Jingsh lawyers have long focused on the litigation activities of the Supreme People's court, including criminal and civil appeals, appeals, retrial and death penalty review. In April 2008, the revision of the new civil procedure law raised the civil retrial from civil rights to procedural rights, thus increasing the judicial supervision of the Supreme People's Court on the trial activities of courts around the world, and playing a positive role in maintaining judicial justice. The British lawyer team, taking advantage of its own advantages, has in-depth research on the appeal procedure, retrial filing standard, case trial process and trial ideas of the Supreme People's court. Combined with rich litigation practice and case analysis, it can help customers to comprehensively analyze and summarize the effective judgment, put forward the best entry point, and make the retrial of the Supreme Court truly become the pursuit of judicial justice by the parties The last guarantee of positive is to safeguard the interests of customers to the maximum extent.

1. What are the core concepts of the new civil procedure law and the core problems to be solved?

2. What retrial cases should the people's court apply for

3. The supreme law promulgated several opinions on accepting and reviewing civil application retrial cases to standardize the detailed procedures of civil application retrial case review

4. Analysis of civil retrial procedure

5. Legal points and difficulties of civil retrial cases

(L) increase the three kinds of rulings, such as processing according to withdrawal application, to improve the normalization of review results

(2) the principle of bringing a higher court for retrial

(3) the court shall accept the retrial application within 5 days if it meets 4 conditions

(4) the subject who enjoys the right to apply for retrial shall have retrial interests

(5) the application for retrial shall not be examined for reasons not claimed by the applicant

(6) there are four ways to review the application for retrial

(7) two lawsuits in one case shall not be accepted as retrial application

6. Model civil retrial application

How to write a civil retrial application

8. On the understanding of "new evidence" in civil retrial procedure from a case

9. Form and substance examination of division of labor in the establishment of one office and two offices of the Supreme People's court

1. What are the core concepts of the new civil procedure law and the core problems to be solved?

When the revised civil procedure law was formally implemented on April 1, 2008, the two important problems to be solved are the difficulty of appeal and execution. During the fifth session of the Tenth National People's Congress, 30 deputies to the National People's Congress, including Changjiang Bixin, then the court of Hunan Higher People's court, proposed the bill on Amending the civil procedure law to solve the problems of "difficult implementation" and "difficult appeal", and proposed the draft amendment to the civil procedure law. On the basis of the proposal, the Legislative Affairs Committee of the Standing Committee of the National People's Congress absorbed the opinions of other representatives on the proposal, considered expert suggestions, studied and revised the above-mentioned amendment of the civil procedure law with the internal affairs and judicial committee of the National People's Congress, the Supreme People's court and the Supreme People's Procuratorate for many times, and finally passed the above-mentioned amendment of the civil procedure law. At the end of 2007, Jiang Bixin returned to the post of vice president of the Supreme People's court, in charge of the trial supervision of the national courts.

One of the core reform ideas of the new civil procedure law is to establish retrial action. The so-called retrial action, simply speaking, is to promote the appeal right stipulated in the Constitution and the appeal right of the parties to the effective judgment to a kind of litigation right. Therefore, the so-called right of appeal is further defined as the right to apply for retrial in the amendment of civil procedure law. Just like the right of first instance and the right of second instance, as long as the application for retrial meets the legal conditions, the people's court shall accept it within 5 days, so as to solve the problem of the difficulty of filing the previous appeal. Moreover, since the application for retrial is regarded as a specific lawsuit against the effective judgment, the specific lawsuit should be handled with due process. Therefore, the amendment to the civil procedure law and the judicial interpretation of the trial supervision procedure further clarify that in principle, the higher court that makes the effective judgment will accept the retrial application, so as to avoid the phenomenon of mutual prevarication between the higher and lower courts; clarify the requirements of the retrial application, which becomes one of the legal litigation documents; stipulate that the retrial application of one party shall be Timely notification to the other party's respondent not only equally protects the counterplea rights of the other party, but also increases the transparency of the review and handling of the application for retrial case; clarifies the review period of the application for retrial case (in principle, three months), so as to ensure that the application for retrial case can be concluded quickly; clarifies the requirement of closing the case by ruling, and eliminates the previous notification method The unilateral rejection of the applicant's request makes the application for retrial more distinctive.

