MACAU SAR, CHINA Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida and Daniel de Senna Fernandes, Riquito Advogados
10.3 Procedure for Taking an Appeal Within ten days after being notified of the final judg- ment, the losing party must apply for a leave to appeal with the issuing court. Provided all requisites are met, the court issues an order to that effect and duly noti- fies the appellant, who will then have 30 days to file the statements of appeal. The appellee enjoys a fur- ther 30 days to file the counter-statements of appeal. 10.4 Issues Considered by the Appeal Court at an Appeal The primary goal of an appeal is to provide for the review of a lower court’s judgment; the appellant is accordingly limited to what was brought before that lower court by both plaintiff and respondent during the original proceedings. When hearing an ordinary appeal, the Court of Second Instance, although in principle bound to the statements of appeal’s subject matter, enjoys broad room for manoeuvre and may examine and decide on matters of fact and matters of law. It can choose to: • alter the judgment of the Court of First Instance; • declare that judgment null and void; • order the judgment’s grounds to be further sub- stantiated, should they be incomplete or missing; or • order the retaking of evidence when deemed nec- essary to ascertain the truth. The Court of Final Appeal is also bound to the state- ments of appeal’s subject matter, and the scope of its revision is generally limited to legal arguments, such as: • situations of wrongful interpretation or application of the law by the Court of Second Instance; • where the judgment is null and void; or • where any lower court’s judgment was decided against a mandatory precedent. The revision of the facts established, and not estab- lished, is not included per se, but only when it is argued that a certain fact was judged as established, or not, in breach of legal provisions.
10.5 Court-Imposed Conditions on Granting an Appeal The right to appeal is only subject to the requirements/ limitations expressly provided for in the Macau SAR Code of Civil Procedure and described in 10.2 Rules Concerning Appeals of Judgments . Appeals are granted, or not, based on the facts estab- lished and not established at the time of their issu - ance. If the appellate court believes such facts require further substantiation, or that there are other facts that must be considered, it shall order further trial to deter- mine those facts. 10.6 Powers of the Appellate Court After an Appeal Hearing Depending on the findings of the appellate court regarding the lower court’s judgment, it may decide: • to overturn it; • to order its reform; or • to order the execution of further procedural steps deemed necessary, including the retaking of evidence, the taking of further evidence, or even to order the repetition of the trial before the same court. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation As a general rule, the court costs and fees are paid by the losing party, or, in the event that neither party won, by the party who has benefited from the proceedings. The successful party is entitled to have their court fees – and costs paid in advance – reimbursed, as well as some compensation for legal fees incurred. Unless the court finds that a party has acted in bad faith, this compensation is determined by the court in an amount up to half of the total court fees. If a party is found to have acted in bad faith, the court may deter- mine the compensation for the legal fees incurred by the other party in full, as well as compensation for other costs and damages suffered as a result of those actions.
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