an appropriate supplement to the two trials and final trials. It is an unusual relief procedure with a relatively strict start-up procedure. According to the provisions of the Civil Litigation Interpretation, if a party can file a separate lawsuit to claim rights based on new evidence, it should not be allowed to apply for a retrial based on this. In addition, only if the evidence that the party has submitted in the original trial has not been cross-examined, but the original court uses it as the basis for the decision, the party can apply for a retrial based on the retrial reason of "the main evidence has not been cross-examined". Apply for retrial based on new evidence.

Beijing Docket Law Firm's dispute resolution team will conduct a comprehensive analysis of the grounds for retrial application under the new "Civil Procedure Law" and judicial interpretations, and provide detailed analysis of the grounds for retrial application by the parties based on relevant cases. Interpretation.

As one of the basic systems of civil litigation, the two-instance trial system is a concrete manifestation of my country's trial-level system. It means that under normal circumstances, a case will be concluded after being heard by the two-level people's courts. It can be seen that the retrial procedure, as an unusual relief procedure, takes the overturning of res judicata and limited error correction as its core functions. The delimitation of its scope of application must comply with the principles of strictness and prudence. The court will only meet the requirements of retrial. The case will be heard again only if the reasons are met. The mode of retrial procedure through parties filing retrial applications appears to be more difficult. Therefore, the issue of the parties’ reasons for applying for retrial is very important.

According to the provisions of Articles 199, 200 and 201 of the Civil Procedure Law, the parties shall, based on the right of action, dispute the effective rulings, judgments and mediations that violate the principle of voluntariness or the contents of the mediation agreement violate the law. The book can be applied for reexamination. The details are as shown in the figure below:

According to Article 200 of the "Civil Procedure Law", an application for retrial is filed within six months after the judgment or ruling becomes legally effective. The circumstances under which the court should retrial vary according to the issues involved in these circumstances. The following summary and division are made:

According to Article 205, there are the following: “(1) There is new evidence that is sufficient to overturn the original judgment or ruling; (3) The main evidence used to establish the facts in the original judgment or ruling is forged; (12) The legal documents based on which the original judgment or ruling was made have been revoked or changed; (13) The judges engaged in corruption, bribery, malpractice for personal gain, or miscarriage of justice when hearing the case." submitted within six months.

Next, we will combine with the latest judicial interpretations and relevant cases to conduct a relevant analysis of several common grounds for retrial applications in practice.

1. Regarding new evidence

Regarding whether “new evidence” should be admitted as stipulated in Article 200, Item 1, of the Civil Procedure Law, the Civil Procedure Interpretation has two articles concerning retrial of new evidence, namely Article 200. Article 387, Article 388.

Article 387: "If the new evidence provided by the applicant for retrial can prove that the basic facts or the results of the original judgment or ruling were wrong, it shall be deemed to be a situation specified in Paragraph 1 of Article 200 of the Civil Procedure Law. For cases that comply with the previous The people's court shall order the retrial applicant to explain the reasons for the delay in providing such evidence; if the applicant refuses to provide the evidence within the time limit or the reasons are untenable, the people's court shall order the retrial applicant to explain the reasons for the delay in providing the evidence; "

Article 388: "If the retrial applicant proves that the new evidence submitted meets one of the following circumstances, the reason for late provision of evidence may be deemed to be established: (1) It already existed before the end of the original trial, because The objective reasons were discovered after the end of the trial; (2) It was discovered before the end of the original trial, but could not be obtained due to objective reasons or could not be provided within the prescribed time limit; (3) It was formed after the end of the original trial and cannot be relied upon. If a separate lawsuit is filed, the evidence submitted by the applicant for retrial has been provided in the original trial, but the original People's Court did not organize cross-examination and did not use it as a basis for judgment, and the reason for late provision of evidence is deemed to be established. However, the original People's Court shall comply with Article 60 of the Civil Procedure Law. Except for those that are not admissible under the five provisions. "

According to the provisions of the above provisions, it can be seen that the establishment of new evidence is mainly considered from the following two perspectives:

It should be noted that according to the provisions of the Civil Procedure Interpretation, if the party concerned can file a separate lawsuit to claim rights based on new evidence, he should not be allowed to apply for a retrial based on this.This is because retrial, as a special relief procedure in civil litigation, should have stricter standards for starting than general litigation procedures. If the party concerned can obtain protection through regular rights relief channels, he should not be allowed to apply to initiate special relief procedures.

