· Document Number：No. 206 [2011] of the Higher People’s Court of Beijing

· Area of Law： Judicial Assistance Legislative Affairs

· Level of Authority： Local Judicial Documents

· Date issued：06-21-2011

· Status： Effective

· Issuing Authority： Beijing Municipality

Notice of the Higher People's Court of Beijing on Issuing the Guiding Opinions of the Higher People's Court of Beijing on the Handling of Protests by Procuratorates in Civil Matters
(No. 206 [2011] of the Higher People's Court of Beijing)
The No. 1 Intermediate People's Court and the No. 2 Intermediate People's Court of Beijing; Beijing Intermediate Railway Transport Court; the people's courts of all districts and counties; and all railway transport courts:
The Guiding Opinions of the Higher People's Court of Beijing on the Handling of Protests by Procuratorates in Civil Matters, as deliberated and adopted at the 6th (275th in total) session of the Judicial Committee of the Higher People's Court of Beijing on June 13, 2011, are hereby issued for your compliance and implementation. Please report the problems encountered in implementation to the trial supervision division of this Court in a timely manner.
June 21, 2011
Guiding Opinions of the Higher People's Court of Beijing on the Handling of Protests by Procuratorates in Civil Matters (2011 Revision)
To regulate the relevant work of the courts of Beijing in the handling of protests by procuratorates in civil matters (hereinafter referred to “protest cases”) and maintain justice and authority of courts, we hereby put forward the following guiding opinions in accordance with the Civil Procedure Law of the People's Republic of China, the Several Opinions of the Supreme People's Court and the Supreme People's Procuratorate on Legal Supervision over Civil Trial Activities and Administrative Litigation (for Trial Implementation) and the related judicial interpretations of the Supreme People's Court and in light of the judicial practice of the courts of Beijing:
I. Acceptance of protest cases
1. The people's court shall, after receiving the protest materials from the people's procuratorate at the same level, examine the completeness of the protest materials (including but not limited to a written protest and protest files). If the protest materials are incomplete, it shall notify the people's procuratorate to supplement the protest materials in a timely manner; if the protest materials are complete, it shall examine them in a timely manner.
2. For a protest case, the people's court accepting the protest shall render a ruling on retrial within 30 days after receiving the written protest. A case under any of the circumstances specified in items (1) to (5) of paragraph 1 of Article 179 of the Civil Procedure Law may be transferred to the people's court at the next lower level for retrial.
3. A protest by the people's procuratorate regarding any of the following cases shall not be accepted by the people's court:
(1) a case that is tried by the people's court under the special procedures, procedures for urging repayment of debts, procedures for public summons, or bankruptcy liquidation procedures for enterprises (legal persons) as prescribed in the Civil Procedure Law;
(2) a case closed through mediation;
(3) a case in which a judgment is made to dissolve a marriage or adoption;
(4) a case withdrawn or deemed withdrawn by a party;
(5) a case in which the parties have reached conciliation in execution and the conciliation agreement has been performed fully or in part; and
(6) a case regarding which the same people's procuratorate files a protest again.
Where the procuratorate files a protest regarding a case specified in item (2) of this Article on the ground that the national or public interests are damaged, the protest shall be accepted.
4. Where a people's procuratorate files a protest against any of the following rulings of the people's court, the people's court shall not accept it:
(1) a ruling on revocation or non-revocation of an arbitral award;
(2) a ruling on dismissal of a jurisdictional challenge or a ruling on transfer of a case to the court having jurisdiction;
(3) a ruling on assumption of litigation costs;
(4) a ruling on property preservation or advance execution;
(5) a ruling on a creditor's priority in repayment of debt or a ruling on terminating the bankruptcy debt repayment procedure, as made in the bankruptcy procedures; or
(6) a ruling made in the enforcement procedures.
5. Where a people's court is examining a case to decide whether the retrial procedure is initiated, it shall, after receiving the protest materials from the people's procuratorate regarding the same case, terminate the examination, handle it as a protest case, and notify the parties concerned.
Where, before making a ruling on the retrial of a protest case, the people's court accepting the protest finds that the relevant people's court has ruled to retry this case, it shall return the protest materials to the people's procuratorate that files the protest, together with a letter of explanation. After the retrial of the case is closed, the retrial court shall send a written retrial judgment to the people's procuratorate that files the protest.
Where, after making a ruling on the retrial of a protest case, the people's court accepting the protest finds that the relevant people's court has ruled to retry this case, the retrial court shall try the case in a combined way.
6. The people's court shall serve a written retrial ruling upon the people's procuratorate that files the protest, and serve the written retrial ruling, as well as the written protest and the written petition (application) of the party concerned, upon all parties concerned according to the statutory procedures.
II. Trial of protest cases
7. The people's court shall hold an open hearing of a protest case, and notify, in writing three days before the hearing, the people's procuratorate that files the protest to send procurators to appear in court.
