MACAU SAR, CHINA Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida, Bernice Kwok and Daniel de Senna Fernandes, Riquito Advogados
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 substantiated, should they be incomplete or missing; or • order the retaking of evidence when deemed necessary to ascertain the truth. The Court of Final Appeal is also bound to the statements of appeal’s subject matter and the scope of its revision is generally limited to legal arguments, such as: • situations of wrongful interpretation or appli- cation 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 established, 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 provi- sions.
who was not directly involved in the proceed- ings. 10.2 Rules Concerning Appeals of Judgments An ordinary appeal can only be filed provided that: • the value of the lawsuit is superior to the value of the jurisdiction of the court ( alçada ) whose judgment is under appeal (at present, MOP100,000 for a Court of First Instance and MOP1 million for the Court of Second Instance); and • the value of the losses incurred by the losing party is superior to half of the value of the jurisdiction of the court whose judgment is under appeal. However, should the Court of Second Instance uphold the judgment of the Court of First Instance, irrespective of the reasons, no fur- ther appeal can be filed with the Court of Final Appeal, unless that judgment is against previous mandatory jurisprudence of the Court of Final Instance. The right to appeal on certain matters, such as in respect of the court’s jurisdiction for the pro- ceedings or on grounds of breach of mandatory precedent, is not subject to the limitations set out above. 10.3 Procedure for Taking an Appeal Within ten days after being notified of the final judgment, 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 notifies the appellant, who will then have 30 days to file the statements of appeal. The appellee enjoys a further 30 days to file the counter-statements of appeal.
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