2. About the application of law

Although people always hope that legal provisions are clear and unambiguous when making legislation, legal provisions, as a category of social science, are sometimes not as clear as mathematical formulas or theorems. People often have different understandings of the semantics of legal provisions, and the content of legal provisions is relativistic or uncertain due to different understanding subjects. This often occurs in trial practice. Therefore, in cases where the legal relationship is complex and the validity of the contract or the determination of liability are inconsistent, it is very easy for the parties to file a retrial application on the grounds that the application of the law is indeed wrong. Article 390 of the "Civil Procedure Interpretation" provides more detailed provisions on the circumstances of erroneous application of law:

Article 390: "If any of the following circumstances lead to an erroneous judgment or ruling, it shall be determined as Article 390 of the Civil Procedure Law Item 6 of Article 200 states that there are indeed errors in the application of law in the original judgment or ruling: (1) The applicable law is obviously inconsistent with the nature of the case; (2) The determination of civil liability obviously violates the agreement of the parties or legal provisions; (3) The application Laws that have expired or have not yet been implemented; (4) Violate the provisions of legal retroactivity; (5) Violate the rules of application of law; (6) Clearly violate the original intention of the legislation. "

in [(2016) Supreme People's Court Civil Application No. 2347. In the case No.], the retrial applicant claimed that this case was a dispute arising from an entrustment contract. Yao Lin claimed rights against the trustees Lin Sanchun, Lin Zhijian, and Lin Zhiqiang based on the entrustment legal relationship. The second-instance judgment did not cite the legal provisions of the Contract Law regarding entrustment contracts. It is an error in applicable law. The court held that although the second-instance judgment was not comprehensive enough in citing legal provisions, it did not lead to an error in the judgment. Therefore, the reason for retrial cannot be established.

It should be noted that the process of 's application of the law is a subjective understanding process that gradually develops and changes. The understanding and application of the law during retrial should be considered based on the time and space when the legal relationship occurred. For example, the law during the financial crisis Relationships etc. If there is a conflict between the legal concepts and value orientations of the original judgment and the retrial review due to changes in time or other reasons, or there is an inconsistency in understanding due to unclear legal provisions, such applicable legal issues should be compromised as much as possible during the retrial review. Try your best to protect the original referee's res judicata.

3. Regarding the issue of cross-examination

When the main evidence for establishing facts has not been cross-examined as the reason for retrial, it is a reason related to both the evidence of the case and the procedural justice of the case. However, in practice, attention needs to be paid to distinguishing the reasons for retrial. The difference between applying for a retrial based on new evidence. Only if the evidence that the party has submitted in the original trial has not been cross-examined, but the original court uses it as the basis for the judgment, the party can apply for a retrial based on the retrial reason of "the main evidence has not been cross-examined" and not as a new Evidence application for retrial.

In addition, the retrial procedure, as a special relief procedure in civil litigation, should be initiated in response to the original trial judge's errors in determining facts, applying law, or litigation procedures. If the parties themselves are at fault for refusing to issue cross-examination opinions or failing to issue cross-examination opinions during the cross-examination proceedings, it should not be deemed that the original trial judge made an error in not cross-examining the main evidence in determining the facts of the case. Article 389 of the Civil Procedure Interpretation: “If a party refuses to express a cross-examination opinion in the original trial regarding the main evidence used to establish the facts in the original judgment or ruling, or fails to express a cross-examination opinion on the evidence during the cross-examination, it does not fall within Article 200 of the Civil Procedure Law. "The situation without cross-examination specified in this clause" is precisely the provision on this point.

