If the case is lost in the second instance, it is better to protest or ask for a retrial

In our country, there is a second-instance final adjudication system, and after a case has been tried in the second instance, there is no party requesting a protest or retrial, and the law does not give the parties such rights.

Prosecutorial appeals fall within the purview of the procuratorate. The procuratorate filed a protest, and the court initiated the retrial procedure.

Where a party requests a retrial, and after review by the court, the requirements for retrial are met, it enters the judicial process.

The concepts of retrial and retrial are different, and the retrial is conducted in a legal case that has already taken effect; A retrial is a case in which the second-instance trial finds that there are problems with the determination of facts, evidence, or the application of law, or remands the case to another court for retrial, and the case itself has not taken effect, and its legal efficiency is different.

Parties may apply to the people's procuratorate to raise a prosecutorial counter-appeal, and the procuratorate will decide whether to raise a procuratorial counter-appeal.

Prosecutorial appeals and applications for retrial are slow, and each has its own advantages and disadvantages. In accordance with the law, a procuratorial counter-appeal is submitted by the procuratorial organ, and as long as it is raised, the adjudication organ must accept it, and the trial is relatively fast, but after the parties raise a procuratorial counter-appeal, the procuratorial organ decides whether to raise a procuratorial counter-appeal. The application for retrial is submitted directly to the adjudication organ, and the trial is relatively slow.

Of course, it is better to protest a protest, which will inevitably lead to a retrial, and a request for a retrial requires the court to decide whether to initiate it.

If you lose the second instance, you can only apply for a retrial or request the procuratorate to raise a protest.

If the procuratorate files a protest, the court must retry the case, and it must. This is not necessarily the case when the parties complain.

It should be called an appeal, and it is a misnomer.

You can appeal, and there is no limit to the number of retrials, as long as they meet the requirements:

Article 179:Where a party's application meets any of the following circumstances, the people's court shall retry the case:

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

2) The basic facts ascertained in the original judgment or ruling lack evidence to prove them;

3) The primary evidence of the facts ascertained in the original judgment or ruling was fabricated;

4) The main evidence of the facts ascertained in the original judgment or ruling has not been debated;

5) Where the parties are unable to collect evidence needed for trial on their own for objective reasons, and apply in writing to the people's court to investigate and collect it, but the people's court does not investigate and collect it;

6) The original judgment or ruling applies.

Law. There is a true error;

7) Violating legal provisions and having wrong jurisdiction;

8) The composition of the trial organization is unlawful, or the adjudicators who should be recused in accordance with law have not recused themselves;

9) A person who lacks capacity for litigation has not been represented by a legally-prescribed person in litigation or a party who should participate in the litigation has not participated in the litigation due to reasons that cannot be attributed to him or his or her litigation person;

10) Violating legal provisions by depriving parties of their right to debate;

11) Judgment in absentia without being summoned by summons;

12) The original judgment or ruling omitted or exceeded the litigation demands;

13) The legal documents on which the original judgment or ruling was based have been revoked or modified.

Situations where violations of legally-prescribed procedures might impact the correct judgment or ruling of the case, or where adjudicators are present.

After the first instance, the second instance, and the retrial, the case is still lost, and the retrial upholds the judgment of the original second instance, and the retrial upholds the judgment of the original second instance, then the judgment of the second instance is a legally effective judgment.

As far as the law is concerned, there is no limit to the number of times a retrial can be applied, but it will be difficult to apply for a retrial in a case that has been retried. In practice, it is a question whether the court will accept the case. As far as the litigation process is concerned, the retrial procedure is not an ordinary and compulsory procedure, it is only a remedy for erroneous judgments, and it is conditional and limited, and should not be endless, otherwise, endless litigation can only increase the cost of litigation needlessly.

Code of Civil Procedure

Article 186:In cases retried by a people's court in accordance with the trial supervision procedures, where the legally effective judgment or ruling was made by the first-instance trial court, the judgment or ruling made in accordance with the first-instance trial procedures may be appealed by the parties; A judgment or ruling that takes legal effect is made by a court of second-instance trial, and is tried in accordance with the procedures of the second-instance trial, and the judgment or ruling made is a judgment or ruling that takes legal effect; Where a higher level people's court arraigns for trial in accordance with the trial supervision procedures, it is to be tried in accordance with the second-instance trial procedures, and the judgment or ruling made is a legally effective judgment or ruling.

