CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
appellate court. The court will primarily review whether the appeal was filed within the legal time limit. 10.3 Procedure for Taking an Appeal The time limit for appealing a civil judgment is 15 days from the date of service of the judgment. The time limit for appealing a ruling is 10 days from the date of service of the ruling. If a party is not domiciled in China, the time limit for appeal- ing both judgments and rulings is 30 days. 10.4 Issues Considered by the Appeal Court at an Appeal The appellate court’s review focuses on identify- ing any errors in the fact-finding or application of law in the first instance judgment. The appeal may be conducted in writing, but there is typical- ly a hearing to review the case and hear the par- ties’ arguments. New evidence is allowed, but the party submitting new evidence must explain why it was not submitted in the first instance. The appeal may comprehensively review the case, extending beyond the original fact-finding and legal assessments of the first instance court. 10.5 Court-Imposed Conditions on Granting an Appeal The appeal is of right and no permission is required for the appellant to bring an appeal. 10.6 Powers of the Appellate Court After an Appeal Hearing The appellate court may: • affirm the first instance judgment; • revoke, amend or modify the first instance judgment if the appellate court finds errors in the fact-finding or application of law in the first instance judgment; • rescind the original judgment and send the case back to the original court for retrial or
revise the judgment after ascertaining the facts if the basic facts were incorrectly deter- mined; and • rescind the original judgment and send the case back to the original court for retrial if the appellate court finds that the original judg- ment seriously violates legal procedures, for example, omitting a party in necessary co- litigation. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation Generally, the losing party pays the court fees in China. The court may allocate the court fees between the parties in proportion to each party’s liability if each party wins partially. Usually, the parties pay their own attorney fees and expenses, like expert fees. There are several exceptions where the attorney fees and expens- es can be reimbursed by the losing party, for example, including: • personal injury cases; • defamation cases; • security rights cases; • infringement of intellectual property; • environmental tort cases; or • unfair competition. The court may award attorney fees to the suc- cessful party in these cases based on specific laws and regulations. However, the amount of fees and expenses awarded by the court fol- lows the government’s recommended fee scale, which means that the winning party’s attorney fees and expenses may not be fully reimbursed.
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