8. Where the people's procuratorate that files a protest designates the procurators of the people's procuratorate at the same level as the people's court hearing the protest case to appear in court, the people's court shall permit it.
Where the people's procuratorate does not send procurators to appear in court, it shall not affect the trial of the protest case.
9. The seat of the people's procuratorate appearing in court shall be called “protesting organ.” The seat of the procurators appearing in court shall be located on the right front to the bench, and be at a proper distance from the seats of the parties concerned.
10. After announcing the opening of a court session, the presiding judge shall make a statement on the protest filed by the people's procuratorate and the procurators' appearance in court.
11. Where, in the court trial, the procurators of the people's procuratorate request withdrawal of them from the court after finishing reading the written protest according to the trial procedures, the presiding judge shall allow such a request.
12. Where, in court, a party applies for the withdrawal of any procurator of the people's procuratorate from the court, or questions, assails or delivers any extreme speech to any procurator of the people's procuratorate, the presiding judge shall stop it.
13. The procurators appearing in a retrial court shall have the following tasks: (1) reading the written protest; and (2) adducing evidence investigated and gathered by the people's procuratorate according to its functions, whether in favor of or adverse to the petitioner, and explaining issues raised by the parties concerned.
14. The trial of a protest case shall focus on the grounds of the claims of the petitioner (applicant). If the grounds of the protest of the people's procuratorate are beyond the grounds of the claims of the petitioner (applicant), the case may be tried and a judgment may be made according to law by considering the grounds of both.
15. Where, after the people's court rules to dismiss a retrial petition, the party concerned files a petition with the people's procuratorate and the people's procuratorate files a protest against the ruling on dismissal of a retrial petition, the people's court shall not accept the protest. Where the people's procuratorate files a protest against an original effective judgment, ruling or mediation record, the people's court may render a judgment to maintain the original judgment, ruling or medication record if finding at trial that the cause of protest is substantially the same with the cause of the dismissed retrial petition of the party concerned.
16. Where a party adds or changes any claim in court, mediation may be conducted regarding the added or changed claim. If the mediation fails, the party shall be notified to file a separate lawsuit.
17. The people's court shall organize the parties to cross-examine the evidence investigated and gathered by the people's procuratorate according to its functions, and examine and admit such evidence in accordance with the Several Provisions of the Supreme People's Court on Evidence in Civil Procedures. An authentication conclusion of an authentication agency authorized solely by the people's procuratorate shall not be directly taken as a basis of judgment, unless it is accepted by the opposite party or is investigated and verified again by the people's court upon application of the party concerned and cross-examined in court.
18. If, after being legally summonsed by the people's court, the party filing a petition with the people's procuratorate refuses to appear in court without any good reason or leaves the court room during a court session without the court's permission, the people's court shall make a ruling to close the retrial. However, if the people's procuratorate files the protest on the ground that the effective adjudication damages the national interests, public interests or interests of a third party, the people's court shall continue the retrial according to law.
Where the opposite party refuses to appear in court without any good reason or leaves the court room during a court session without the court's permission, the people's court shall enter a default judgment in accordance with Article 130 of the Civil Procedure Law of the People's Republic of China.
19. Where, after making a retrial ruling, the people's court finds that the natural person filing a petition with the people's procuratorate dies without any heir or the heir of the natural person has waived inheritance or participation in the retrial, it shall make a ruling to close the retrial.
Where a legal person or any other organization filing a petition with the people's procuratorate is revoked or cancelled according to law without any successor to its rights and obligations or the successor to its rights and obligations waives participation in the retrial, the people's court shall make a ruling to close the retrial.
20. Where, after the people's court makes a retrial ruling, the party filing a petition with the people's procuratorate applies to the people's court in writing for withdrawal of petition, the people's court shall make a ruling to close the retrial. However, if the people's procuratorate files the protest on the ground that the effective adjudication damages the national interests, public interests or interests of a third party, the people's court shall continue the retrial according to law.
21. Where, after making a retrial ruling, the people's court finds that a settlement has been reached by the parties concerned themselves and the settlement has been completely performed, the people's court shall make a ruling to close the retrial.
If the settlement has not been performed or completely performed, the people's court may make a civil mediation record according to the contents of the settlement reached by both parties, and serve the civil mediation record on both parties according to law.
22. Where the people's procuratorate applies for withdrawal of protest during the retrial of a protest case, the people's court shall permit it, and make a ruling to close the retrial.