2. What retrial cases should the people's court apply for

When a party applies for retrial, if one of the following conditions is met, the retrial shall be conducted:

(1) there is new evidence sufficient to overturn the original judgment or ruling;

(2) the basic facts identified in the original judgment or written order are lack of evidence;

(3) the main evidence of the facts ascertained in the original judgment or written order is forged;

(4) the main evidence of the facts ascertained in the original judgment or order has not been cross examined;

(5) where the parties concerned are unable to collect the evidence needed for the trial of a case on their own due to objective reasons and apply in writing to the people's court for investigation and collection, but the people's court fails to investigate and collect the evidence;

(6) there is a definite error in the application of law in the original judgment or written order;

(7) the jurisdiction is wrong in violation of laws and regulations;

(8) the composition of the judicial organization is illegal or the judicial personnel who should be avoided according to law have not avoided it;

(9) a party who has no legal capacity to take part in the proceedings without his legal representative or who should take part in the proceedings, fails to take part in the proceedings due to the reasons that cannot be attributed to himself or his agent ad litem;

(10) depriving the parties of their right to debate in violation of the provisions of the law;

(11) making a judgment by default without summons;

(12) where the original judgment or ruling omits or exceeds the claim;

(13) the legal document on which the original judgment or order was made has been revoked or changed.

If the violation of legal procedures may affect the correct judgment or order of the case, or if the judicial personnel embezzle, take bribes, engage in malpractices for personal gain, or bend the law in the trial of the case, the people's court shall retry the case.

How to grasp the examination degree of the application for retrial. In the trial supervision system reform pilot process, there have been so-called "litigation must be handled", "lenient in and strict out", "strict in and strict out", or so-called "possible error" or "true error" different retrial start-up standards for whether the application for retrial should be ruled into retrial. After the implementation of the retrial procedure of the new civil procedure law, unless the retrial is initiated on the basis of providing "new evidence" and the retrial must meet or be reviewed enough to overturn the standard of the original judgment, any application for retrial shall be determined if it is established. In principle, whether the application for retrial is established necessarily leads to the final change of judgment shall not be linked with whether the retrial is initiated. Therefore, whether the so-called "lenient in and strict out", "strict in and strict out", "possibly wrong" or "indeed wrong" should also be considered as the review standard of the application for retrial.

3. The supreme law promulgated several opinions on accepting and reviewing civil application retrial cases to standardize the detailed procedures of civil application retrial case review

After the promulgation and implementation of the new civil procedure law, Liu Xuewen, President of the filing division of the Supreme People's court, admitted in an interview with reporters that there are still some problems in the work of accepting and reviewing the application for retrial, such as the low efficiency, the lack of uniform application standards for retrial matters, and the lack of clear review procedures, which need to be solved as soon as possible. Therefore, on May 19, 2009, the Supreme Court issued several opinions on accepting and reviewing civil application retrial cases, strengthening the protection of the parties' right to apply for retrial from seven aspects.

It clearly defines the necessary content, number of copies and other necessary litigation materials of the retrial application, which facilitates the parties to prepare the retrial application materials and reduces the unnecessary litigation costs;

Require the people's court to stamp the receipt seal on the list of application materials for retrial and return it to the parties, so that the time of application for retrial and the content of the submitted materials are well documented;

Provide confirmation of service address for the retrial applicant and the respondent to ensure that the parties can receive the litigation documents in time and know the litigation process;

It is required that a notice of acceptance and a copy of the retrial application must be sent to the qualified retrial application according to law, and the applicant shall be informed of the unqualified retrial application in a timely manner;

For the retrial application cases not under the jurisdiction of the court at the same level, it is required to timely inform the parties to apply to the court at the next higher level while doing a good job of interpretation;

We should appropriately expand the scope of the hearing cases, standardize the hearing procedures, and protect the rights of the parties to cross examine and state their opinions;

It also details the review procedure of the other party's application for retrial in the review procedure, and equally protects the rights of both parties to apply for retrial.

Several opinions on accepting and examining civil retrial cases strengthen the protection of the right to apply for retrial. A series of detailed provisions have been made in the aspects of material acceptance, review process guidance, and hearing the opinions of the parties, so as to ensure that the submitted materials are received, the review process is guided, the opinions are heard, and the ruling documents are delivered in a timely manner.

The people's court's acceptance and review of judicial acts has been standardized. In order to ensure that there are rules to follow in the process of acceptance and examination, and to protect the rights of the parties in all aspects, detailed provisions have been made in the aspects of standardizing the acceptance behavior, standardizing the examination procedure, standardizing the ruling documents, standardizing the determination of the retrial court, standardizing the form and content of the litigation documents, etc.

The procedure of accepting and examining has been improved. The conditions and scope of application for retrial have been clarified. Generally, the scope of reviewing the application for retrial should be limited to the cause of retrial. If it is found that there is a mistake in the effective judgment during the review process, the retrial can be initiated according to the provisions of article 177 of the civil procedure law; the review method is defined, including four review methods: reviewing the written materials, reviewing the original trial files, asking the parties and organizing the hearing; and the party who adjusts the files is defined Law, that is to say, adopts flexible and diverse ways of filing; clarifies the principle of retrial, reaffirms the principle of retrial by the court at the next higher level determined by the judicial interpretation of retrial, and stipulates that the retrial of procedural matters can be ordered by the court of first instance as the main situation of retrial.

