Perspective | A Comprehensive Interpretation of the Initiation Methods and Court Hearing Procedures of Criminal Second Instance Proceedings
Published:
2025-01-10
The main differences between the second instance of criminal proceedings and the first instance focus on the following six aspects.
The main differences between the second instance of criminal proceedings and the first instance mainly focus on the following six aspects:
First, the second instance does not have special provisions and refers to the trial procedures of the first instance.
For example, the pre-trial preparation work, pre-trial meetings, confirming whether the participants in the lawsuit are present, deliberating on the case, and announcing the judgment or ruling, etc., can all refer to the first instance.
Second, the judgment or ruling of the first instance is read by the judges.
During the court investigation stage, in the first instance, the prosecutor reads the indictment to start. In the second instance, the main task of the prosecutor present in court is to 'maintain the correct judgment or ruling of the original trial court and suggest the court uphold the original judgment' (Article 446 of the Criminal Procedure Rules of the Procuratorate). His role has changed from the offensive side in the first instance to the defensive side. Moreover, the appellant (mainly referring to the defendant in the first instance) is dissatisfied with the ruling made by the court system. Therefore, it should be the responsibility of the second instance court to read the judgment or ruling of the first instance.
Third, in cases where there is only an appeal and no protest, the appellant should first read the appeal.
The court hears any dispute based on one party's dissatisfaction with the other party's accusation. Therefore, the accuser should first state their views to present the focus of the dispute. In criminal second instance cases, the vast majority are initiated by the original defendant's appeal. Therefore, in cases where the original procuratorate has not filed a protest, the appellant should first read the appeal or state the reasons for the appeal; in cases with both an appeal and a protest, it is based on the failure of the procuratorate to complete its accusation task in the original trial process. Therefore, the prosecutor should still read the protest first.
Here, it is necessary to remind lawyer friends to pay attention: during the second instance process, prosecutors can no longer be referred to as 'public prosecutors', but should be called 'prosecutors present in court'.
If the first instance is a private prosecution case, and both the private prosecutor and the defendant appeal, the private prosecutor should read first.
Fourth, the appellant should first present evidence or express opinions on the evidence disputed in the first instance.
In cases where the procuratorate has not filed a protest, any stage of the second instance procedure should be initiated first by the appellant and their defense counsel.
One of the main reasons for the second instance hearing is that 'the defendant, private prosecutor, and their legal representatives raise objections to the facts and evidence determined in the first instance.' (Article 234 of the Criminal Procedure Law) If the appellant has new evidence to present, it should be presented first, followed by the prosecutor present in court expressing opinions on the evidence; if the appellant has no new evidence to submit, then the appellant should express opinions on the disputed facts and evidence from the first instance, and the prosecutor present in court should refute.
From the perspective of defense lawyers representing appeal cases, the second instance should submit new evidence as much as possible to promote the possibility of a hearing. Please refer to my article 'Several Tips to Promote the Hearing of the Second Instance'.
Fifth, the debate stage should also be initiated by the appellant.
As mentioned earlier, whoever initiates the second instance procedure has the right and obligation to actively attack in every stage of the trial. The key point of the second instance debate is to present new viewpoints; please also refer to my article 'Is the Content of the Appeal and Defense Repetitive?'.
Sixth, co-defendants who have not filed an appeal may not be summoned to court.
This point needs to be particularly noted by lawyer friends. There have been defense lawyers who, due to not paying attention to the provisions of Article 399, Item 3 of the Supreme Court's Interpretation of the Criminal Procedure Law, raised objections to the second instance procedure on the grounds that co-defendants were not present in court, and were ridiculed by judges and prosecutors.
From the perspective of defense skills, if the appellant believes that a co-defendant who has not filed an appeal is important for clarifying the facts of the case, they can submit a request before the hearing, asking for their appearance as a witness.
The above six points are significant differences between the criminal second instance procedure and the first instance. If there are any errors or omissions, please correct them.
Reference provisions:Article 398 of the Supreme Court's Interpretation of the Criminal Procedure Law states: 'In hearing appeal and protest cases, in addition to referring to the relevant provisions of the first instance procedure, the following provisions should be followed: (1) In the court investigation stage, after the judges read the first instance judgment and ruling, in appeal cases, the appellant or defense counsel should first read the appeal or state the reasons for the appeal; in protest cases, the prosecutor should first read the protest; in cases with both an appeal and a protest, the prosecutor should read the protest first, followed by the appellant or defense counsel reading the appeal or stating the reasons for the appeal; (2) In the court debate stage, in appeal cases, the appellant and defense counsel speak first, followed by the prosecutor and litigation agent; in protest cases, the prosecutor and litigation agent speak first, followed by the defendant and defense counsel; in cases with both an appeal and a protest, the prosecutor and litigation agent speak first, followed by the appellant and defense counsel.