People's courts hearing retrial cases shall separately form a collegial panel.

Legal analysis: 1. The object of the protest is different, 2) the authority of the protest is different, 3) the adjudication organ accepting the protest is different, 4) the time limit of the protest is different, and 5) the effect of the protest is different.

Legal basis: "Kuanque Civil Procedure Law of the People's Republic of China".

Article 212:Where the people's procuratorate decides to raise a procuratorial counter-appeal against a people's court's judgment, ruling, or mediation document, it shall draft a written counter-appeal.

Article 2: In cases where the people's procuratorate raises a prosecutorial counter-appeal, when the people's court rehearses it, it shall notify the people's procuratorate to appoint someone to appear in court.

Relatively speaking, it is more difficult and cumbersome. To appeal to the Supreme People's Court, a civil complaint must be submitted. To apply to the procuratorate at the same level as the court of second instance to submit a protest, materials must be submitted to apply for a protest.

The people's court shall review it within 3 months of receiving the written application for retrial, and where the provisions of this Law are met, rule for retrial; where the provisions of this Law are not complied with, a ruling is made to reject the application. Where there are special circumstances that require an extension, it is to be approved by the president of that court. Parties applying to the original people's court for a retrial shall submit a written application and effective legal documents to the people's court's case filing division, and upon discussion by the president of the people's court and the adjudication committee, decide whether to retry the case, and during this period, the enforcement of the judgment or ruling is not stopped.

The difference between a retrial and a protest:

1. The object of the protest is different.

The object of the second-instance appeal is the first-instance judgment or ruling of the local people's court at all levels that has not yet taken legal effect, and the object of the retrial appeal is the judgment or ruling that has already taken legal effect.

2. The authority to protest is different.

With the exception of the Supreme People's Procuratorate, the People's Procuratorate at any level has the right to lodge a second-instance protest against the first-instance judgment or ruling of the people's court at the same level. Except for the Supreme People's Procuratorate, which has the right to raise a retrial protest against an effective judgment or ruling of the Supreme People's Court at the same level, the people's procuratorates at all levels can only raise a retrial protest against a legally effective judgment or ruling of the people's court at a lower level. It can be seen that the basic level people's procuratorate can only raise a second-instance counter-appeal, but has no right to raise a retrial counter-appeal, and the Supreme People's Procuratorate can only raise a retrial counter-appeal, but has no right to raise a second-instance counter-appeal.

Extended information: What are the differences between retrial and counter-appeal?

1. The object of the protest is different.

2. The authority to protest is different.

3. The adjudication organs accepting the protest are different.

4. The time limit for protest is different.

5. The effect of the protest is different.

Legal basis: Civil Procedure Law of the People's Republic of China

Article 212: If the People's Procuratorate decides to raise a protest against a judgment, ruling, or mediation document of the People's Court, it shall draft a protest document.

The procuratorate can only lodge one protest against a verdict, because the court should accept each case in which the procuratorate decides to protest. If there is any hope and need to see the facts of the case, it is recommended to consult a lawyer.

Legal basis: Article 208 of the Civil Procedure Law of the People's Republic of China: Where the Supreme People's Procuratorate discovers any of the circumstances provided for in Article 200 of this Law, or discovers that the mediation document harms the national interest or the public interest, the Supreme People's Procuratorate shall raise a prosecutorial counter-appeal against a judgment or ruling of a people's court at any level that has already taken legal effect, or a higher level people's procuratorate discovers that a judgment or ruling of a lower level of people's court has already taken legal effect. Where any level of local people's procuratorate discovers any of the circumstances provided for in article 200 of this Law in respect of a judgment or ruling of a people's court at the same level that has already taken legal effect, or discovers that the mediation document harms the national interest or the societal public interest, it may submit a procuratorial suggestion to the people's court at the same level and report it to the people's procuratorate at the level above for filing; It may also request that the people's procuratorate at a higher level submit a prosecutorial counter-appeal to the people's court at the same level. People's procuratorates at all levels have the right to submit procuratorial suggestions to the people's courts at the same level regarding the illegal conduct of adjudicators in trial procedures other than trial supervision procedures.

