Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Trial Supervision Procedure under the Civil Procedure Law of the People's Republic of China

Fa Shi [2008] No. 14

November 25, 2008

Announcement of the Supreme People's Court of the People's Republic of China

The Interpretation of the Supreme People's Court on Issues Concerning the Application of the Trial Supervision Procedure under the Civil Procedure Law of the People's Republic of China adopted at the 1453rd Meeting of the Judicial Committee of the Supreme People's Court on November 10, 2008, is hereby promulgated and shall come into effect as of December 1, 2008.

Appendix: Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Trial Supervision Procedure under the Civil Procedure Law of the People's Republic of China

For the purposes of safeguarding the retrial application rights of the parties, regulating the trial supervision procedure and protecting the legitimate rights and interests of all parties, the interpretation on certain issues concerning the application of the trial supervision procedure is made as follows in accordance with the Civil Procedure Law of the People's Republic of China as amended on October 28, 2007 and the trial practice:

Article 1 Where, within the time limit as provide in Article 184 of the Civil Procedure Law, a party applies to a people's court at the next higher level than the people's court of original trial for the retrial causes as provided in Article 179 of the Civil Procedure Law, the said people's court at the next higher level shall accept the application in accordance with relevant law.

Article 2 The provisions on suspension, discontinuity or extension shall not apply to the time limit as provided by Article 184 of the Civil Procedure Law.

Article 3 Where a party applies for retrial, such party shall submit the retrial application to the people's court, with one copy of the application for each member of the other party.
The people's court shall examine whether the retrial application includes the following matters:
1. General information such as name, address and effective contact information of the retrial applicant and the other party; name and address of the legal persons or other organizations concerned as well as general information of the legal representative or principal person in charge thereof, such as name, position and valid contact information;
2. Name of the people's court of original trial as well as the case number of the original decision, ruling or mediation document;
3. The legal circumstances as well as detailed facts and ground on which the retrial is based; and
4. Detailed retrial claims.

Article 4 The Party Shall, when applying for the retrial, submit to the people's court the legally effective decision, ruling or mediation document, identification papers as well as relevant evidence.

Article 5 Where a party not involved in the case claims rights on subject matters of execution as confirmed by the original decision, ruling or mediation document and the dispute cannot be solved by a new lawsuit, the party not involved in the case may apply for retrial to a people's court at the next level to the people's court making the original decision, ruling or mediation document within two years as of the date when the said decision, ruling or mediation document comes into effect or within two years as of the date when the said party knows or it should know that its rights and interests are damaged.
Where during the course of execution, a party who is not involved in the case raises a written objection to the subject matter of enforcement according to Article 204 of the Civil Procedure Law shall apply.

Article 6 Where the retrial application or other materials submitted by the retrial applicant are not in conformity with Article 3 and Article 4 of the present Interpretation, or that they contain any content of personal attack and hence may intensify the contradictions, the people's court shall require the retrial applicant to supplement or rectify the application as the case may be.

Article 7 The people's court shall, within five days after receiving the retrial application that meets relevant requirements, complete all acceptance and registration procedures including issuing the notice of acceptance to the retrial applicant, with the notice of acceptance and a copy of retrial application to the other party.

Article 8 The people's court shall, after accepting the retrial application, form a collegial bench to examine such application.

Article 9 The people's court shall examine the retrial application by focusing on whether the cause of retrial is justified.

Article 10 Any of the following evidences submitted by the retrial applicant may be confirmed by the people's court as "new evidence" as provided in Item 1 of Paragraph 1 of Article 179 of the Civil Procedure Law.
1. Evidence which exists before the end of the original trial and is discovered after the end of the original trial;
2. Evidence discovered before the end of the original trial, which fails to be obtained or presented within the statutory time limit due to objective reasons; and
3. Evidence on which, after the end of the original trial, the expert or investigator that reaches or makes the original expert conclusion or investigation records reverses said conclusion or records.
The main evidence presented by a party in the original trial which has not been cross-examined and attested during the original trial but is sufficient to reverse the original decision or ruling, shall be deemed as new evidence.

Article 11 Facts that may substantially affect the results of the original decision or ruling, or facts on which such substantial components of a case as the qualification of a party as a subject, the nature of the case as well as the exact rights and obligations and civil liabilities are determined shall be confirmed by the people's court as "basic facts" as provided by Item 2 of Paragraph 1 of Article 179 of the Civil Procedure Law.

