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Civil Appeals and other Means of Recourse Against Judgments in China: a Critical Review of the Procedural Issues

Peter C.H. Chan, Solicitor, Hong Kong; Solicitor, England & Wales, Teaching Fellow, School of Law, City University of Hong Kong, Hong Kong, China

1.   Introduction.

The Constitution of the People’s Republic of China (henceforth, PRC Constitution) does not entrench the right to seek remedy through civil appeals or other means of recourse against judgments. Only broad concepts relating to civil justice are stipulated in the constitution. For instance, under Articles 126 and 127 of the PRC Constitution, the court should exercise judicial power independently and the higher courts should supervise the work of lower courts. Appellate procedures are governed by the Civil Procedure Law of the People’s Republic of China (henceforth, Code)[1], the Organic Law of the People’s Courts of the People’s Republic of China (henceforth, Organic Law)[2] and a number of judicial interpretations of the Supreme People’s Court (henceforth, SPC)[3], for instance, the Opinions of the Supreme People’s Court on Some Issues Concerning the Application of the Civil Procedure Law of the People’s Republic of China (henceforth, 1992 Opinion)[4]. Under the Chinese appellate system, a second instance decision is said to be “final” (liangshen zhongshen zhi)[5]. However, the Chinese concept of finality is not true finality, as a “final” decision can be re-opened under the “adjudication supervision procedure” (shenpan jiandu chengxu)[6]. The procedure provides recourse against non-appealable civil judgments tainted by “definite error” (queyou cuowu)[7]. The adjudication supervision procedure is regulated by the Code, the Organic Law and a number of judicial interpretations of the SPC, including the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Adjudication Supervision Procedure under the Civil Procedure Law of the People’s Republic of China (henceforth, 2008 Interpretation)[8], Several Opinions of the Supreme People’s Court on Accepting and Examining Applications for Retrial of Civil Cases (henceforth, 2009 Opinion)[9], and Some Opinions of the Supreme People’s Court on Regulating the Docketing of Cases for Retrial by the People’s Courts (for Trial Implementation)[10].

Art. 128 of the PRC Constitution reads, “The Supreme People’s Court is responsible to the National People’s Congress and its Standing Committee. Local people’s courts at different levels are responsible to the organs of state power which created them”. The President of the SPC is selected by the National People’s Congress[11]. Presidents of all other courts at various levels are selected by the people’s congresses at corresponding levels[12]. The direct subordination of the judiciary to the legislature means that there can be no real judicial independence in China unless the constitutional structure is modified. But Chinese constitutional theory specifically rejects the concept of separation of power[13]. While the legislature has de jure control over the judiciary, real control over the courts is exercised by the administrative organs. The local government still (in principle) controls the court budget[14]. This fiscal link between the local administration and the courts entrenches local protectionism in civil adjudication[15].

2. Civil appeals in China: the appellate procedures

An appeal against a first instance judgment lies as of right to the second instance court[16]. An appeal must be lodged within 15 days from the date when the written judgment is served[17]. A party may also appeal against a first instance ruling so long as the appeal is lodged within 10 days from the date when the written ruling is served[18]. A “judgment” is a determination on substantive issues of the lawsuit while a “ruling” is a decision on procedural issues[19]. The time limits for appeal are strict and no extension of time is allowed[20]. Leave is not required to appeal against a judgment or ruling in Mainland China. This is contrasted with the position in Hong Kong where an appeal against an interlocutory judgment or order of the Court of First Instance must obtain leave[21].

