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Explanations Concerning the Application of Trial Supervision Procedure of Civil Procedural Law of China


(Adopted at the 1453rd meeting of the Judicial Committee of the Supreme People’s Court on November 10, 2008) Judicial Explanation (2008) No. 14
 
Announcement of the Supreme People’s Court
 
The “Explanations of the Supreme People’s Court on Several Issues Concerning the Application of Trial Supervision Procedure of Civil Procedural Law of the People’s Republic of China”, which was adopted at the 1453rd meeting of the Judicial Committee of the Supreme People’s Court on November 10, 2008, is hereby promulgated, and shall become effective on December 1, 2008.
 
November 25, 2008
 
In order to guarantee the right of petitioning for retrial, regulate trial supervision procedure and protect lawful rights and interests of all parties affected, explanations on some issues on the application of law during the trial supervision procedure are hereby provided in accordance with relevant provisions of Civil Procedural Law of the People’s Republic of China as revised on October 28, 2007 and in light of actual trial practices:
 
Article 1. When a party petitions to the people’s court at a higher level above the court of original trial for retrial within the time limit prescribed by Article 184 of Civil Procedural Law, based on the causes for retrial specified by Article 179 of Civil Procedural Law, the people’s court at a higher level shall accept the petition in accordance with the law.
 
Article 2. The time limit for petitioning for retrial prescribed by Article 184 of Civil Procedural Law shall not be applied to the regulation of suspension, interruption or extension.
 
Article 3.  When a party petitions for retrial, he shall file the petition for retrial with the people’s court and provide duplicate copies based on the number of the respondent parties.
The people’s court shall examine whether the petition for retrial contains following items:

(1) Basic information such as the name, address and current contact information of the petitioner and the respondent; basic information such as the name and address of the legal person or other organizations as well as the name, occupation and current contact information of the legal representative or the person in charge.

(2) Name of the people’s court of first trial, case reference numbers for the original verdict, ruling or mediation decisions;

(3) Legally designated circumstance as well as specific facts and causes for petitioning for retrial

(4) Specific requests for retrial.
 
Article 4. Where a party petitions for retrial, he shall submit legally effective verdict, ruling, mediation order, proof of his identification and relevant evidence to the people’s court.
 
Article 5.  A third party who asserts claims over the subject matter of execution specified in the original verdict, ruling order or mediation order, but who is unable to institute new litigation to resolve the dispute, may, within two years after the verdict, ruling or mediation order comes into force, or within three months after he knows or should have known that his interests are harmed, file a petition for retrial before the people’s court at a higher level above the people’s court which renders the original verdict, ruling or mediation order.

During the process of execution, where a third party files a written objection over the object of execution, it will be handled according to Article 204 of Civil Procedural Law.
 
Article 6. If the petition for retrial or other materials filed by the petitioner do not comply with the requirements of Articles 3 and 4 of the Explanations, or contains personal attacks which may intensify the conflict, the people’s court should request that the petitioner supplement or revise the petition.
 
Article 7. The people’s court shall complete the acceptance and registration procedures including sending Notification of Acceptance to the petitioner as well as sending Notification of Acceptance and a duplicate copy of the retrial petition to the respondent within five days after its receipt of the retrial petition materials which comply with the requirements
 
Article 8.  After accepting the petition for retrial, the people’s court shall organize a collegial panel to examine the petition.
 
Article 9. The people’s court’s examination of the petition for retrial should focus on whether the cause for retrial exists.
 
Article 10. If the petitioner for retrial files one of the following pieces of evidence, the people’s court may regard it as “new evidence” prescribed by Section 1 of Clause 1 of Article 179 of Civil Procedural Law:

(1) evidence which existed objectively before the end of the original trial and newly discovered after the completion of the original trial;

(2) evidence which was discovered before the end of the original court trial but could not be obtained or provided within the specified time limit due to certain objective reasons;

(3) evidence of a conclusion by the original expert upon reevaluation or reinvestigation after the completion of the original trial which reversed the original conclusion provided by the original expert after evaluation and investigation.

