Recently, the Supreme People's Court and the Supreme People's Procuratorate jointly issued the "Opinions on Several Issues Concerning the Standardized Handling of Cases with Procuratorial Suggestions for Civil Retrials" (hereinafter referred to as the "Opinions"). The "Opinions" provide for the initiation, receipt and transfer of materials, and service of results in cases of procuratorial suggestions for civil retrial. Shi Xining, director of Beijing Jingkang Law Firm, co-director of the Institute of Property Rights and Land System of Northwest University of Political Science and Law, and distinguished professor of the School of Law of Northwest University of Political Science and LawI would like to take you to interpret several important provisions in the Opinions.
Key interpretations
First of all, let's take you to interpret the key terms:
Article 1Procuratorial suggestions for civil retrial are an important way for the people's procuratorates to carry out legal supervision of effective civil judgments, rulings, and mediation documents. The people's courts and people's procuratorates shall strictly follow the provisions of the "Civil Procedure Law of the People's Republic of China" on procuratorial recommendations for retrial, and perform trial and legal supervision duties in accordance with law and regulations. People's procuratorates should adhere to the supervision standards that combine legality and necessity, increase the timeliness and effectiveness of supervision, and standardize the application of retrialsProcuratorial recommendations；The people's courts should persist in accepting supervision in accordance with law, increase their initiative and consciousness in accepting supervision, promptly handle cases with procuratorial suggestions for civil retrial, and jointly preserve judicial fairness.
First of all, let's be clearThe difference between a procuratorial suggestion and a prosecutorial counter-appeal:
1.Procuratorial suggestions cannot immediately trigger a retrial of an effective judgment, ruling, or mediation document, but they can strengthen cooperation and cooperation between the people's courts and the people's procuratorates in trial supervision, and can prompt the people's courts to discover and correct mistakes.
2.Procuratorial suggestions are different from prosecutorial counter-appeals raised by higher-level people's procuratorates, and procuratorial suggestions are supervisory suggestions issued by people's procuratorates to the people's courts at the same level.
Article 3People's procuratorates generally do not apply the method of submitting a procuratorial recommendation for retrial to conduct oversight of effective civil judgments, rulings, or mediation documents made by the people's court at the same level after discussion by the adjudication committee.
Clerical errors or flaws in the people's courts' effective civil judgments, rulings, or mediation documents are not circumstances for submitting a procuratorial recommendation for retrial, and the people's procuratorate may submit a recommendation for improving work.
In essence, procuratorial suggestions are of a suggestive and coordinated nature, and their formality is weaker than that of a prosecutorial counter-appeal. Therefore, on the premise that the judgment, ruling, or mediation document made by the court at the same level has already passed the trial supervision procedures prescribed by law, it is not appropriate to supervise such situations by means of retrial procuratorial suggestions. As the highest adjudication organization within all levels of courts, the adjudication committee's effective documents made after discussion are more serious and final, and it is not appropriate to conduct supervision in the form of retrial procuratorial recommendations.
Article 4People's procuratorates submitting procuratorial suggestions for retrial shall generally be discussed and decided upon by the procuratorial committee. Where there are special circumstances, the people's procuratorate may consult with the people's court at the same level to resolve the issue.
This article of the "Opinions" clarifies the "pre-procedure" for the procuratorate to put forward a procuratorial suggestion for retrial, that is, it should generally (in principle) be discussed and decided by the procuratorial committee, and the procuratorate and the law shall be consulted under special circumstances. This is also in line with the formal and suggestive requirements of the procuratorial recommendation itself.
Article 6The people's courts shall compile a case number within 7 days of receiving the procuratorial suggestions for retrial that meet the requirements and relevant procuratorial case materials, include them in the case flow management, conduct a review in accordance with law, and inform the people's procuratorate.
Where that court or a higher level people's court has already made a ruling rejecting an application for retrial, it does not impact the people's court's acceptance of a procuratorial recommendation for retrial submitted by the people's procuratorate at the same level.
Where the people's procuratorate has already ruled on a retrial in a case where the people's procuratorate has submitted a procuratorial recommendation for retrial but has not yet completed trial, the people's court shall merge the procuratorial suggestion for retrial into the retrial case and try it together, and notify the people's procuratorate in writing. Where the case has already been ruled by the people's court at the level above for retrial but has not yet been concluded, the people's court at the same level may send the procuratorial suggestion for retrial and the procuratorial case materials to the people's court at the level above and inform the people's procuratorate that submitted the procuratorial suggestion for retrial.
This article of the "Opinions" clarifies that the people's courts receive procuratorial suggestions for retrial and their inclusion in the case management process, and after the people's courts receive the materials that meet the conditions, they have the first to compile a case number within seven days, the second is to include them in the case process management, and the third is to inform the people's procuratorate.
Article 10Civil cases in which the people's courts adopt a procuratorial recommendation for retrial to initiate a retrial are to be tried in accordance with the procedures provided for in Article 402, Paragraph 1, Items 3 and 4 of the "Supreme People's Court's Interpretation on the Application of the Civil Procedure Law of the People's Republic of China". In any of the following circumstances, the people's procuratorate may appoint personnel to appear in court:
1) The people's procuratorate finds that the disposition of the original case harmed the national interest or the societal public interest;
2) The people's procuratorate finds that there was false litigation in the original case;
3) Evidence that the people's procuratorate investigates and verifies needs to be presented to the court;
4) It has a major social impact or other circumstances that make it necessary to appear in court.
Where the People's Procuratorate appoints personnel to appear in court, it may refer to the procedures provided for in Article 402, Paragraph 1, Item 2 of the "Supreme People's Court's Interpretation on the Application of the Civil Procedure Law of the People's Republic of China"**.
This article of the "Opinions" is a provision on the procuratorate sending personnel to appear in court. Under special circumstances, the procuratorate may send personnel to appear in court, and the procuratorate's personnel appearing in court need to express their opinions or opinions, so the order of the trial is different from the aforesaid order, but can refer to the provisions of Article 402, Paragraph 1, Item 2 of the Interpretation of the Civil Procedure Law on the "order of retrial of the protest", that is, "the protest organ shall first read out the protest, then the party applying for the protest shall make a statement, and then the respondent shall reply and the other parties to the original trial shall express their opinions".
To sum up, the relevant background of the Opinions is that some of the provisions are more principled and lead to more content, and at the same time, the Opinions were formulated and promulgated in the context of the current Civil Procedure Law (amended in 2021, the same below), with the purpose of standardizing the procedures for the people's courts and people's procuratorates to handle cases of procuratorial suggestions for civil retrial, improving the quality and effectiveness of legal supervision and judicial credibility, and promoting judicial fairnessIt is to standardize the work process of the procuratorate and improve the efficiency of communication between the procuratorate and the court.
Director Shi reminded
Demolition and relocation is a long-term struggle, which requires comprehensive professional knowledge, control of the overall situation, and rational application of the law. Even a lawyer with many years of litigation experience is constantly learning and Xi updating in order to calmly analyze and make correct judgments in a case. For non-law-abiding people, this is a huge subject that cannot be achieved by just a short period of time. Therefore, when encountering any demolition problems, you may wish to ask a lawyer and carry out professional rights protection under the guidance of a lawyer.