What Does a Civil Supervisor Do?

The civil trial supervision procedure, that is, the civil retrial procedure, refers to the judgment, ruling, and mediation documents that have been legally effective. The people's court considers that there is indeed an error and retry the case. The trial supervision procedure is only a statutory procedure for correcting the mistakes of the effective adjudication. It is not a necessary procedure for trial of a case, nor is it an independent trial level of a lawsuit.

Civil Trial Supervision Procedure

Right!

The civil trial supervision procedure, that is, the civil retrial procedure, refers to the judgment, ruling, and mediation documents that have been legally effective. The people's court considers that there is indeed an error and retry the case. The trial supervision procedure is only a statutory procedure for correcting the mistakes of the effective adjudication. It is not a necessary procedure for trial of a case, nor is it an independent trial level of a lawsuit.

Chinese name

Civil Trial Supervision Procedure

Foreign name

Supervision procedure of civil trial

Also known as

Civil retrial procedure

Subject

Jurisprudence

The trial supervision procedure is different from other litigation procedures and has its unique characteristics:

1. The trial supervision procedure is a procedure for retrial of a verdict that has already become legally effective. It is not a continuation and development of the first and second instance proceedings, and is not a necessary procedure for civil lawsuits.

2. Trial supervision procedures can only be initiated by specific authorities and personnel. Subjects who have the right to file a retrial, or the people's courts at all levels, superior people's courts, and the Supreme People's Court filed a retrial in a legal manner; or a people's procuratorate with trial supervision authority filed a protest; or the parties applied in accordance with legal conditions retrial.

3 The trial supervision procedure must be initiated only if the judge of the case has made a mistake in determining the facts or applying the law; otherwise, it may not cause retrial.

4 There is a specific time requirement for the trial supervision process. The people's court can file a retrial based on the trial supervision right and the people's procuratorate can file a protest based on the procuratorial supervision right, regardless of time limit, as long as the people's court that has the right to file a retrial finds that the effective ruling is indeed wrong or that the original effective ruling has the legal facts and reasons for the protest, The people's court and people's procuratorate can initiate retrial procedures at any time. The parties applying for retrial shall be filed within 2 years after the legal effect of the judgment or ruling. .

5. The trial object of the trial supervision procedure can only be a wrong judgment that has already taken effect.

6. The procedure applicable to the retrial case of the people's court depends on the effective decision. If the effective ruling is made by the court of first instance, the trial shall be conducted in accordance with the procedures of the first instance; if the effective ruling is made by the court of second instance, the trial shall be conducted in accordance with the procedures of second instance. At the same time, the courts that hear cases in accordance with the retrial procedure include not only the trial court, but also the superior court and the Supreme Court of the trial court.

7. Cases that are re-tried in accordance with the trial supervision procedure shall be ruled to suspend the execution of the original ruling.

The people's court finds that the legally effective judgment or ruling has indeed been wrong, and should decide to re-try the case based on the trial supervision power.

Procedure for filing a retrial

According to the provisions of the Civil Procedure Law, the persons or organs that file a retrial in a civil case based on trial supervision power are: the presidents and trial committees of the people's courts at all levels, the higher people's courts, and the Supreme People's Court. The authorities that file a retrial are different from public officials, and accordingly, the specific procedures for filing a review are different.

(1) The court president and the trial committee file a retrial

When a people's court makes a judgment in a civil case, it shall be binding once declared or served, and shall not be revoked or changed at will. If the referee does make a mistake, it can only be corrected through a retrial process. In the court, it is the president of the court and the trial committee that exercise supervision over the trial of the trial staff of the court and the collegiate bench. Therefore, if the president of the court finds that a legally effective judgment or ruling has occurred and believes that there is indeed an error that requires retrial, he shall submit it to the trial committee for discussion and decision. If a decision is made on a retrial, it shall be ruled to suspend the execution of the original judgment or order.

(II) Retrial filed by the Supreme People's Court

According to the provisions of China's Civil Procedure Law, the Supreme People's Court has the right to raise a trial or order a lower-level people's court to re-trial if it has found a legally valid judgment or ruling on local people's courts at all levels.

If the Supreme People's Court raises a trial, it shall notify the lower court and retrieve the case file for trial; if the lower court is ordered to retry, the order shall be the date when the retrial is filed. After the lower court receives the order, the trial of the retrial shall begin, and the judgment made after the trial shall be reported to the Supreme People's Court.