The primary evidence which was submitted by the party and was not subject to cross-examination or authentication during the original trial, shall be regarded as new evidence if it is sufficient to support a reversal of the original verdict or ruling.

Article 11. The people’s court should consider those facts as “basic facts” prescribed by Section 2, Clause 1 of Article 179 of Civil Procedural Law if they have substantive impact on the original verdict or judgment and are used to confirm the subject qualification of the party, the nature of the case, the specific rights and obligations as well as civil liability, etc.

Article 12. “Evidence necessary for adjudicating the case” required by Section 5 of Clause 1 of Article 179 of Civil Procedural Law refers to the evidence the people’s court must have to ascertain the basic fact of the case.

Article 13. The people’s court shall regard it as “an erroneous application of the law” prescribed by Section 6 of Clause 1 of Article 179 of Civil Procedural Law if any of the following circumstances exists with regard to the law, regulation or judicial explanations applied in the original decision or ruling:
(1)The law applied obviously did not fit with the nature of the case;

(2)The civil liability determined obviously violated the agreement between the parties or the requirements of law;

(3)Applying the law which was no longer valid or had not been implemented yet;

(4)Violating the retroactivity principle prescribed by the law;

(5)Violating the rules governing applicability of law;

 (6)Violating the obvious legislative intent.

Article 14. The people’s court shall regard it as “jurisdictional error prescribed by Section 7 of Clause 1 of Article 179 of Civil Procedural Law if the exercise of jurisdiction violated the rules governing exclusive jurisdiction, specific jurisdiction as well as other severe violations of laws governing exercise of jurisdictions.

Article 15. The people’s court shall regard it as “deprivation of a party’s right to debate” prescribed by Section 10 of Clause 1 of Article 179 of Civil Procedural Law if during the original court trial, the judge failed to allow a party to exercise his debate right, or made it impossible for a party to exercise the debate right by other means such as not sending a duplicate copy of the complaint or appeal petition. Judgments by default, verdicts or judgments under summary procedure permitted by law are excluded.
 
Article 16. The people’s court may treat it as the circumstance prescribed by Section 13 of Clause 1 of Article 179 of Civil Procedural Law if the original verdict or judgment ascertained certain basic facts and the nature of case based on other legal documents which have been cancelled or revised.
 
Article 17. “Circumstances affecting the correctness of the original verdict or judgment due to a violation of legal procedure by the people’s court” prescribed by Clause 2 of Article 179 of Civil Procedural Law refer to violations of legal procedure which may lead to an incorrect verdict or judgment other than those specified in Section 4 and from Section 7 to Section 12 of Clause 1 of Article 179 of Civil Procedural Law.
 
Article 18. “Conduct of trial personnel involving embezzlement, bribery, practicing favoritism for himself or relatives, or rendering judgment in total disregard of the law during the case adjudication” prescribed by Clause 2 of Article 179 of Civil Procedural Law refers to the conduct that has already been confirmed by relevant criminal law orders or disciplinary penalty decisions.
 
Article 19. After examining the materials like the petition for retrial, the people’s court shall summarily decide to rehear the case if it finds that the cause for retrial exists.
If the party’s petition for retrial has exceeded the time limit prescribed by Article 184 or Civil Procedural Law, or has exceeded the scope of causes for retrial listed in Article 179 of Civil Procedural Law, the people’s court should reject the retrial petition.
 
Article 20. If the people’s court finds it difficult to make a ruling only by examining the materials like the petition for retrial, it should investigate and review the original trial’s case file.
 
Article 21. The people’s court may decide whether to interview the party based on the needs of the case.
If the party petitions for retrial based on the fact that the new evidence is sufficient to reverse the original decision or ruling, the people’s court should interview the party.
 
Article 22. During the review process of a retrial petition, if the respondent also petitions for a retrial, the people’s court shall regard it as petitioner and examine the petition for retrial proposed by the respondent.
 
Article 23. Where the petitioner applies for withdrawal of petition during the examination period, it is up to the people’s court to decide whether to permit the withdrawal. 
If the petitioner refuses to accept interview without good cause after a summons has been issued, the court can treat it as a withdrawal of the petition for retrial.
 