There are significant differences in the initiation methods of the criminal second instance procedure compared to the first instance. There are two initiation methods for the first instance of criminal cases: public prosecution and private prosecution. The initiation of the second instance procedure includes the defendant and private prosecutor filing an appeal, the public prosecution organ filing a protest, and the parties in criminal incidental civil litigation filing an appeal. The legal consequences triggered by these three methods are also different.
First, the initiation of the appeal.
Article 227 of the Criminal Procedure Law states: 'Defendants, private prosecutors, and their legal representatives have the right to appeal to the next higher people's court against the judgment or ruling of the first instance made by local people's courts at all levels. The defendant's defense counsel and close relatives may file an appeal with the defendant's consent.'
First,defendants in the first instance of criminal cases have the right to file an appeal;
Second,if the defendant is a minor or a person with limited civil capacity, their legal representative also has the right to file an appeal. Moreover, the legal representative's right to appeal exists independently of the defendant. If the defendant's expression of intent regarding whether to file an appeal contradicts that of their legal representative, the opinion of the legal representative should prevail.
Third,the defendant's defense counsel and close relatives also have 'limited appeal rights'. The so-called 'limited' means that the defense counsel and close relatives of the defendant must obtain the defendant's approval and consent to file an appeal.
The Supreme People's Court's interpretation of the application of the "Criminal Procedure Law of the People's Republic of China" Article 379, Paragraph 2 emphasizes again: "The defendant's defender and close relatives may file an appeal with the defendant's consent, and they should also specify their relationship with the defendant, and the defendant should be the appellant." "With the defendant's consent" should be understood as a preliminary procedure.
Finally,It is particularly important to note that the appeal period against the first-instance judgment is ten days, starting from the second day after receiving the judgment. The subject referred to as "receiving the judgment" should be limited to the defendant, the plaintiff, and their legal representatives, who are the three categories with independent appeal rights. The appeal period for the defender and close relatives should still start from the date the defendant receives the judgment.
Second, the initiation of a protest.
Article 228 of the Criminal Procedure Law states: "When the local people's procuratorate believes that the judgment or ruling of the first instance by the people's court at the same level is indeed erroneous, it shall file a protest with the higher-level people's court."
It should be noted that:First,The object of the procuratorate's protest is the judgment or ruling of the court at the same level; if the higher-level procuratorate believes that the lower-level procuratorate's protest is inappropriate, it can withdraw the protest to its own level court.
Second,The protest period of the procuratorate is the same as the appeal period. It is ten days for judgments and five days for rulings.
Third,In judicial practice, it often occurs that the defendant and the prosecution receive the judgment and ruling at different times. Before filing an appeal, the defense lawyer should pay attention to the specific time when the procuratorate receives the judgment and ruling. This is to avoid situations where the procuratorate colludes with the first-instance court to alter the protest period due to the defendant's appeal and maliciously files a protest.
Third, the victim's right to request a protest.
Article 229 of the Criminal Procedure Law states: "If the victim and their legal representative are dissatisfied with the judgment of the first instance by the local people's court, they have the right to request the people's procuratorate to file a protest within five days of receiving the judgment. The people's procuratorate shall make a decision on whether to protest within five days of receiving the request from the victim and their legal representative and respond to the requester."
According to this provision, the victim does not have independent appeal rights. If they are dissatisfied with the first-instance judgment, they can only apply to the people's procuratorate to request a protest. Moreover, the deadline for submitting this request is only five days.
Fourth, the appeal rights of parties in criminal incidental civil cases.
The Supreme People's Court's interpretation of the application of the "Criminal Procedure Law of the People's Republic of China" Article 408 states: "In criminal incidental civil litigation cases, only the parties in the incidental civil litigation and their legal representatives can appeal, and the judgment of the first instance in the criminal part becomes legally effective after the appeal period expires."
First,The defendant in a criminal case has the right to appeal the criminal part, and also has the right to appeal only the incidental civil part, or to appeal both the criminal and incidental civil parts.
Second,The victim in a criminal case has the right to independently appeal the incidental civil part, but does not have the right to appeal the criminal part.
Third,If the defendant does not appeal, the procuratorate does not file a protest, and only the victim appeals the incidental civil part, the judgment of the first instance in the criminal part becomes legally effective after the appeal period expires.
Finally,It is particularly noteworthy that this interpretation Article 409 also states: "The second-instance people's court shall review the entire case for appeals regarding the incidental civil part when the criminal part has already become legally effective, and shall handle it according to the following circumstances: (1) If the criminal part of the first-instance judgment is not improper, only the incidental civil part needs to be handled; (2) If the criminal part of the first-instance judgment is indeed erroneous, it shall conduct a retrial of the criminal part according to the trial supervision procedure and hear the incidental civil part together with the criminal part."
Therefore, although the victim in a criminal case does not have the right to appeal against the criminal part of the judgment, there is still a possibility of the criminal part being retried after appealing in the name of the incidental civil part. This is worth attempting with a more experienced defense lawyer in some controversial cases.
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