For cases brought before the Supreme People's Court, the Supreme People's Court will make its own ruling and suspend the execution of the original ruling; for cases that instruct the lower court to retry, the lower court will make a ruling for retrial. As to which cases are eligible for trial, and which cases should be instructed to be re-tried by lower courts, the Civil Procedure Law does not provide for such cases, and the Supreme People's Court may choose to apply them according to specific circumstances.

(3) Retrial filed by a higher people's court

According to the provisions of China's Civil Procedure Law, the superior people's court has a legal effect on the judgment of a lower people's court, and if it finds that there is indeed an error, it has the right to raise the case or order the lower people's court to retry.

If the higher court decides to raise the case, it will extract all the case materials through the lower court, make a ruling, and conduct a retrial by itself; if it orders the lower court to rehear, explain the circumstances and point out the reasons, and inform the lower court. After receiving the notice from the superior court, the lower court shall conduct a retrial according to the notice and report the result of the retrial to the superior court that issued the order.

Procedure for retrial of case

Retrial cases based on trial supervision power can be divided into two types: one is the case submitted by the president of the court to the trial committee for discussion and decision, and the other is the case where the Supreme People's Court or a higher court orders a lower court to rehear or self-trial. The procedure for retrial varies from case to case.

(I) Procedure of retrial by the people's court of the first instance

If a retrial is decided, the people's court of the original trial shall make a ruling, suspend the execution of the original ruling, and at the same time, form a collegial panel to conduct a trial of the retrial case in accordance with the original trial procedures. It was originally concluded by the court of first instance, and the trial was still conducted in accordance with the procedures of the first instance. The judgement made after the trial is an undecided judgement. If the parties disagree, they can appeal. The trial was originally concluded by the court of second instance, and the trial was still conducted in accordance with the second trial procedure. The judgment made after the trial is the final judgment, and the parties may not appeal again.

When a retrial case is tried in accordance with the second trial procedure, the people's court must hold a trial, and the other party should appear in court. If the defendant is summoned by subpoena and refuses to appear in court without justified reasons, he may be sentenced in absentia. However, the plaintiff's subpoena summoned by the court, who refused to appear in court without justification, could not be dealt with as a withdrawal. Because filing a retrial is not the same as prosecution or appeal, the retrial procedure based on trial supervision does not start based on the plaintiff's lawsuit or appeal, but is initiated by the organs and public officials prescribed by law. Therefore, the provisions of dismissal cannot be applied. The plaintiff's refusal to appear in court without justification will not affect the trial of the retrial case by the people's court.

For a case that was originally tried by the court of second instance, when the retrial was found in accordance with the procedure of second instance, if the facts were found to be unclear, it should not be returned to the court of first instance for retrial, but should be corrected by the court of second instance itself.

(II) Procedures for trials and re-trials ordered by the higher people's courts and the Supreme People's Court

The Supreme People's Court has the right to submit a trial or order a lower court to make a retrial if a judgment or ruling that has been legally effective has been made by a people's court at any level or a higher-level people's court against a lower-level people's court. If it decides to submit a trial or order a retrial, it makes a ruling and suspends the execution of the original referee.

1. A case for retrial. Ordering a retrial of a retrial case is limited to a judgment that has been tried by a higher people's court against a lower people's court and has taken effect. The judgment of the second instance made by a lower-level people's court in accordance with law shall not instruct the first instance court to retry.

2. Proceedings. A referral refers to a case that has been concluded by a lower court but the ruling is indeed wrong. The superior court believes that it is not appropriate for the lower court to retry the case and therefore submits it to trial. The basis for the establishment of the trial review system is firstly the principle that the trial power is exercised uniformly by the people's courts, and the second is that the superior courts have trial supervision power over the trial activities of lower courts.

The escalation mainly occurs in the following situations: First, in the case that has been concluded, if the referee does make mistakes, it should be re-tried. However, in judicial practice, courts at all levels do not agree on whether there are indeed errors in adjudicating certain cases. For example, in some cases, the judgment of the case was indeed wrong, but the court that originally tried the case did not recognize it or believed that there was no error. At this time, the higher court may refer the case to its own trial. Second, because the relationship between the superior court and the lower court is not the relationship between the leader and the led court, when the higher court orders the lower court to retry and the lower court no longer tries, the higher court can raise the trial on its own. Third, the superior court and the Supreme Court consider that it is advisable to try the case, and they may not necessarily order the lower court to retry, but may initiate the trial on their own.

