Civil second-instance trial procedures refer to the procedures in which a party is dissatisfied with a civil judgment made by a court of first instance that has not taken legal effect, and in accordance with the legal procedures and time limits, requests the people's court at the next higher level to hear the case and make a final judgment.
China implements a two-instance final adjudication system, so the second-instance trial procedure is both an appeal procedure and a final appeal procedure. In the second-instance trial procedure, the litigation participants of each party should make adequate pre-trial preparations, which is a prerequisite for the efficient and orderly progress of the second-instance trial procedure and the full use of procedural functions. To do a good job of preparing for trial in second-instance civil cases, we can start from the following aspects.
OneClarify the scope of the trial and fix the appeal request
1.Clarify the scope of trial of second-instance trial procedures
First, the people's court of second instance hears the appeal request of the parties. Where the parties do not submit a request, it is not to be heard. The trial of the second instance revolved around the appellant's appeal request, and the determination of facts and the application of law related to the appeal request. There are two salient features of this scope: First, the content of the trial includes both factual and legal trialsSecond, the scope of trial is limited by the scope of appeal.
Second, in the second-instance trial procedures, where the plaintiff in the original trial adds an independent claim or the defendant in the original trial raises a counterclaim, the second-instance trial court may conduct mediation on the newly added claim or counterclaim on the basis of the parties' voluntariness, and if mediation fails, inform the parties to file a separate lawsuit. Where both parties agree that the second-instance trial court will hear the case together, they may make a joint judgment. In other words, the scope of the second-instance trial should be consistent with the first-instance trial in principle, and if the first-instance litigation claim or counterclaim exceeds the first-instance litigation claim or counterclaim, mediation shall be the principle, and the judgment can only be made in the second-instance trial procedure only if both parties agree to waive the interests of the trial level.
2.Clarify the applicable circumstances for remand for retrial
In judicial practice, some parties regard "remand for retrial" as a catch-all petition when clarifying the appeal request, believing that the first-instance judgment is wrong and can be remanded for retrial, which is a misunderstanding. If the request for appeal advocates remand for retrial, the grounds for appeal should include the statutory circumstances under which remand applies.
First, the original judgment seriously violated legal procedures, including: omission of parties, illegal default judgment, illegal composition of the trial organization, failure to recuse the adjudicators who should have recused themselves, failure to recuse the person who should have been recused, failure to litigate on behalf of the person who lacks the capacity to litigate, illegal deprivation of the parties' right to debate, and so forth.
Second, where the original people's court has not made a trial or judgment on litigation claims that have already been raised by the parties in the first-instance trial procedures, the second-instance trial court may conduct mediation on the basis of the principle of the parties' voluntariness, and if mediation fails, remand for new trial.
Third, where a party who must participate in the litigation or a third party with the right to make an independent claim does not participate in the litigation during the first-instance trial procedures, the second-instance trial court may mediate on the basis of the principle of the parties' voluntariness, and where mediation fails, remand for new trial.
In addition, where the basic facts found in the original judgment were unclear and it was difficult to ascertain the facts through the second-instance trial procedures, the case was remanded for new trial. However, it is up to the court of second instance to make a judgment on whether the basic facts of the case can be ascertained through the presentation of evidence by both parties or the court's ex officio collection of evidence and on-site inspection during the second-instance trial procedures.
3.Clear, precise and specific requests for appeals
If the specific appeal request is not specified at the time of appeal, it may be amended in the pre-trial preparation stage of the second-instance trial, so that the appellant's litigation status in the first instance is different, and in combination with the litigation claims of the second-instance trial, the appeal request is clear, accurate and specific. Clearly submitting a specific appeal request to the court of second instance will help the judge of the second instance accurately determine the focus of the trial and facilitate the efficient development of the second-instance trial procedure.
For example, in an infringement dispute, if the defendant of the original trial files an appeal, it may be that the original judgment is dissatisfied with the determination of the legal relationship between the parties or the subject of tort liability, it may be that it is not satisfied with the determination of the size of its own liability, or it may be that it does not recognize the determination of one or several losses amount, then the corresponding appeal requests are respectively the subject of responsibility for the revision of the judgment, the proportion of liability for the revision of the judgment, and the amount of compensation for the modification of the judgment.
