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The present provisions are enacted in accordance with the Criminal Procedure Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China and the Administrative Procedure Law of the People's Republic of China, and in combination with the trial practice with a view to strengthening the trial supervision and to regulating the filing of cases for retrial. Article 1. Where, after reexamination, a people's court at any level or a special people's court considers that the final order or judgment made by itself, or a people's court at a higher level considers that the final order or judgment made by the people's court at a lower level meets the conditions for filing a case for retrial, it shall make a decision or order on retrial. Where a people's procuratorate presents a protest in accordance with the law regarding a final order or judgment made by a people's court, the people's court accepting the protest shall file the case for retrial. Article 2. A local people's court at any level or a special people's court shall be responsible for filing the following cases for retrial: (1) cases with the final orders and judgments made by the local people's court itself, which meet the conditions for filing a case for retrial; (2) cases rejected by the people's court at the next lower level upon reexamination or cases with the judgments revised upon retrial, which meet the conditions for filing a case for retrial; (3) cases retried upon the order by the people's court at a higher level; and (4) cases regarding which a people's procuratorate presents a protest in accordance with the law. Article 3. The Supreme People's Court shall be responsible for filing the following cases for retrial: (1) cases with the final orders and judgments made by the Supreme People's Court itself, which meet the conditions for filing a case for retrial; (2) cases rejected by a higher people's court upon reexamination or cases with the judgments revised upon retrial, which meet the conditions for filing a case for retrial; (3) cases regarding which the Supreme People's Procuratorate presents a protest in accordance with the law; and (4) cases which the Supreme People's Court considers should be retried by itself. Article 4. The people's court at a higher level may, with regard to a final order or judgment made by the people's court at a lower level, directly file the case for trial if considering it is indeed necessary, and may make a decision or order for retrial if considering upon reexamination that the case meets the conditions for filing a case for retrial. Article 5. An applicant for retrial or a petitioner shall, if filing to a people' court an application for retrial or a petition, submit the following documents: (1) the written application for retrial or the written petition, which shall state the basic information of the parties concerned, factual basis and cause for retrial or petition; (2) legal documents such as the written judgment or written order, of the original first or second instance. If the case has been reexamined or retried by the people's court, a notification for rejection, a written judgment or a written order on the retrial shall be attached thereto; and (3) where a party concerned filed an application for retrial or a petition with the reason that there is new evidence proving that there is indeed an error in the facts ascertained by the original judgment or order, he shall simultaneously attach the evidence catalogue, the name list of the witnesses and the duplicates or photos of the main evidence. If it is necessary for the people's court to collect evidence through investigation, an evidence clue shall be attached thereto. Where an application for retrial or a petition does not conform to the preceding paragraph, the people's court shall refuse to carry out the examination. Article 6. An application for retrial or a petition shall generally be examined or dealt with by the people's court of final appeal. The people's court at the next higher level shall generally deliver the application for retrial or the petition that has not been examined or dealt with to the people's court of final appeal for examination, and shall accept the application for retrial or the petition which has been examined or dealt with by the people's court of final appeal but which the applicant insists on filing. With respect to an application for retrial or a petition directly filed to the people's court at a higher level but examined or dealt with neither by the people's court of final appeal nor by the people's court at the next higher level, the people's court at a higher level shall deliver it to the people's court at the next lower level. Article 7. If a petition regarding a final criminal order or judgment meets any of the following circumstances, the people's court shall make a decision on retrial: (1) there is evidence uncollected or unadopted in the trial, which is possible to negate the original condemnation and punishment; (2) the main evidence was not sufficient or had no force of proof; (3) the main factual basis for the original judgment or order has been modified or cancelled in accordance with the law; (4) the evidence upon which the condemnation and punishment were made was self-contradictory; (5) the legal provisions were wrongly cited or any invalidated law was applied in violation of Article 12 of the Criminal Law; (6) the legal provisions on retroactivity were violated; (7) the punishment made was obviously improper; (8) the trial procedure was illegal, and therefore affected the impartial order or judgment of the case; or (9) the judges, when trying the case, extorted or accepted bribes, or committed malpractices for personal gain, and therefore made the judgment by misusing the law. Article 8. If an application for retrial regarding a final civil order or judgment or conciliation meets any of the following circumstances, the people's court