The case has been retried and the retrial is still lost, and it is a bit difficult to apply to the procuratorate for a protest at this time. Applying for a prosecutorial counter-appeal or procuratorial suggestion is a remedy granted to the parties by law. However, it is already difficult to pass a retrial, and it is even more difficult to change the original judgment or ruling through a protest.

If sufficient evidence cannot be provided or there is indeed a legal error, the procuratorate may basically not protest the prosecution. According to the provisions, if the procuratorate does not submit a procuratorial suggestion or prosecutorial counter-appeal, the party concerned must not apply to the people's procuratorate again for a procuratorial suggestion or procuratorial counter-appeal.

Legal basis: Article 209 of the Civil Procedure Law, in any of the following circumstances, the parties may apply to the people's procuratorate for a procuratorial suggestion or prosecutorial counter-appeal:

1) The people's court rejects the application for retrial;

2) The people's court has not made a ruling on the application for retrial within the time limit;

3) The retrial judgment or ruling is clearly in error.

1. Different objects: The object of the second-instance appeal is the first-instance judgment that has not yet taken effect, while the object of the retrial protest is the judgment and ruling that has already taken effect, some of which are the judgments that have taken effect in the first instance, and there are also the judgments of the final trial of the two instances. 2. The protest organs are different:

The organ of the second-instance appeal is the procuratorate at the same level as the original court of appeal, and the organ of the retrial appeal is the procuratorate at the level above the original court or the Supreme People's Procuratorate. 3. The organs accepting the protest are different: the organ accepting the second-instance protest is the court at the next higher level of the procuratorate appeal, while the organ accepting the retrial protest is the court at the same level as the procuratorate appealing.

4. The time limit for initiating a protest is different: there is a statutory time limit (10 days and 5 days) for a second-instance appeal, while the law does not stipulate the time limit for a retrial counter-appeal, as long as the people's procuratorate finds that the effective judgment is indeed in error, whether it is in the execution of the judgment or ruling. or after the completion of enforcement, a protest can be filed.

5. Different effects: The second-instance appeal will inevitably lead to the first-instance judgment not having legal effect, but the retrial protest will not stop the enforcement of the original judgment or ruling. 6. The role and consequences of protests are different:

The main purpose of the second-instance trial procedure is to prevent the first-instance court's judgment from taking effect and to avoid handing over the judgment that the people's procuratorate believes is erroneous; The outcome of the trial may be reversed or remanded to the original court for a new trial, or the original judgment may be upheld. The main purpose of the protest in the retrial procedure is to seek truth from facts, correct mistakes, and correct erroneous judgments that have already been handed over for enforcement.

Article 228 of the Criminal Procedure Law of the People's Republic of China: When local people's procuratorates at all levels find that the first-instance judgment or ruling of the people's court at that level is truly in error, they shall raise a prosecutorial counter-appeal to the people's court at the level above. Article 229 of the Criminal Procedure Law of the People's Republic of China: Where victims and their legally-designated persons are dissatisfied with the first-instance judgment of a local people's court at any level, they have the right to request that the people's procuratorate raise a prosecutorial counter-appeal within 5 days of receiving the judgment. Within 5 days of receiving the request from the victim and his legally-designated **, the people's procuratorate shall make a decision on whether to raise a prosecutorial counter-appeal and respond to the requester.

Article 230 of the Criminal Procedure Law of the People's Republic of China provides that the time limit for appeals and prosecutorial counter-appeals against judgments is 10 days, and the time limit for appeals and prosecutorial counter-appeals against rulings is 5 days, calculated from the second day after receiving the judgment or ruling. Article 244 of the Criminal Procedure Law of the People's Republic of China The judgments and rulings of the second instance and the judgments and rulings of the Supreme People's Court are final judgments and rulings. Article 252 of the Criminal Procedure Law of the People's Republic of China: Parties and their legally-designated persons and close relatives may submit appeals to the people's courts or people's procuratorates against judgments or rulings that have already taken legal effect, but the enforcement of the judgment or ruling cannot be stopped.