In judicial practice, some parties, based on a simple understanding, list many claims that do not have the benefit of litigation or are not enforceable in the appeal request, but they cannot be supported by the court, such as requesting that the appellee lack good faith, and that the original trial court arbitrarily adjudicated.
IISort out the facts of the case and strengthen weak evidence
After receiving the first-instance judgment, the parties are often most concerned about the judgment result, and file an appeal if they do not recognize the judgment result, ignoring the determination of facts in the first-instance judgment and the reasoning part of the court's opinion. The trial of the second-instance trial procedure is conducted on the basis of the first-instance judgment, and it is not a complete retrial of the case, and it is obviously not a targeted appeal to present one's own litigation claims or defense claims in the first-instance trial in front of the second-instance judge.
1.Sort out the facts ascertained by the original trial and determine the factual issues in the second instance
The determination of facts in civil litigation refers to the process by which the people's court deduces the legal facts of a case in accordance with statutory rules through the determined evidence. The facts ascertained in the process of determining facts are not ordinary facts, but facts of legal significance to the adjudication of a case. Errors in the determination of facts, which are one of the grounds for appeal, mainly refer to the use of false or forged facts as the basis for a verdict. The basic facts refer to the facts used to determine the qualifications of the parties, the nature of the case, the civil rights and obligations, and so forth, which have a substantial impact on the outcome of the original judgment or ruling, and the determination of the basic facts is unclear mainly refers to the determination of the basic facts that are untrue or inaccurate, or the failure to investigate the facts of the case clearly.
The second-instance people's court's review of the facts related to the appeal request revolves around the appellant's claims and the evidence presented by both parties. In the preparation stage of the appeal, the parties should comprehensively sort out the facts identified in the first-instance judgment, determine the key facts that were not asserted by their own party in the first-instance trial but affected the outcome of the judgment, the facts that have been adduced in the first-instance trial but have not been confirmed by the first-instance court, and the disputed facts that have been determined in the first-instance instance to have not fulfilled the burden of proof, and pay attention to them as the focus of factual disputes.
The statement of the disputed facts of the case in the appellate brief should be expressed in chronological order according to the legal relationship of the case, but it is important not to make a comprehensive summary of the disputed facts without distinguishing between the facts that have been ascertained and the background facts that are not of legal significance, which will blur the main point.
2.Read the case file comprehensively and know the facts of the case
For the parties who are absent from the first-instance trial and the newly entrusted litigants of the second-instance trial, they should apply to the court of first instance for access to the first-instance file materials during the preparation stage of the appeal, and the evidence submitted by the parties and the records of the previous cases shall be the focus of reading the case file. For the first person who participated in the first-instance litigation procedure, they can also comprehensively sort out the facts of the case by reading the case file, and can only calmly answer questions when facing the second-instance judge's investigation of the key facts of the case.
The litigation acts carried out by a party in the first-instance trial procedure are still binding on the party in the second-instance trial procedure. When parties overturn litigation conduct carried out in the first-instance trial procedures, they shall explain the reasons, and where the reasons are not sustained, they are not supported. Therefore, if there is a change in the party's claim on the facts he or she has personally experienced in the second-instance trial procedure, there should be sufficient and reasonable grounds, otherwise not only will the new claim not be accepted by the second-instance court, but it will also affect the second-instance judge's judgment on its creditworthiness.
3.Strengthen weak evidence and complete the evidence chain
The presentation of evidence in the second instance should be completed within the time limit specified in the Notice of Presentation of Evidence, focusing on the focus of the factual dispute, supplementing the original weak evidence, and even if direct evidence cannot be obtained, the chain of evidence can be completed by supplementing indirect evidence that has a mutually corroborative effect. In terms of the probative power of evidence, the court of second instance obviously prefers the objective evidence originally formed, because the focus of the dispute over the facts of the case has already been formed in the first-instance trial, and the evidence formed in the litigation or the evidence with strong subjectivity, such as witness testimony, is easily affected and interfered by human factors, thereby weakening its probative force.