23. Where part of the original judgment still needs to be executed after the people's court makes a ruling to close the retrial, the people's court shall clearly state in the written ruling that the execution of the original judgment shall be resumed.
24. For a protest case where mediation is possible, the retrial court shall actively conduct mediation, and may invite the people's procurators filing the protest to assist in the mediation.
25. For a case where the effective judgment of the people's court is made after deliberation and decision by the Judicial Committee, if the judgment needs to be changed by the same court at a retrial initiated through a protest, the president of the court shall submit the changed judgment to the Judicial Committee of the court for deliberation and decision.
26. The people's court hearing a protest case shall, besides conducting mediation between the parties, strictly comply with the provisions of the Civil Procedure Law of the People's Republic of China on the trial period.
27. Where a party or the agent ad litem thereof applies for reviewing files (including protest files) after the people's court makes a retrial ruling, the people's court shall permit it.
III. The making of written adjudicative documents for protest cases
28. For a protest case, if the retrial is elevated to the people's court accepting the protest, the docket number shall be followed by the words: “Civil Retrial, Elevated, Protest”; for a ruling of the people's court accepting the protest that orders a retrial by the people's court at the next lower level, the docket number shall be followed by the words: “Civil Ruling, Protest”, and the docket number of the retrial court shall be followed by the words: “Civil Retrial” plus level of trial.
29. The beginning of a written adjudication shall state the protesting organ, and as for the cause of action and process of trial, it shall be clearly stated that the retrial is initiated through a protest, and there shall be an introduction to the procurators of the people's procuratorate appearing in court.
30. Whether the protest grounds of the people's procuratorate are correct shall not be included in the reasons part of a written adjudication, which shall only contain analysis of the grounds of retrial petition or defenses stated by the parties in court and focus on whether the primary evidence admitted in the original judgment for fact finding is insufficient, whether there is any wrong application of law in the original judgment or whether any statutory procedure is violated in the original trial.
31. The main body of a written adjudication shall be only about the main body of the original judgment, and such references to the people's procuratorate as “the protest should be overruled” and “the protest grounds of XXX people's procuratorate should not be supported” shall not be used.
32. Where a protest case is closed through mediation, the beginning of the mediation record shall state the protesting organ, and as for the cause of action and process of trial, it shall be clearly stated that the retrial is initiated through a protest.
33. The people's court shall serve the written adjudication upon the people's procuratorate filing the protest within 10 days after the case is closed, and return the procuratorial files to the people's procuratorate filing the protest. If the written adjudication is made by a court at a higher level (court of second instance), it shall also be served on the original court of first instance (including the former retrial court).
34. After a protest case is closed, the written protest of the people's procuratorate, the written original adjudication, the written retrial adjudication and the trial report (one copy for each document) shall be timely submitted to the Higher People's Court of Beijing.
IV. Handling of procuratorial suggestions
35. The people's court shall examine a case on which the people's procuratorate makes a procuratorial suggestion of retrial, by docketing the case in the “supervision” category. If, after examination, the people's court holds that the statutory retrial conditions are met, and decides to conduct a retrial, the case shall not be tried as a protest case, but shall serve the written retrial ruling and the written retrial adjudication upon the people's procuratorate making the procuratorial suggestion.
36. After receiving a procuratorial suggestion of retrial, the people's court shall examine it and give a written reply on the examination result to the people's procuratorate within three months. If the people's court deems it necessary to conduct a retrial, it shall notify the parties concerned.
37. The people's court shall handle other procuratorial suggestions from the people's procuratorate and give a written reply on the handling to the people's procuratorate within one month.
If the people's procuratorate raises any objection to the written reply from the people's court, it may raise the objection through the people's procuratorate at the next higher level to the people's court at the next higher level. If the people's court at the next higher level holds that the opinion of the people's procuratorate is correct, it shall supervise the people's court at a lower level in making a timely correction.
38. Where the people's court finds that any procuratorial supervision activity violates law or procuratorial disciplines, it may make a written suggestion to the people's procuratorate, which shall give a written reply on the handling result to the people's court within one month; if the people's court raises any objection to the reply from the people's procuratorate, it may raise the objection through the people's court at the next higher level to the people's procuratorate at the next higher level.
V. Supplementary provisions
39. These Opinions shall come into force on the date of issuance. For any discrepancy between these Opinions and any law or judicial interpretation, the law or judicial interpretation shall prevail.