Perspective | The Practical Application of the Principles of Second Instance in Criminal Appeals by Criminal Lawyers
Published:
2025-01-17
Article 233 of the Criminal Procedure Law stipulates that the second-instance people's court shall conduct a comprehensive review of the facts determined and the laws applied in the first-instance judgment, without being limited by the scope of the appeal or protest. In practice, this "principle of comprehensive review" often fails to be implemented. On one hand, second-instance judges are still constrained by a presumption of guilt and have a sense of trust and closeness to the first-instance court, which is part of the same system. On the other hand, defense lawyers have not effectively explored the deeper implications of this principle to allow it to play a greater role in the second-instance process. In fact, in cases where the defendant in the first instance appeals after admitting guilt and accepting punishment, cases where the prosecutor disagrees with the protest but the victim files a civil appeal, cases where other co-defendants appeal without the defendant appealing, and cases where the defendant dies after the appeal, defense lawyers can leverage the "principle of comprehensive review" to provide more assistance to their clients.
Comprehensive Review Principle
Article 233 of the Criminal Procedure Law states: The people's court in the second instance shall conduct a comprehensive review of the facts determined and the applicable law in the first instance judgment, without being limited by the scope of appeal or protest.
In practice, this "comprehensive review principle" often fails to be implemented. On one hand, the judges in the second instance still cannot escape the shackles of presuming guilt, and they have a sense of trust and closeness with the first instance court as part of the same system; on the other hand, defense lawyers have not effectively explored the deeper connotations of this principle to allow it to play a greater role in the second instance process.
In fact, in cases where the defendant in the first instance pleads guilty and appeals, cases where the prosecutor disagrees with the protest but the victim files a civil appeal, cases where the defendant does not appeal but other co-defendants do, and cases where the defendant dies after the appeal, defense lawyers can leverage the "comprehensive review principle" to provide more assistance to their clients.
First, cases where the defendant appeals after pleading guilty in the first instance.
The guilty plea system can be seen as a kind of plea bargain: aiming to reduce the consumption of litigation resources in exchange for a lighter punishment for the defendant. However, in judicial practice, this system has deviated from its original purpose and has become a means of intimidation against the defendant, with "pleading guilty for leniency" distorted into "not pleading guilty for severity". (See my work "Should One Plead Guilty Early?")
Returning to the main point of this article: In cases where the defendant pleads guilty in the first instance and there is an appeal in the second instance, there is a risk of the prosecutor filing a protest.
In the 2019 "National Prosecutorial Criminal Prosecution Work Conference", it was pointed out: "If the defendant denies the criminal facts charged, does not actively fulfill the obligations of apology, returning stolen goods, and compensating for losses as stated in the written commitment, and appeals on the grounds of excessive sentencing, which meets the conditions for protest, the prosecutor's office should file a protest in accordance with the law. Especially at this stage, if the prosecutor's office proposes precise sentencing recommendations and the court adopts them, and the defendant appeals without justifiable reasons, a protest should be filed in principle."
Article 39 of the 2021 "Guiding Opinions on the People's Procuratorate Handling Guilty Plea Cases and Conducting Sentencing Recommendations" states: "In guilty plea cases, if the people's court adopts the sentencing recommendations proposed by the people's procuratorate to make a judgment or ruling, and the defendant appeals solely on the grounds of excessive sentencing, the people's procuratorate should file a protest in accordance with the law if the defendant's retraction of the guilty plea leads to obviously inappropriate leniency in sentencing."
Both documents mention that if the defendant appeals on the grounds of excessive sentencing, the procuratorate should file a protest. However, in reality, the premise for the defendant's guilty plea is that they must first acknowledge the criminal facts charged by the prosecution: "Guilty plea" means that the suspect or defendant voluntarily truthfully confesses their crime and has no objection to the charged criminal facts. (Supreme Court "Interpretation of the Criminal Procedure Law" Article 347)
If the reason for the defendant's appeal is to completely deny the facts determined in the first instance, then the so-called guilty plea loses its basis even more. Therefore, defense lawyers must pay attention to the choice of appeal reasons and handle the wording cautiously when assisting the defendant in filing an appeal. They should not provoke the prosecutor's office to file a protest merely because the defendant has appealed.