Article 12 "Evidences necessary for the trial of the case" provided in the Item 5, Paragraph 1, Article 179 of the Civil Procedure Law shall refer to the evidences which are ruled by the people's court as necessary for determining the basic facts of a case.

Article 13 Where the application of laws, regulations or judicial interpretations in the original trial involves any of the following circumstances, the people's court shall rule that the application constitutes "definite error in the application of law" as provided in Item 6, Article 1, Article 179 of the Civil Procedure Law.
1. Where the law applied is not in conformity with the nature of the case;
2. Where the civil liabilities as confirmed in the original ruling or judgment are in contradiction with the agreements between the parties or provisions of relevant laws and regulations;
3. Where the law so applied has been repealed or has not come into effect at the time of application in the original trial;
4. Where the application contradicts the provisions on the retroactive effect of the law applied;
5. Where the application is in breach of the rules of law application; or
6. Where the application definitely contradicts the original intentions of the law.

Article 14 Breach of exclusive jurisdiction, specific jurisdiction or other grave illegal exercises of jurisdiction shall be ruled by the people's court as "error in jurisdiction" as provided in Item 7 of Paragraph 1 of Article 179 of the Civil Procedure Law.

Article 15 Where during the original trial the judges denies a party of the right of argument, or renders it impossible for the party to exercise of the right of argument through such means as withholding the copies of the statement of complaint or the application for appeal, the people's court shall rule that the "deprivation of the party's right of argument" as provided in Item 10 of Paragraph 1 of Article 179 of the Civil Procedure Law shall apply, with the exception where the case is tried in default and the judgments or ruling of the case are made in accordance with law.

Article 16 Where the original judgment or ruling on the basic facts or the nature of the case are reached on the basis of other legal documents, which documents are later repealed or altered, the people's court may rule that Item 13 of Paragraph 1 of Article 179 of the Civil Procedure Law shall apply.

Article 17 "Breach of the legal procedures by a people's court that may compromise the correctness of the judgment or ruling" as provided in Paragraph 2 of Article 179 of the Civil Procedure Law refers to the circumstances that breach the legal procedures and hence may compromise the judgment or ruling of a case, excluding those provided by Item 4 of Paragraph 1 of Article 179 and Items 7 through 12 of Paragraph 1 of the same Article of the People's Republic of China.

Article 18 "The judicial officers have committed embezzlement, accepted bribes, done malpractices for personal benefits and perverted the law in the trial of the case" as provided in Paragraph 2 of Article 179 of the Civil Procedure Law refers to the circumstances where such offenses by the judicial officers have been confirmed by relevant criminal legal instruments or disciplinary sanctions.

Article 19 Where after examining and verifying the materials such as the retrial application the People's Court considers that the ground for the application for retrial is valid, it shall decide without hearing that the retrial shall be conducted.
Where the application for retrial is made after the expiration of the time limit as provided in Article 184 of the Civil Procedure Law, or where the ground claimed for the application for retrial is not within those listed in Article 179 of the Civil Procedure Law of the People's Republic China, the people's court shall reject the application for retrial.

Article 20 Where the People's Court considers that a ruling is hard to be made on the basis of the materials such as the retrial application; the files of the original case shall be accessed for examination and verification.

Article 21 The People's Court may decide whether to examine the parties or not in light of the development of the case.
Where the application for retrial is made on the basis of new evidences that may reverse the original ruling or judgment of the case, the People's Court shall examine the parties.

Article 22 Where during the verification and examination of the application for retrial the other party also applies for retrial, the people's court shall accept the other party as applicant for retrial and shall include the retrial application into the aforementioned verification and examination.

Article 23 Where the applicant for retrial requests to withdraw its retrial application during the examination and verification thereof, the people's court shall decide on its sole discretion whether to accept the application for withdrawal.
Where after being served the summons, the retrial applicant refuses to be questioned by the court without any justification, the people's court may rule that the applicant has withdrawn its application for retrial.

Article 24 Where after examination and verification, the people's Court considers that the ground for the retrial application is not valid, the people's court shall reject the application for retrial.
The ruling of rejecting the application fore retrial shall take effect when it is duly delivered.