According to the provisions of the Civil Procedure Law, the retrial case was originally concluded by the court of first instance, and the first trial procedure was applied when the retrial was concluded; when the trial of the second instance court was terminated, the second trial procedure was applied at the retrial. However, retrial cases brought up by higher-level people's courts and the Supreme People's Court must be tried in accordance with the second-trial procedure, even if the trials in the first-trial court have ended.

The People's Procuratorate is the legal supervision organ of our country. The Civil Procedure Law stipulates that the People's Procuratorate has the right to exercise legal supervision over the civil trial activities of the People's Court. The specific supervision method is mainly the People's Procuratorate's ruling on the legal effect of the People's Court, which is deemed to be wrong. The people's court conducts a retrial, that is, to exercise prosecutorial supervision through protest.

Protest facts and reasons

According to the Civil Procedure Law, the People's Procuratorate can lodge a protest in the following cases: The original judgment or ruling found that the main evidence of the facts is insufficient; the original judgment or ruling is actually wrong in applying the law; the people's court violates legal procedures, which may affect the accuracy of the case A judgment or ruling; when the judge tried the case, he committed corruption, bribery, malpractice for personal gain, and legal judgment. The reason for the people's procuratorate to file a protest is not limited to the fact that the original referee did have errors in its content, but also involved the illegality of the refereeing activities.

Protest Procedure

(1) Proposition of protest

A protest is a level of protest that a people's procuratorate at which level has legally effected against a level of people's court. According to China s Civil Procedure Law, the Supreme People s Procuratorate has made legal judgments and rulings on people s courts at all levels, and the people s procuratorates at higher levels may lodge protests against people s courts on lower levels. Protests and rulings that have already become legally effective at the people's courts at the same level may not directly file a protest, but can only be brought to the higher people's procuratorate to file a protest.

(B) the way of protest

The protest method refers to the method adopted by the People's Procuratorate to protest against the effective ruling of the people's court. If the people's procuratorate decides to protest against the effective ruling of the people's court, it shall produce a written protest. Protests are legal documents filed by the People's Procuratorate to protest against the effective rulings of the People's Court. They are also legal documents for the People's Procuratorate's exercise of prosecutorial supervision to cause re-trial of counter-appeal cases. The protest should include: the people's procuratorate who filed the protest and the people's court that accepted the protest; the trial court of the trial case on the case number and its legal effect judgment, ruling; the facts and reasons for the protest; and the time for the protest. Where there is evidence, the people's procuratorate may, at the same time as submitting the protest to the people's court, provide evidence to the people's court or provide the source of the evidence.

The people's procuratorate should rehear a case of protest, that is, whenever the people's procuratorate raises a protest, the people's court should directly proceed with the retrial without requiring the president to submit it to the trial committee for discussion.

Retrial of counterclaim cases

(I) Trial level of the court at the time of protest and retrial

The retrial procedure is a kind of remedy procedure. It is not a litigation procedure that every case must go through, nor is it a third-trial procedure other than the first-trial procedure and the second-trial procedure. Therefore, the retrial of the people's court against the lawsuit does not increase the level of trial. The level of the court when the people's court accepts the protest and the retrial of the case mainly refers to the people's court at which the people's procuratorate has filed a protest in accordance with the retrial procedure, and the people's court accepts the protest and retrials the case.

(2) People's Procuratorate sends staff to court

According to the Civil Procedure Law, the people's procuratorate has filed a protest against the case, and the people's court should retry the case. It should also notify the people's procuratorate to send a person to attend the court. The people's procuratorate has a duty to notify the people's procuratorate to attend the court. To supervise the handling of cases by the people's courts. At the same time, since the case was re-trialed based on protest, the people's procuratorate should also send staff to attend the court so that the procuratorial supervision power can be fully realized.

The law stipulates a series of conditions for the parties to apply for retrial. Only when the parties apply for retrial to meet these conditions can the retrial procedure be initiated. Otherwise, the retrial procedure cannot occur.

Requirements for retrial

(1) The subject applying for retrial must be legal

According to the Civil Procedure Law, it is only the parties in the original trial that are entitled to apply for retrial, that is, the plaintiff, the defendant, a third party with an independent claim in the original trial, and a third party without an independent claim in judging its obligations. People, as well as appellants and appellees.

(2) The object of retrial must be a judgment, ruling and mediation that has already taken effect.

According to the provisions of the Civil Procedure Law, parties can apply for retrial of judgments, rulings and mediation documents that have already taken effect. Judgments that can be applied for retrial include judgments made by local people's courts at first instance as courts of first instance that can be appealed, but the parties did not appeal within the statutory period, final judgments made by the people's court of second instance, and first instance judgments made by the Supreme People's Court . The mediation documents that can be applied for retrial include mediation documents made by the court of first instance and the court of second instance based on the parties' agreement on mediation.