My experience is that when drafting an appeal, it should be as concise as possible. Important points or those that may seriously conflict with the guilty plea in the first instance can be raised after the second instance procedure is initiated. After all, the appeal only needs to achieve the purpose of initiating the procedure. We can use the "comprehensive review principle" to restate our defense points after the second instance procedure is initiated.
Moreover, I believe that if the appeal is written too comprehensively, it may actually hinder the hearing of the second instance. (See my work "Are the Contents of the Appeal and Defense Repetitive?")
Second, cases where the prosecutor does not protest against the victim's civil appeal.
According to Article 229 of the Criminal Procedure Law, the victim does not have the right to appeal; if they are dissatisfied with the criminal part of the judgment, they can only request the prosecutor to file a protest. If the prosecutor refuses to protest, the victim can still appeal separately regarding the civil part based on Article 228.
When lawyers represent such cases, they can leverage this "comprehensive review principle": regardless of whether the victim is satisfied with the civil part, they can express their dissatisfaction with the criminal part during the civil appeal process. After all, the basis for civil compensation is established on the premise that the facts and evidence of the criminal part are accurate and sufficient.
Third, cases where other co-defendants appeal while the defendant does not.
Article 233, paragraph 2 of the Criminal Procedure Law: In cases of joint crimes where only some defendants appeal, the entire case should be reviewed and handled together.
This leaves room for defense in the second instance for defendants who did not appeal in joint crime cases. Especially for those defendants who pleaded guilty later in the order, if they are concerned that appealing together with the main suspects will lead to a protest from the prosecutor's office, they can, under the guidance of their defense lawyer, wait until the second instance procedure is initiated to overturn the facts or sentencing determined in the first instance.
Additionally, the Supreme Court's "Interpretation of the Criminal Procedure Law" Article 389 provides more detailed clarification: In cases of joint crimes, if only some defendants appeal, or if the private prosecutor appeals only against some defendants' judgments, or if the people's procuratorate protests only against some defendants' judgments, the second instance people's court should review the entire case and handle it together.
Fourth, cases where the defendant dies after the appeal.
Article 390 of the Supreme Court's "Interpretation of the Criminal Procedure Law" states: In cases of joint crimes, if the appealing defendant dies and other defendants do not appeal, the second instance people's court should terminate the trial for the deceased defendant; however, if there is evidence proving the defendant's innocence, and it is confirmed as not guilty through absentia trial, a judgment should be made to declare the defendant not guilty.
If the defendant dies during the first instance, according to Article 16 of the Criminal Procedure Law: "The case should be dismissed, or not prosecuted, or the trial should be suspended, or the defendant should be declared not guilty." However, during the second instance, the defendant has already been found guilty in the first instance. If the trial is terminated at this point, it may lead to the eternal injustice of wrongful convictions.
Defense lawyers encountering such situations should firmly grasp the circumstances of innocence and comprehensively discuss the necessity of continuing the trial to avoid the second instance court hastily concluding the case.
The principle of no increased punishment upon appeal.
The situations of improper sentencing such as meritorious service, principal offenders, accomplices, and attempts that have not been completed do not belong to the discovery of new criminal facts. Article 237 of the Criminal Procedure Law states: (except for cases where the procuratorate appeals or the private prosecutor appeals) "In cases where the second-instance people's court hears appeals from the defendant or their legal representatives, defenders, or close relatives, the defendant's punishment shall not be increased. In cases where the second-instance people's court remands the case to the original trial people's court for retrial, except for new criminal facts or supplementary prosecution by the people's procuratorate, the original trial people's court shall also not increase the defendant's punishment." This is the legal basis for the principle of no increased punishment upon appeal.
This legal provision contains three levels of meaning:
First, cases where the procuratorate appeals or the private prosecutor appeals do not apply the principle of no increased punishment upon appeal.
From the perspective of legal defense, it is essential to strictly and cautiously avoid situations where the procuratorate improperly appeals due to the defendant's appeal.
