Retrial application

[production basis]
The style of the retrial application is for the parties to file a retrial application within two years after the judgment, ruling and mediation have been legally effective.
Article 178 of the Civil Procedure Law of the People's Republic of China stipulates: "If a party believes that there is a wrong judgment or ruling that has already taken legal effect, it may apply to the original court or the people's court at the next higher level for retrial, but does not stop. The implementation of judgments and rulings.” Article 180 stipulates: “A party may apply for retrial if it proves that the mediation has violated the principle of voluntariness or the content of the mediation agreement violates the law. If it is true, it should be retrial."
The application for retrial by a party means that the party to the civil action considers that there is an error in the judgment, ruling or mediation agreement that has already taken effect in law, and requests the trial court or the people's court at the next higher level to try again on the case, with a view to withdrawing or changing it. The original judgment, ruling, and mediation agreement.
According to the provisions of the Civil Procedure Law, the parties must meet the following conditions when submitting a retrial application:
1. The subject who has the right to apply for retrial can only be the party to the case. When other citizens, legal persons or organizations other than the parties to the case find that the court's judgment is wrong, they can only be corrected through the petition or appeal system, and cannot apply for retrial according to law. The parties to the case include the plaintiff, the defendant or the protestant, the respondent, the third party with independent claim, and the third party who has no independent claim for the obligation of the entity; the legal representative of the party also has the right to apply on behalf of the party. retrial.
2. The object of the party's application for retrial must be a judgment, ruling or mediation agreement that has already taken legal effect and is permitted to file a retrial application. This is a restriction on the object and scope of the application for retrial. If the judgment, ruling, and mediation agreement have not yet taken effect, they can only be resolved through other means. Although the judgment, ruling, and mediation agreement have entered into force, but the law is not allowed to apply for retrial, the parties may not apply for retrial. According to Article 181 of the Civil Procedure Law: "The parties may not apply for retrial on the judgment of the dissolution of the marriage that has already taken effect." This is because the relationship between husband and wife is based on love and cannot be used by force. The method combines men and women who have already released their marriage. Moreover, in the case of retrial, there may be a series of unsolvable problems such as retrial judgment and actual marriage.
In addition, in accordance with the provisions of Article 207 of the Supreme People's Court's Opinions on the Application of Certain Issues in the Civil Procedure Law, the cases are tried in accordance with the supervision procedures, public notice procedures, corporate legal bankruptcy and debt settlement procedures, and trials in accordance with the trial supervision procedures. In the case of maintaining the original judgment, the parties may not apply for retrial.
3. The application for retrial by the parties shall be filed within two years after the judgment, ruling and mediation agreement take effect. This is a time limit for the parties to apply for retrial. Its purpose is mainly to encourage the parties to exercise their right to apply for retrial in a timely manner, to prevent the parties from endlessly litigating and to maintain the stability of civil legal relations.
4. The party applying for retrial shall submit it to the people's court of the original trial or the people's court at the next higher level. This is a restriction on the parties' application for retrial of the court. Its legislation is intended to prevent the waste of manpower and material resources caused by the application of the parties everywhere, as well as the interference with the normal working order of the court. At the same time, the courts that explicitly apply for retrial can also avoid the mutual derogation between the courts and affect the exercise of the parties' retrial rights.
5. A written application must be submitted to the people's court. The application shall state the applicant's basic information, the name, cause and case number of the original court, the facts and reasons of the parties' dispute, the facts, reasons and applicable laws found in the original judgment, ruling or mediation, and apply for retrial. The specific litigation request and the facts, reasons and legal basis for applying for retrial. At the same time, the parties must submit a copy of the judgment, ruling or mediation document of the people's court of the original trial when submitting the application.
If the parties file an application for retrial, it shall not affect the validity of the effective judgment or ruling, that is, the execution of the judgment or ruling shall not be stopped. This is different from the second-instance program. In the trial of the protest, as long as the party protests within the statutory time limit according to law, the judgment and ruling of the first instance shall not have legal effect.