For evidence that has already been formed or obtained in the first-instance trial, where the evidence is relevant to the determination of the basic facts of the case, and the parties did not submit evidence within the time limit due to intentional or gross negligence, the second-instance trial court will not accept new evidence that does not belong to the second-instance trial.
4.Depending on the type of evidence, prepare for the presentation of evidence
Evidentiary materials that have already gone through the procedures for presenting evidence and examining evidence in the first-instance trial do not need to be submitted again at the second-instance trial. For new evidence submitted in the second-instance trial, the party presenting evidence shall draft a catalogue of evidence, list the evidence number in groups, and give a brief explanation of the name of the evidentiary materials, the object of proof, and the content.
Where it is necessary to apply for witnesses to appear in court to testify in the second-instance trial, an application for witnesses to appear in court to testify shall be submitted to the court before the time limit for presenting evidence is completed, and the second-instance trial court is to review it. The application shall clearly state the witness's name, occupation, residence, the main content of the testimony, the relevance of the testimony to the facts to be proven, and the necessity for the witness to appear in court to testify. Where witnesses are truly unable to appear in court to testify due to health or other reasons, they may testify by written testimony or other means upon application and with the permission of the people's court. Testimony provided by witnesses who do not appear in court without a legitimate reason in writing or other means must not be the basis for determining the facts of the case.
Copies and text collation materials should be submitted for audio-visual evidence, and the original recording medium should be brought for verification by the court of second instance.
Electronic data evidence, such as mobile phone text messages, e-mails, instant messaging information, electronic transaction records, web page information, and so forth, should be submitted in original, and the output medium should be provided to prepare for display in court, or the content of the electronic data evidence should be preserved by a notarial deed.
IIIClarify the issues of applicable law and provide effective reference
1.The appeal brief should be logical and focused
The appellate brief is the most direct and effective way for the appellant to explain the facts and reasons on which the appeal is based to the court of second instance, and it is also one of the keys to the success of the appeal. A well-structured, logically clear, well-argued, and precisely worded appeal brief will help the judge of the second instance to capture the reasons on which the appellant's appeal is based as soon as possible. It is clear that a long exposition or a lack of logical structure will not achieve the desired results.
Based on the basis of the claim, the appellant should discuss the focus of the dispute over the application of law around the litigation claim and the facts on which it is based, and accurately explain the basic legal basis on which it is based, so as to refute the other party's viewpoint or the original trial court's determination. The angle that is most likely to overturn the legitimacy of the original judgment should be selected, and the most convincing angle should be listed at the top of the discussion. Targeted sub-point discussion and summary of subheadings are conducive to highlighting key points and hitting the nail on the head.
The appeal brief should be avoided as a catharsis of personal subjective emotions, and emotional expressions and cross-examinations are not factors to be considered in the acceptance or support of the appellant's appeal of facts and reasons in appeal. At the same time, empty rhetoric should be avoided, and it is not necessary to reproduce the contents of the first-instance judgment in large paragraphs.
2.Use similar case search reports to support your own views
Searching for similar cases that are similar to pending cases in terms of basic facts, focus of disputes, and application of law, and that have already taken effect as a judgment of the people's court is an effective argument for demonstrating the correctness of one's own viewpoint.
The scope and rank of the search for judgments and judgments in similar cases should be based on the guiding cases, typical cases, and cases in which judgments and judgments have taken effect issued by the Supreme People's Court, reference cases released by the High People's Court of this province, and cases in which the judgments and judgments of the people's court at the level above have taken effect.
It should be noted that it is necessary to accurately identify and compare the similarities between the pending cases and the search results, and summarize them realistically to prove their own views. If there are some discrepancies between the basic facts of similar cases and the pending cases, they should be truthfully stated, and the judge of the second instance should judge whether to refer to and apply them by reference, and should not avoid the important and trivialize them.
3.Clarify the willingness to mediate and frame the mediation plan
In the pre-trial preparation stage of the second instance, the parties themselves or the litigants should clarify whether they are willing to mediate through communication with the parties, and negotiate and determine their own basic mediation plan, which is conducive to fully grasping the mediation opportunities in the second-instance trial procedure and substantively resolving the contradictions and disputes between the parties.