In the [(2016) Supreme Court Civil Application No. 333] case, the retrial applicant believed that in the first instance, Dehong International Company failed to submit the ninth set of evidence materials in the case, namely the recording, to the court within the time limit specified by the court for producing evidence. The materials and the eleventh group of evidence materials are the description of the situation, but the above materials were submitted to the court during the first instance trial. Secondly, the court of first instance accepted the above-mentioned evidence materials without ordering Dehong International Company to explain the reasons for late production of evidence, and did not give Dehong International Company a reprimand or fine. Furthermore, the retrial applicant and the other two defendants in this case did not cross-examine the above two sets of evidence materials, and the first instance court directly adopted the above two sets of evidence materials, which clearly violated the legal provisions. The court held that according to the provisions of Article 65, Paragraph 2, of the Civil Procedure Law of the People's Republic of China, the People's Court has the right to decide whether to organize cross-examination of evidence provided overdue. If the People's Court decides to organize cross-examination, the other party shall The evidence shall be cross-examined. If the party refuses to cross-examine, it shall be deemed as a waiver of the right to cross-examine. In the first instance of this case, the retrial applicant Duan Dejin objected to the cross-examination of the ninth and eleventh groups of evidence involved in this case, namely the recording materials and the "Situation Description" submitted by Dehong International Company. This situation does not fall within the non-cross-examination situation stipulated in Article 200, Item 4 of the Civil Procedure Law.

4. Issues about procedural justice

As a basic form of procedural norms, the Civil Procedure Law should embody procedural justice in the most concentrated way and ensure the realization of procedural justice. Therefore, if the necessary legal procedures are not implemented, it can become a cause for retrial to the court. The reasons for procedural retrial stipulated in the Civil Procedure Law include: the composition of the trial organization is illegal or the judicial personnel who should be recused in accordance with the law have not recused; persons without the capacity for litigation act on behalf of the litigants without legal representatives or parties who should participate in the proceedings , failing to participate in the litigation due to reasons that cannot be attributed to the person or his litigation agent; violating legal provisions and depriving the parties of the right to debate; making a default judgment without summons.

Among them, Article 391 of the Civil Litigation Interpretation describes the circumstances in which parties are deprived of their right to debate, including: “(1) The parties are not allowed to express their opinions in debate; (2) A trial should be held but is not; (3) ) Serving a copy of the complaint or appeal in violation of legal provisions, causing the parties to be unable to exercise their right to debate; (4) Other circumstances that illegally deprive the parties of their right to debate."

In the case [(2015) Minshen Zi No. 1116], the party applying for retrial believed that the second-instance court did not review the amount that was not part of the first-instance litigation and that was not cross-examined, depriving it of the right to present evidence and argue. The second court held that: both the first and second instance courts heard the case in public in accordance with the law, organized evidence and cross-examination around the parties’ defense claims, and issued debate opinions. There was no violation of legal provisions in not allowing the parties to express debate opinions or serving indictments and appeals in violation of legal provisions. The copy makes it impossible for the parties to exercise their right to debate, and there are no other circumstances that illegally deprive the parties of their right to debate. The applicant did not provide any evidence to prove that the first and second instance courts violated legal provisions and deprived him of his right to debate, so the reason for the application for retrial cannot be established.

5. Regarding the issue of over-award and omission of adjudication

Regarding this statutory cause for retrial, the "Civil Action Interpretation" has further clarified and refined it in Article 392, specifying that the "litigation claims" there do not only include those of the first instance. Litigation claims also include appeal requests from the second instance. However, if a party fails to appeal against omissions in the first-instance judgment or exceeds the litigation claims, he or she may not subsequently apply to the People's Court for a retrial based on the reasons for retrial in this article.

Since the retrial procedure is aimed at the relief procedure of the referee that has already taken effect, it is not easy to initiate a retrial. When the parties apply for retrial, they need to carefully select the reasons for retrial, and they need to focus on the detailed reasons in the "Interpretation of Civil Procedure" and the reasons that often appear in retrial cases. The dispute resolution team of Beijing Docket Law Firm has sorted out and summarized the above key matters in order to provide reference for parties in need.

Author: Dispute Resolution Team