China
Judgments and orders made by the courts below the Supreme People’s Court can be appealed once to the higher court, but as noted above, judgments and orders of second instance courts are generally final and binding upon the parties. After a second instance judgment, the parties may only apply to the higher court for a retrial in exceptional circumstances. The case will need to have material defects in the previous proceedings or be of significant interest from a policy, legal or social justice perspective before a retrial can be granted.
An application to appeal a judgment should be filed within six months from either: (i) the effective date of the judgment or ruling; or (ii) the date when the party seeking to appeal knows or should have known the particular circumstances in which retrial should be granted.
Appeal proceedings take place in two stages. Firstly, the higher court will examine whether there are sufficient reasons and/or evidence to initiate the retrial process. During this phase of proceedings, if the party applies for retrial on the basis that “[t]he basic facts found in the original judgment or ruling are not evidenced”, the court will need to examine the facts, evidence, and the merits in order to determine whether this allegation is true. If the party applies for retrial on the basis that “[t]he formation of the tribunal is illegal or any judge who shall be disqualified in accordance with law fails to be disqualified”, then the court will not need to examine the merits and/or facts of the case but only review the procedural defect.
Secondly, once the higher court grants the initiation of the retrial, the case is completely reconsidered. The new trial proceedings start from the very beginning – a new tribunal will be formed, the parties may submit their statements and evidence again, and hearings on the merits will be arranged. The higher court may, at its discretion, conduct retrial of the case by itself or may designate another court, including the first-instance court, to hear the case. The judgment which is handed down at the conclusion of the retrial is deemed to be a first instance judgment which is appealable.
Parties can file an appeal against a first instance judgment for alleged fact-finding errors or errors in the application of the law or procedure within 15 days of notification of the judgment. The appeal period would be 30 days for parties who have no domicile in Mainland China. In these circumstances, the higher court would review both the facts and the application of the laws and, if necessary, hold an oral hearing. Generally speaking, an appeal case is completed within three months of the court’s acceptance of the appeal. If an extension is needed, approval from the court’s president is required. An appeal suspends the effect of the appealed judgment, meaning that the judgment of the first instance would not become effective/enforceable directly if the case was appealed.