shall make an order on retrial: (1) there is evidence which the applicant for retrial did not know before or was unable to adduce, and which is possible to negate the original judgment or order; (2) the main evidence was not sufficient or had no force of proof; (3) the main factual basis for the original judgment or order has been modified or cancelled in accordance with the law; (4) there were two effective legal documents with respect to the same legal fact or legal relationship, and the applicant for retrial files an application for retrying the legal document that became effective later; (5) the legal provisions were wrongly cited or any invalidated law or any law which had not become effective was applied; (6) the legal provisions on retroactivity were violated; (7) the conciliation agreement obviously violated the principle of voluntariness, or its contents violated the law, or damaged the state's benefits, public benefits or benefits of other people; (8) the trial procedure was illegal, and therefore affected the impartial order or judgment of the case; or (9) the judges, when trying the case, extorted or accepted bribes, or committed malpractices for personal gain, therefore made the judgment by misusing the law. Article 9. If a petition regarding a final administrative order or judgment meets any of the following circumstances, the people's court shall make an order on retrial: (1) the case should have been accepted in accordance with the law but was not accepted or the lawsuit was rejected; (2) there is any new evidence which is possible to change the original judgment or order; (3) the main evidence was not sufficient or had no force of proof; (4) the main factual basis for the original judgment or order has been modified or cancelled in accordance with the law; (5) the legal provisions were wrongly cited or any invalidated law or any law which had not become effective was applied; (6) the legal provisions on retroactivity were violated; (7) the administrative conciliation agreement violated the principle of voluntariness, or its contents violated the law, or damaged the state's benefits, public benefits or benefits of other people; (8) the trial procedure was illegal, and therefore affected the impartial order or judgment of the case; or (9) the judges, when trying the case, extorted or accepted bribes, or committed malpractices for personal gain, and therefore made the judgment by misusing the law. Article 10. The people's court shall accept a petition if it is filed again by the petitioner of a criminal case within two years after the criminal punishment was executed, and shall accept a petition filed in excess of two years if it falls under any of the following circumstances: (1) it is possible to pronounce the defendant of the original instance not guilty; (2) the defendant of the original instance files a petition to the people's court within the period provided for in the present article, but the people's court does not accept it; or (3) it is a difficult, complex or major case. Cases not conforming to the preceding paragraph shall not be accepted by the people's courts. Article 11. The people's court shall generally not file a civil case collateral to criminal proceedings for retrial if the petitioner only files a petition regarding the civil part, except that there is any evidence proving that the civil part is obviously inappropriate and the defendant of the original instance has the capacity to compensate. Article 12. The people's court shall not accept the application or petition for retrial filed by the applicant or petitioner regarding a civil or administrative case in excess of two years. Article 13. The people's court shall not accept the application or petition whose legal subject is unqualified for retrial. Article 14. The people's court shall not accept the application for retrying any of the following civil cases: (1) cases tried by the people's court in accordance with the summary procedure for recovering a debt, procedure for public invitation to assert claims or procedure for the bankruptcy repayment; (2) cases for which the people's court orders to cancel or not to enforce the arbitration award; or (3) cases for which the people's court has made a judgment or conciliation on dissolution of marriage, with the exception of those for which the parties apply for retrial with respect to the division of properties. Article 15. The people's court at a higher level shall generally not accept a case in application for retrial or a petition for which the people's court at the next higher level as the court of final appeal has sustained the original judgment after trying it in accordance with the procedure for trial supervision or which was rejected after being reexamined by the people's courts at two levels in accordance with the procedure for trial supervision. However, if the applicant for retrial or the petitioner provides new reasons which meet the conditions in Article 204 of the Criminal Procedure Law of the People's Republic of China, Article 179 of the Civil Procedure Law of the People's Republic of China, Article 62 of the Administrative Procedure Law of the People's Republic of China or Articles 7, 8 and 9 of the present provisions, or if the defendant of the original instance in a criminal case is possible to be pronounced not guilty, such a case shall be accepted. Article 16. The cases rejected by the Supreme People's Court through retrial order or judgment or through reexamination shall not be accepted even if the applicant for retrial or the petitioner refuses to accept the order or judgment and files an application for retrial or a petition. Article 17. The present opinions shall come into force on November 1, 2002. Where there is any previous provision related to the filing of cases for retrial which is inconsistent with the present opinions, the present opinions shall prevail. |
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