Article 25 Under any of the following circumstances, the people's court may rule that the examination and verification of the application for retrial shall be terminated:
1. Where the retrial applicant dies or terminates without any successor to its rights and obligations, or that such successor renounces the application for retrial;
2. Where in an action of performance, the applicant who is obliged to perform dies or terminates and there is no property for execution nor any person that succeed its obligations;
3. Where the parties have reached a settlement agreement which has been duly performed; with the exception where the parties state in the settlement agreement that it does not renounce the right to apply for retrial; or
4. Where the disputes among the parties may be settled in a separate case.

Article 26 Where during the course of examination and verification of the retrial application, the case is protested by a competent people's procuratorate, the people's court shall rule on the retrial in accordance with Article 88 of the Civil Procedure Law. The specific claims that that the applicant puts forward in the application shall be included in the cognizance of the court.

Article 27 where the people's court at the next higher level than the court of original trial considers that ground for the application for the retrial is valid through examination and verification, the case shall referred to the said people's court at the next higher level. The Supreme People's Court and the Higher People's Court may designate another people's court at the same level as that of court of original trial; they may also instruct the court of original trial to conduct the retrial.

Article 28 The people's court at the next higher level than the court of original trial may decide on whether the retrial shall be allowed on the basis of such circumstances such as the effect of the case and the participants of the case. Where the retrial is allowed, such factors such as convenience for the parties to exercise their procedural rights and that for the people's court to hear the case shall be taken into consideration.
The people's court designated to conduct the retrial shall hear the case in accordance with the procedures provided in Paragraph 1 of Article 186 of the Civil Procedure Law.

Article 29 Under any of the following circumstances, the people's court of the original trial shall not be designated as the court to conduct the retrial:
1. Where the people's court of the original trial has no jurisdiction over the case;
2. Where the judicial officers of the court of the original trial have committed embezzlement, accepted bribes or done malpractices for personal gains or perverted the law in the original trial of the case;
3. Where the original judgment or ruling is reached through the discussion of the judicial committee of the people's court of original trial;
4. Other circumstance under which it is not appropriate to designate the court of the original trial to conduct the retrial;

Article 30 where the people's court considers that the original judgment, ruling or mediation agreement of a case, to which no application for retrial or protestation is made, involves such definite errors as the judgment, ruling or mediation agreement is detrimental to the national interest or public interest, the people's court shall order a retrial of the case in accordance with Article 177 of the Civil Procedure Law.

Article 31 In accordance with Article 186 of the Civil Procedure Law, the people's court shall retry the case in accordance with the procedures of either first instance or second instance.
A hearing shall be held for the retrial by the people's court. With the exception where the case is retried in accordance with the procedure of second instance and both parties have fully presented their opinions through other means and have agreed in writing that no hearing needs to be held.

Article 32 The hearing held to retry the case by the people's court shall proceed in light of the actual circumstances of the case:
1. Where the retrial is applied for by a party to the case, the applying party shall first be required to state their application for retrial and the ground thereof before the other party against whom the retrial is applied for presents its defense and other parties in the original trial shall be required to present their opinions;
2. Where the retrial is ordered due to protestation by the people's procuratorate, the protesting organ shall first announce the written protest before the party applying for the protestation make its statements; then the party against which the retrial is applied for shall present its defense before other parties in the original trial shall present their opinions; and
3. Where the retrial is ordered by the people's court ex officio, the parties shall present their opinions in accordance with their respective status in the litigation in the original trial.

Article 33 The people's court shall conduct the retrial within the scope of the requests in the application for retrial or within the scope of the applying party's requests that are supported by the protestation of the procuratorate. Where the party adds or alters claims in excess of the scope of the original trial, such claims shall not be included in the scope of the retrial. With the exception where such added or altered claims involve national or public interest, or where such added or altered claims are presented in the original trial without being accepted and furthermore such added or alter claims cannot constitute a separate case.
Where a party proposes new claims after the retrial the original judgment, ruling or mediation agreement as the case may be, is reversed and the case is remanded for new trial and, Article 126 of the Civil Procedure Law shall apply.