6. The parties must apply for retrial and must meet the statutory circumstances. This is a restriction on the application for retrial and the focus of the court review. According to the provisions of Article 179 of the Civil Procedure Law, if the parties apply for retrial for judgment or ruling, they must meet one of the following statutory circumstances:
First, there is new evidence sufficient to overturn the original judgment or ruling, that is, the new evidence provided by the party can deny the original judgment and determine the proof of the main evidence on which the case is based, so that the facts of the case are completely changed or major changes have occurred. The conclusions of the original judgment and ruling cannot continue to be established. For example, the original evidence is forged, altered, perjury, etc.
Second, the main evidence of the original judgment and ruling to determine the facts is insufficient. Evidence is the premise and basis for determining the facts of the case, and the main evidence determines the main aspects of the facts of the case. Without the main evidence, the facts of the case cannot be determined, at least the facts are unclear. The main lack of evidence has two meanings: First, the original judgment and ruling have no evidence to prove the main and key problems of the case. Second, the main judgments and rulings are based on the fact that the main evidence is not true or legally changed, such as the forgery being verified, or the criminal or other civil judgments on which the case was based were revoked according to law.
Third, the application of the original judgment and ruling is indeed wrong. This includes both the applicable substantive law error and the applicable programming error, or the application of this law, or the application of this clause. The law is the yardstick for trial cases in the people's courts. Any mistake in the application of the law is a major mistake, which will inevitably affect the correctness of the judgment and the ruling, and should be re-examined. Of course, if only one item is cited and the item or item is not specified, it is not an applicable law error.
Fourth, the people's courts violate the legal procedures and may affect the correct judgment and ruling of the case. The statutory procedure is the operational procedure for the people's court to conduct trials, and it is the necessary form to guarantee the judgment and ruling. Of course, not all violations of the legal procedures will inevitably affect the correctness of judgments and rulings. Therefore, this is not an inevitable condition for the people's courts to conduct retrials. Only when the people's court violates important and key legal procedures, such as avoidance, cross-examination, collegiality, etc., may affect the verification of evidence, the investigation of the facts, and the judgment, should be retrial.

Fifth, the trial personnel had corruption, bribery, malpractice, and defamation in the trial of the case. It is the minimum professional ethics of the judges to be honest and honest. Under normal circumstances, after the judges accept bribes, they will inevitably engage in malpractice and defamation. However, all that is required here is that the judges have carried out the above-mentioned violations, and it is not necessary to prove that the judges have therefore carried out the defamation. As for the judges based on family sympathy, revenge, jealousy and other mean psychology, they have carried out malpractices and defamation laws. Once they have been verified, they should be re-examined. It should be emphasized that the corruption and bribery here has its special meaning, that is, the property of the judge who is directly related to the case and accepts the bribe of the party or the relevant personnel. If the judges embezzle other property or accept bribes from others, it is not the legal condition and reason for filing a retrial. In addition, the judges here include both the collegial panel members who tried the case or the judges who were the sole judges, as well as the members of the Judicial Committee who participated in the discussion and study of the case.
According to the provisions of Article 180 of the Civil Procedure Law, the parties may only initiate a retrial procedure if they apply for retrial for the mediation paper: there is evidence that the mediation violates the voluntary principle; there is evidence to prove the content of the mediation agreement. Violation of the law.
The conditions for the above-mentioned parties to apply for retrial are indispensable, and only if they are available at the same time, the application for retrial can be established.
[document style]
The applicant for the retrial application shall apply for retrial on the date of the People's Court.
The facts and reasons for the request of the matter shall be attached to the People's Court: a copy of the original examination document, the date of the applicant [fill in the instructions]
First, the title is the title, and the name of the instrument is “retrial application”.
Second, the text
1. The basic situation of the parties. The book is based on the fact that the judgments and rulings of the people's courts are wrong and apply for retrial. Therefore, the parties have only one aspect of the applicant.
