CHINA Law and Practice Contributed by: Qingyou Wang, Yichen Lu, Chao Tang and Yuhe Gu, Anli Partners
10.2 Rules Concerning Appeals of Judgments In the Chinese legal system, there are four levels of court, and from the bottom level to the highest level are the court of district, the court of intermediate, the court of high level and the supreme court. Which court serves as the court of appeal depends on the court of first instance. Generally, the level of court where a case starts is determined by the monetary value of the subject matter. The Civil Procedure Law of China provided several institutions where an appeal can be granted by the appealing court, namely: • the facts in the judgment of first instance are unclear; • the law application is not correct; • the court of first instance did not notify the neces- sary party to attend the litigation; and • the procedure of the first instance violates the law. 10.3 Procedure for Taking an Appeal If a Party disagreed with the judgment of the first instance, they have the right to appeal their case to the court of the next level within 15 days after receiv- ing the judgment of the first instance. The appealing party shall submit the petition for appeal to the court of first instance. Upon receiv- ing the appealing party’s petition, the court of first instance will issue a payment notice requiring the appealing party to pay the appeal fee. After the court of first instance receives the appeal fee, it will hand the case files, including the petition for appeal, to the court of second instance. The appeal is the party’s legitimate right under Civil Procedure Law of China. The appealing party is not required to obtain any court’s approval when exercis- ing this right. 10.4 Issues Considered by the Appeal Court at an Appeal The appeal court’s consideration is divided into two parts. Procedural Review The appeal court will consider whether:
• the materials submitted by one party have been duly delivered to the other party; • the court of first instance failed to notify any “nec- essary party” to join in the proceeding; the “neces- sary party” under the Civil Procedure Law of China include those parties who have their own claims and those who do not have their own claims but are indispensable for fact-finding; • the court of first instance has organised the parties to cross-examine the opposing party’s evidence; and • the court of first instance has arranged at least one hearing, in which all the parties have fully present- ed their case and expressed their opinion. Substantial Review The appeal court will consider whether: • the facts-finding parts of the judgment of the first instance have solid evidence to be supported; • the court of first instance has fully investigated all the relevant facts that enable it to make a judg- ment; and • there is any law application mistake by the court of the first instance. Summary In most situations, the appeal court will arrange a re- hearing, and in practice, the appeal court will conduct a thorough review of the first-instance decision. In the appeal procedure, both the appealing party and the appealed party are allowed to raise new evidence. Thus, new points and facts are very common in the appeal. If the new points or facts are relevant to the case, the appeal court may take them into account and grant the appeal. 10.5 Court-Imposed Conditions on Granting an Appeal Speaking of granting an appeal, the Chinese appeal courts adopt an approach of “return or overrule”, which means: • if the Chinese appeal courts find any fact-finding issues in the judgment of first instance such as failing to investigate all the relevant facts or facts lacking evidence to support, the appeal court may
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