From the perspective of litigation duties and legal principles, whether to file an appeal should be based on the procuratorate's independent judgment regarding the law applied and the facts determined in the first-instance judgment. However, as I mentioned in the article "Handling of Guilty Pleas and Withdrawal of Pleas," the Supreme People's Procuratorate's "work meeting" in 2019 and the "meeting minutes" in 2021 both emphasized: if a defendant in a guilty plea case appeals on the grounds of excessive sentencing, the procuratorate should file an appeal.
However, in practice, Article 382 of the Supreme Court's "Interpretation of the Criminal Procedure Law" clearly states that the first-instance court will only "send a copy of the appeal to the same-level people's procuratorate and the opposing party" within three days after the appeal period expires. In other words, the procuratorate has no legal basis for knowing the information that "the defendant has filed an appeal" during the appeal period. More straightforwardly, whenever the procuratorate files an appeal due to the defendant's appeal, it is the result of collusion between the court and the procuratorate.
As criminal defense lawyers, we have the responsibility and the right to oppose and even protest against this abnormal phenomenon.
Second, the core of the principle of no increased punishment upon appeal is "the defendant's punishment shall not be increased."
This principle has been characterized by the Supreme Court as "no substantial adverse re-judgment of the defendant's punishment." "Substantial adverse re-judgment" specifically manifests as:
(1) In cases tried together, if only some defendants appeal, the punishment of the appellant shall not be increased, nor shall the punishment of other co-defendants be increased;
(2) If the original judgment's determination of the crime is improper, the crime can be changed, but the punishment shall not be increased or adversely affect the execution of the punishment;
(3) If the original judgment's determination of the number of crimes is improper, the number of crimes can be changed, and the punishment adjusted, but the decided punishment shall not be increased or adversely affect the execution of the punishment;
(4) If the original judgment grants the defendant a suspended sentence, the suspension shall not be revoked or the probation period extended;
(5) If the original judgment does not declare a professional ban or prohibition order, it shall not be increased; if the original judgment declares a professional ban or prohibition order, the content shall not be increased or the duration extended;
(6) If the original judgment imposes a death sentence with a two-year suspension without restrictions on commutation or life imprisonment, it shall not restrict commutation or decide on life imprisonment;
(7) If the punishment imposed by the original judgment is improper and should have applied additional penalties but did not, it shall not directly increase the punishment or apply additional penalties. If the punishment imposed by the original judgment is excessively light and must be re-judged according to law, it should be retried according to the trial supervision procedure after the second-instance judgment or ruling takes effect.
Additionally:
Article 402 further clarifies on the basis of the aforementioned seven items that "if the people's procuratorate appeals only against the judgment of some defendants, or the private prosecutor appeals only against the judgment of some defendants, the second-instance people's court shall not increase the punishment of other co-defendants."
The two high courts and two ministries' 2019 "Opinions on Handling Certain Issues in Criminal Cases Involving Evil Forces" Article 18, Paragraph 3 states: "When hearing cases appealed by the defendant or the defendant's legal representatives, defenders, or close relatives, if the first-instance judgment incorrectly identifies a criminal organization, the second-instance court should correct it, and if it meets the standards for identifying evil forces or criminal groups, it should make corresponding identifications; if the first-instance judgment incorrectly identifies evil forces or criminal groups, it should be corrected but not upgraded; if the first-instance judgment does not identify evil forces or criminal groups, it shall not increase the identification."
Third, the procuratorate must have "new criminal facts" to supplement the prosecution in cases remanded for retrial.
Whether it is the same type of crime or different types of crimes, in cases remanded for retrial, the new evidence submitted by the procuratorate regarding the originally charged criminal facts cannot be considered as supplementary prosecution.
The 100th issue of "Criminal Trial Reference" interprets the "Zhong Mougui, Wu Mouyun, and others intentional injury case" as: "New criminal facts should refer to criminal facts that were not originally charged, including both conviction facts and sentencing circumstances; they must also be new facts that the people's procuratorate supplements for prosecution. Situations such as errors in the amount determined in the original judgment, meritorious service, principal offenders, accomplices, and attempts that have not been completed do not belong to the discovery of new criminal facts."
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