The applicant is a natural person, indicating his or her name, gender, age, nationality, occupation or work unit and position, residence. If the residence is inconsistent with the place of usual residence, write the place of permanent residence; if the applicant is a legal person, the name and address of the legal person shall be specified, and the legal representative and his name and title shall be written in a separate line; the applicant is an organization that does not have legal personality. Or the individual partner of the font size, indicate its name or font size and residence, and a separate line stating the principal responsible person and his name and position; the applicant is an individual industrial and commercial household, indicating the owner’s name, gender, age, Nationalities, residences; if there is a font size, after the name is indicated in brackets "system...owner".
If there is a legal representative or a designated agent, it shall list the name, gender, occupation or work unit and position, residence, and include the relationship with the applicant after the name.
If there is an agent, the name, gender, occupation or work unit and position, residence shall be listed. If the client is a lawyer, only the name, work unit and position shall be written.
2. Case. The cause of the case is the reason for the retrial application. Declare which judgment or ruling of which people's court is not up to. The name of the applicant, the name of the original final trial people's court, the date of the original judgment, the number of the instrument, and the name of the instrument are listed in turn. The expression is: "The applicant applies for retrial on the date of the people's court."
3. Request matter. It is required to bring the trial supervision program to the people's court and to try the case again.
The request should be written in a concise and concise manner.
4. Facts and reasons. This is a key part of this article and should be written according to legal content.
The application for retrial is for a judgment or ruling that has already taken legal effect, and the content is much more complicated than the complaint and the complaint. It is necessary to write the mistakes of the first-instance judgment and the ruling, and also to write the mistakes of the second-instance judgment and ruling. How to write the reasons in order, avoid duplication and embarrassment, this is a writing skill problem. To write the reason part well, you should first think about the whole content, clarify the central idea to be expressed, and then classify the materials you have mastered. When it is produced, it can be divided into the following major levels:
The first layer, an overview of the case. You can first open the judgment of the first and second instance, and write out the occurrence, cause, process and ending of the civil dispute. This level requires writing truth-seeking, with facts and relevant solid evidence. If you do not summarize the facts of the case first and directly refute the wrong judgment or ruling of the people's court, you will feel a lack of generality. Because, from a logical point of view, summarizing the case, it is the first to give the correct conclusion. The following rebuttal is a proof process of using arguments for analysis and argumentation. But this layer does not have to be written in a very specific and detailed manner, and it is succinct to write down the case.
The second level, the specific analysis and argumentation of the court's wrong judgment, ruling. Or the main evidence of the facts is insufficient; or the law is incorrectly applied; or the proceedings are violated; or the judges have corruption, bribery, and smuggling. The mistakes made by the people's courts may be one aspect or multiple aspects. In any case, when refuting the facts, it is necessary to pay attention to the use of evidence; when refuting the applicable law or violating the program error, it is necessary to pay attention to the original text of the law and seek the original intent of the legislation. If there is new evidence and the new evidence is sufficient to overturn the original judgment and ruling, the truth, the cause, the passage, and the actual situation of the outcome should be truthfully written, and the evidence should be listed as true and sufficient evidence to explain the source of the evidence.
This level of requirements is written in a specific and detailed manner, and the discussion must be well-founded and reasonable. Don't talk empty-handedly and talk about it in general.
The third layer, summarizing the full text, clarifies that the retrial is in compliance with the law. This level is based on legal provisions. It measures the judgments of the people's courts, determines where the mistakes are, and why is wrong. The parties apply for retrial, why are they correct, and so on.
Third, the tail
1. The main sending agency wrote in two lines: "This is the case," "The People's Court."
2. Bottom right: Signed or stamped by the applicant and indicating the date on which the instrument was made.
3. Supplementary item:
Material certificate
Documentary certificate;
If there is a witness, the name and address of the witness must be listed.