4. Analysis of civil retrial procedure

In the trial practice, the retrial case should go through three stages: registration, appeal review and retrial. From the reception registration filing review is called the registration filing stage. Review from filing to retrial is called review stage, because the vast majority of the parties are appealing and applying for retrial, which is also called appeal review stage. The procedure used in this stage is called appeal review procedure. After the retrial is put on file, the retrial starts until the case is closed, which is called the retrial stage, and the procedure used in this stage is called the retrial procedure.

Registration and filing stage. Before registration, the appeal and application for retrial shall be reviewed simply, whether they are appeals for effective judgment, whether they are under the jurisdiction of the court, and if they do not meet the above two conditions, the party concerned shall be informed to deal with them to the court with jurisdiction or other courtrooms of the unit, without registration. Those who meet the requirements must be registered, and after registration, they will be examined before filing, mainly to inquire about the basic information of the complainant, the reasons for the appeal and relevant materials. The preliminary conclusion is that there is a mistake in the original effective judgment, or there is no obvious mistake, but if there is a need for further examination, it needs to be filed for examination. For filing examination, fill in the filing examination form and submit it to the president in charge for approval. The complaint materials, relevant evidence and registration examination form shall be transferred to the appeal collegial panel for handling.

After the right of retrial is established in the civil procedure law, in the past, all the legitimate appeal cases of effective judgment are incorporated into the application for retrial to solve, and have strict procedural requirements such as filing, review and time limit. The review of the court's retrial action must be separated from the response to general letters and visits. The court can no longer mix the proper retrial application with the general letters and visits. They have different procedures, directions and measures.

Appeal review stage. In addition to the above-mentioned cases that have been decided to be filed for review, there are also cases assigned by the relevant authorities, those assigned by the superior court, and those approved by the leaders of the court (including those requiring review on the reception instructions of the president on the reception day). As for the protest of the people's Procuratorate, the people's court at a higher level only registers the retrial formalities and does not conduct a detailed review. The content of the review shall be reviewed in accordance with Article 179 of the civil procedure law and the provisions of the relevant judicial interpretation. In the light of what is reviewed in the complaint, there are both procedural review and substantive review. If the conditions for retrial are not met, the case should be put on file for retrial, and the extent to which the retrial should be changed. The way of examination is material examination. If there is a choice, the hearing of the collegial panel will be used for examination. Obviously, a conclusion can be made on the basis of the complaint materials and relevant evidence. In general, it needs to be transferred and examined. If necessary, a small amount of investigation can be carried out. The appeal shall be rejected in the notice of unreasonable decision to maintain the original judgment; if the appeal is reasonable, the people's court at a lower level shall be ordered to make a retrial with a written order, put on trial or instruct the people's court at a lower level to make a retrial. The task at this stage shall be handled by the filing court.

Retrial stage. For a retrial case, the original effective judgment is the applicable first instance procedure of the first instance and the applicable second instance procedure of the second instance, which should be heard in court. The law stipulates that the public hearing shall be held in public. The task at this stage shall be handled by the trial supervision tribunal.

After the implementation of the amendment to the civil procedure law, there is an urgent need for the higher court to increase institutions and personnel. At present, some higher courts apply for the establishment of filing and trial supervision institutions. For example, Beijing and Shanghai high court set up appeal review court respectively; Heilongjiang and Anhui high court set up two record courts respectively; Liaoning high court set up three record courts; Hubei high court set up two record courts and three trial supervision courts; Jilin high court set up two record courts, one retrial record court, two retrial record courts and two trial supervision courts. At the same time, according to the legal characteristics of the three stages of application for retrial: case filing, case review and retrial, local high courts actively adjust the functional division mode of application for retrial case review and retrial case trial, so as to further reasonably allocate judicial resources and increase the trial intensity of application for retrial and other cases.

According to the preliminary understanding, there are six modes at present: one is the mode of acceptance and examination by the filing court, the mode of trial by the trial supervision court; two is the mode of examination by the special organization; three is the mode of registration by the filing court, examination by the civil courts, and trial by the trial supervision court; four is the mode of registration by the filing court, examination and trial by the civil courts, and retrial by the functions and powers of the trial supervision court; five is the mode of registration and examination by the filing court, and trial supervision by the civil courts Six is the mode that the court, the civil court and the trial supervision court all participate in the examination.