Article 24. If the people’s court after examination finds that the cause for retrial does not exist, it should reject the petition for retrial.
The decision to reject the petition for retrial will take effect upon service.
 
Article 25. The people’s court may decide to terminate the examination under the following circumstances:

(1)   The petitioner dies or terminates without any successor of rights and obligations or the successor of the rights and obligations declares an intent to abandon the petition;

(2)   In an action for payment, the respondent who is obligated to perform dies or terminates without any property against which enforcement can be sought or any person who should undertake the obligation.

(3)   The parties reach a settlement agreement and the agreement has been executed except for situations where the party announces its intention not to abandon the right of petitioning for retrial during the execution of the settlement agreement.

 (4) The dispute between the parties can be resolved in another case.
 
Article 26. During the people’s court’s review of the petition for retrial, if the people’s procuratorate lodges a protest against the case, the people’s court shall decide to rehear the case as required by Article 188 of Civil Procedural Law. The specific petition requests by the petitioner shall be included in the scope of trial.
 
Article 27. If the people’s court at a higher level finds after the examination that the cause of petition for retrial exists, it may rehear the case itself. The Supreme People’s Court and High People’s Court can also designate other people’s court at the same level as the original people’s court, or order the original people’s court to rehear the case.
 
Article 28. The people’s court at a higher level may decide whether to designate the court for retrial based on factors such as the extent of the impact of this case or the parties in the case. If it is necessary to designate a court for retrial, the people’s court at a higher level shall consider factors such as conveniences of the parties to exercise its litigation rights and conveniences of the court to hear the case.
       The people’s court which accepts the designation to retry the case shall hear the case according to the procedure prescribed by Clause 1 of Article 186 of Civil Procedural Law.
 
Article 29. The people’s court of original trial shall not be designated to rehear the case under any of the following circumstances:

(1)   The people’s court of original trial has no jurisdiction over this case; 

(2)   The adjudicating personnel engaged in embezzlement, bribery, practicing favoritism for himself or relatives, or rendering a verdict in total disregard of the law;


(3)   The original verdict or ruling was made after the discussion by the judicial committee of the people’s court of original trial;

(4)   Other circumstances which make it improper to designate the people’ court of original trial to rehear.
 
Article 30. Where the parties do not petition for retrial and the people’s procuratorate does not protest, if the people’s court finds there are errors in the original decision, ruling or mediation agreement which may damage the public interests of country or society, the people’s court should bring the case to court for retrial in accordance with the provision of Article 177 of Civil Procedural Law.
 
Article 31. The people’s court shall retry the case in accordance with the procedure of first trial or second retrial in accordance with Article 186 of Civil Procedural Law.

For the retrial, the people’s court shall hold a hearing in court, except for those which can be retried according to the procedure of second instance, or where both parties have fully expressed their opinions in other ways and agreed in writing not to hold the hearing in court.
 
Article 32. When the people’s court conducts a hearing in court for the retrial, it should proceed with the retrial depending on the specific circumstances:       

(1) When the retrial is pursuant to a petition by the party, the petitioner shall state the claims and causes for retrial first, and then the respondent defends, and finally other parties of the original trial state their opinions;

(2)   When the retrial is pursuant to a protest from the people’s procuratorate, the protesting office shall read the written protest first, and then the party who petitions for protest makes a statement, and finally the respondent defends and other parties to the original trial state their opinions;

(3)   When the retrial is instituted by the people’s court on its own initiatives, the parties state their opinions according to their status in the original litigation.
 
Article 33. The people’s court shall retry the case within the specific petition scope or the parties’ requests supported by the protest. If a party adds or changes requests which have exceeded the scope of the original trial, those requests are not within the scope of the retrial except for those requests which affect the public interests of the state, society and public, or where the party lawfully requested to add or change claims in the original trial, but the court of original trial failed to hear and cannot form the basis for another litigation objectively.

If the court decides to withdraw the original judgment and remand for a retrial and the party adds claims, the people’s court shall handle the case in accordance with Article 126 of Civil Procedural Law.
 