Article 34 Where the applicant for retrial requests to withdraw its application in the course of retrial, the people's court shall decide on its sole discretion whether to allow the withdrawal. Where the withdrawal is allowed, the retrial procedure shall be terminated; Where after being served the summons the applicant for retrial refuses to appear in court without any justified reasons, or withdraw from a court cession without the approval of the court, it may be ruled that the applicant has automatically withdrawn its application for retrial.
Where in a retrial is allowed due to protest by the people's procuratorate, the party applying for the protest is under any of the circumstances provided by the foregoing Paragraph, without compromising the national interest, public interest or the interest of a third party, the people's court shall rule that the retrial procedure be terminated; where the people's procuratorate withdraws its protest, the people's court shall allow such withdrawal.
Where the retrial procedure is terminated, the enforcement of the original judgment shall be resumed.

Article 35 Where the retrial applies the procedure of first instance and the plaintiff in the first instance applies to withdraw its complaint, the people's court shall decide on its sole discretion whether such withdrawal shall be allowed. Where the withdrawal is allowed, the original judgment, ruling or mediation shall also be ruled to be repealed.

Article 36 Where the parties reach agreement through mediation during the retrial, the people's court shall prepare and issue a mediation statement. The mediation shall take effect when it is duly signed for by all the parties and the original judgment or ruling shall be deemed as repealed.

Article 37 Where the people's court, through the retrial, considers that the ascertainment of facts is clear and the application of law is correct in the original judgment or ruling, the original judgment and ruling shall be affirmed; where the conclusion of the original judgment or ruling is correct despite defects in the ascertainment of facts, application of law or statement of reasoning of the original judgment or ruling, the people's court shall, in the judgment or ruling of the retrial, affirm the conclusion of the original judgment or ruling and correct the aforementioned defects.

Article 38 Where the people's court retries the case in accordance with the procedure of the second instance and considers that the ascertainment of facts in the original judgment or ruling is invalid or unclear, the court shall amend the original judgment or ruling after clearly ascertaining the facts. Nonetheless, where the facts would be more readily ascertained and the disputes among the parties more easily solved if the case were to be remanded to the court of original trial, the people's court shall reverse the original judgment or ruling and remand the case to the court of original trial; where during the original trial, due to defects in procedures, a party that should have participated in the litigation is omitted and parties fail to reach a mediation agreement, or where other violations of the legal procedure cannot be directly addressed by substantive means, it shall be ruled that the original judgment or ruling shall be reversed and the case remanded for retrial.

Article 39 Where new evidences prove that there are definite errors in the original judgment or, the people's court shall amend the original judgment or ruling.
Where due to the new evidences presented by the applicant for retrial or protest, the judgment or ruling of the retrial amends the original judgment or ruling and that the opposite party against whom the application for retrial or protest is made and other parties concerned fail to timely produce their evidence in the original trial due to the fault of the applicant and therefore such opposite party and other parties concerned claim to such applicant for compensation for the additional litigation costs including travel expenses and charge for lost working time, the people's court shall support such claim; claims for the direct losses aggravated by such retrial may be settled by a separate lawsuit.

Article 40 Where the case which has been adjudicated by the People's Court through mediation is adjudicated for retrial, and it is found that the matter put forward by the People applying for the retrial that the mediation does not violate the principle of voluntariness and the content of the mediation statement is not in violation of the law, the People's Court shall adjudicate to dismiss the retrial application and resume the enforcement of the original mediation statement.

Article 41 The parties to the retrial of a civil case shall be those to the original trial. Where a party to the original trial dies or terminates, the person succeeding the rights and obligations of such party may apply for and participate in the retrial.

Article 42 Where a party not involved in the original trial applies for the retrial and the people's court finds through examination and verification that the party shall be a necessary co-party to the case, the party shall be added as a party to the retrial where such retrial is conducted in accordance with the procedure of first instance, and a new judgment shall be made; where the retrial is conducted in accordance with the procedure of second instance and the parties fail to reach an mediation agreement, the original judgment or ruling shall be reversed and the case shall be remanded for retrial, to which the said party not involved in the original trial shall be added as a party.
Where the party not involved in the original trial is not a necessary co-party, only the legitimacy of its objection to the original judgment or ruling shall be considered by the people's court, which shall decide on the merit of the case to reverse the items corresponding to the objections or to reject the application for retrial by the said party not involved in the original trial; in the first case, the people's court shall inform the said party not involved in the original trial and all parties to the original trial that they may lodge a new lawsuit to settle relevant disputes.

Article 43 Where there should be any inconsistency between any judicial interpretation issued by this Court and this Interpretation, the latter shall prevail. Any matter not covered by the present Interpretation shall be subject to original provisions.