(3) Application for retrial must be filed within the legal time limit

According to Article 205 of the Civil Procedure Law, a party applying for retrial shall be filed within six months after the legal effect of the judgment or ruling; there is Article 200 of this law

The circumstances specified in the first, third, twelfth, and thirteenth items shall be raised within six months from the date when they are known or should be known.

The civil procedure law does not directly stipulate the time for the application for retrial. However, from the general spirit of legislation, the time for retrial application for mediation and the time for retrial of judgments and rulings should be the same.

(4) Application for retrial must comply with statutory facts and reasons

In cases where the people's court ruling has already taken effect, the parties must have the statutory facts and reasons for retrial: The parties applying for retrial should have new evidence sufficient to overturn the original judgment or ruling; the main evidence of the original judgment or ruling was insufficient. The original judgment and ruling were indeed wrong in the applicable law; the people's court violated legal procedures, which may affect the correct judgment and ruling of the case; the judges committed corruption, bribery, malpractice, and legal adjudication while trying the case.

Scope of application for retrial

According to the provisions of Article 180 of the Civil Procedure Law, the parties may apply for a retrial if the parties have provided evidence to prove that the mediation violates the voluntary principle or the content of the mediation agreement violates the law. The parties may apply for retrial if the ruling is rejected or rejected.

The parties shall not apply for a retrial of the judgment on dissolution of marriage that has already taken effect. Where a party applies for a retrial on the division of property in a divorce case, if the divided property in the judgment is involved, the people's court shall conduct an examination in accordance with the provisions of Article 179 of the Civil Procedure Law. The married couple's common property shall be informed of the litigation separately.

In cases that have been tried in accordance with the urging procedure, the public reminder procedure, the bankruptcy and debt repayment procedures of the enterprise legal person, and the cases that have maintained the original judgment after the trial supervision procedure, the parties may not apply for retrial.

How and how to apply for retrial

The parties consider that the legally effective judgment or ruling has been wrong, and may apply to the people's court of the first instance or the higher people's court for retrial.

A party applying for retrial shall submit an application to the people's court and provide a copy of the application according to the number of parties to the other party. The application should clearly state the numbers of the people's court and the ruling of the original trial, the reasons for applying for a retrial, the basis, and the content of the retrial.

Ruling suspension of original judgment

After receiving a retrial application from a party, the people's court shall conduct an examination and consider that it meets the requirements of Article 179 of the Civil Procedure Law. After the case is filed, it shall decide to suspend the execution of the original judgment and notify both parties at once. If it is provided in Article 179, the application shall be rejected with a notice.

A separate collegiate panel

When people's courts try retrial cases, they all implement a collegial system. If it is re-tried by the people's court of the original trial, a collegial panel shall be formed separately.

Trial in accordance with the original trial procedure

The retrial case was originally concluded in the first instance, and the first instance procedure shall be applied in the retrial, except for those brought by the Supreme People's Court and the superior people's court. After the retrial, the parties may appeal against the judgment or ruling. The retrial case was originally concluded in the second trial. The second trial procedure shall be applied during the retrial. The judgment and ruling after the retrial shall be the final judgment, and the parties shall not appeal.

Cases brought up by the people's court for trial or retrial in accordance with the procedures of the second instance and found during the trial to find that the original judgment violated legal procedures may be handled separately.

1. If it considers that it does not meet the acceptance conditions stipulated in the Civil Procedure Law, it decides to revoke the judgments of the first and second trials and reject the prosecution.

2. If the following violations of legal procedures may affect the correct judgment and ruling of the case, the judgment of the first and second trials shall be revoked and sent back to the people's court of the first instance for retrial: first, the judge and clerk who tried the case shall evade the non-evasion; , The judgment was made without a trial; third, the parties to the ordinary procedure of the trial, who were absent from the judgment without a subpoena; fourth, other serious violations of legal procedures.

If the case is re-tried in accordance with the trial supervision procedures, if the people's court finds that the parties in the first and second trials have omitted the parties that should participate in the lawsuit, they may mediate on the basis of the parties' voluntary principles. If the mediation fails, the judgment of the first and second trials shall be revoked and returned to the people's court of the original trial for retrial. The judgment of the people's court on a retrial case can be made by itself or by entrusting the people's court of the original trial or the people's court where the party is located to execute the judgment on its behalf.