Article 34. If the petitioner withdraws petition during the retrial period, the people’s court may decide whether to approve the withdrawal.  Where approval is granted, the retrial should be terminated.  If the petitioner for retrial refuses to appear in court without good cause after a summons has been issued, or withdraws from the court midway without the court’s approval, the court may treat it as a voluntary withdrawal. 
With respect to a retrial petitioned by the people’s procuratorate, if the circumstances mentioned in the above clause exist with regard to the party who petitions for protest and where the interests of the state, society or the third person are not harmed, the people’s court should decide to terminate the retrial. The people’s procuratorate’s withdrawal of its protect should be approved.
If the retrial is terminated, enforcement of the original trial verdict shall be resumed.
 
Article 35. When a retrial is conducted according to the procedure of first instance, and the plaintiff of the original trial petitions for the withdrawal of litigation, the people’s court shall decide whether to approve the petition. If permitted, the court shall also simultaneously decide whether to cancel the original decision, ruling or mediation agreement.
 
Article 36. If the parties reach an agreement through mediation during the retrial process, the people’s court shall draft a mediation agreement. The mediation agreement will become legally effective once signed by all parties. The original verdict or ruling will be deemed cancelled.
 
Article 37. If the people’s court finds after the retrial that, the original decision or ruling is clear in the factual determinations and correct in the application of law, the original decision or ruling shall be sustained. Although the original verdict or ruling may contain flaws in the factual determinations, application of law and statement of reasons, the people’s court should sustain the original verdict after rectifying the above flaws if the resulting judgment is correct.
 
Article 38. If the people’s court rehears the case according the procedure of second instance and finds that the original factual determination is wrong or unclear, it shall revise the judgment after ascertaining the fact. But if it is convenient for the original people’s court is to ascertain the fact and resolve the dispute, the people’s court may decide to cancel the original judgment and remand for retrial. If the original procedure omitted the party required to attend the litigation and failed to reach a mediation agreement, and had other violations of legal procedure which is improper to be handled substantively in the retrial procedure, the people’s court should decide to cancel the original verdict and remand for retrial.
 
Article 39. If new evidence proves that there is error in the original verdict or ruling, the people’s court should revise the verdict.
Where the petitioner or the party who petitions for protest provides new evidence which results in the revision of the original verdict, the people’s court should support the claims for compensation such as increased traveling expenses or lost work time by parties like the respondent who failed to adduce evidence in time during the original trial due to the fault of petitioner or the party who petitions for protest. A separate litigation can be instituted to seek compensation for extended direct losses.
 
Article 40. If the people’s court decides to retry a case previously resolved through mediation and found after examination that the petitioner’s claim that the mediation violated the voluntarily principle is not valid, and where the terms of the mediation agreement do not violate any of the mandatory requirements of law, the court should decide to deny the petition and resume the execution of the mediation agreement. 
 
Article 41. The parties in the civil retrial case shall be the same as those in the original trial. If the party in the original trial dies or terminates, its successor of rights and obligations may petition for retrial and participate in the retrial as well.
 
Article 42. Where a third party petitions for retrial, if the people’s court finds that the third party is a necessary party to the litigation, the court shall add the person to the action and render a new judgment if the case is retried according to the procedure of first instance; if the case is retried according to the procedure of second instance, and an agreement cannot be reached after mediation, then the people’s court shall cancel the original decision and remand for a retrial, and the third party shall be added to the case during the retrial.
If a third party is not a necessary party to the litigation, the people’s court examines only the legality of the third party’s objections to the original verdict, and decides either to cancel the original verdict and the related rulings or deny the petition for the retrial depending on the circumstances of the examination. Where the people’s court decides to cancel the original verdict and related rulings, the court should inform the third party as well as the parties in the original trial that they have the right to institute a new litigation to resolve the relevant disputes.
 
Article 43. If a prior judicial explanation promulgated by this court conflicts with these Explanations, these Explanations control. Where these Explanations do not address the issue, it should be handled according to the prior Explanation.
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