An appellant must submit a written “notice of appeal” (shangsu zhuang)[22]. A verbal application for appeal is inadequate[23]. Among other things[24], the notice of appeal must include a “request for appeal” (shangsu qingqiu)[25] and the “grounds of appeal” (shangsu liyou). Regarding the “request for appeal”, the appellant must indicate whether he is seeking to set aside (chexiao)[26] or reverse (gaipan) the first instance decision. Essentially, the request for appeal sets out the scope of the appeal as envisaged by the appellant. With regards the “grounds of appeal”, the appellant must indicate whether he is challenging the factual or legal findings of the first instance decision, or both. The appellant may raise new legal or factual issues (and submit new evidence) at the time of submitting the notice of appeal[27]. The appellant may submit the notice of appeal either to the first instance court or to the appellate court (although the usual practice is to file the appeal with the first instance court)[28]. The first instance court has five days to deliver the notice of appeal to the respondent upon receiving the same. Upon receiving the notice of appeal, the respondent has 15 days within which to submit a written response (dabian zhuang). Failure to submit a written response would not prevent the appeal from going forward[29]. The appellate court must review all the relevant facts and applicable law pertaining to the request for appeal[30]. The appellate court must form a collegiate bench to adjudicate the case[31]. After verifying the facts of the case[32], the collegiate bench shall decide whether it is necessary to hold a court hearing[33]. If it is unnecessary, the collegiate bench will render a decision without a hearing[34]. Under Article 37 of the Some Provisions of the Supreme People’s Court on Reforming the Civil and Economic Adjudication Method (henceforth, 1998 Provisions)[35], a court hearing is required if the collegiate bench believes that there is a need to re-examine the evidence on which the first instance fact-finding was based, or if new evidence has been presented on appeal. The collegiate bench may render a judgment or ruling without a hearing under four circumstances: (a) where the first instance ruling concerns a refusal to accept an action, an objection to jurisdiction, or a dismissal of an action, (b) where the request for appeal is clearly unsustainable, (c) where there is a legal error in the first instance judgment (but no factual error); or (d) where the first instance judgment is tainted by procedural violation (and should be remitted to the original court for a new trial)[36].

There are five possible outcomes in a civil appeal[37].

(1) dismissing the appeal (i.e. affirming the first instance judgment or ruling) on the basis that the first instance judgment or ruling applied the correct law and was based on “a clear finding of facts” (rending shishi qingchu)[38] (henceforth, Outcome (1))[39];

(2) overruling (i.e. reversing, modifying or setting aside)[40] the first instance judgment or ruling on the basis that the decision is tainted by factual or legal error (henceforth, Outcome (2))[41];

(3) (i) where the first instance judgment is based on “an unclear finding of basic facts” (rending jiben shishi buqing)[42], the appellate court may set aside the judgment and remit the case to the first instance court for a new trial (henceforth, Outcome (3)(i))[43]; or (ii) where the first instance judgment is based on “an unclear finding of (non-basic) facts”[44], the appellate court should reverse the judgment after ascertaining the facts on its own (henceforth, Outcome (3)(ii))(together, Outcome (3))[45];

(4) setting aside the first instance judgment and remitting the case to the first instance court for a new trial on the basis of serious procedural violation (such as unlawfully entering a default judgment or omission of a party in the first instance judgment)(henceforth, Outcome (4))[46]; or

(5) setting aside the first instance judgment and dismissing the action if the appellate court finds that the court should not have accepted the case in the first place (henceforth, Outcome (5))[47].

An appeal against a ruling would only result in Outcomes (1) and (2), while an appeal against a judgment may result in Outcomes (1) to (5)[48].

In relation to Outcome (3)(ii), where there is “an unclear finding of (non-basic) facts”, the court should ascertain the facts on its own and reverse the first instance judgment (without the need to remit the case to the original court). It is only where the first instance judgment is based on an unclear finding of “basic facts” (Outcome (3)(i)) that the appellate court should remit the case to the original court for a new trial. This arrangement is designed with procedural efficiency in mind[49].

Confusion may arise as the Code fails to define “factual error” (see Outcome (2)) and “an unclear finding of facts” (see Outcome (3)) and explain the differences between the two concepts. “Factual error” and “an unclear finding of facts” are two different types of irregularities in fact-finding. A “factual error” arises when facts established are based on false or fabricated evidence, rendering the facts inaccurate. “An unclear finding of facts” refers primarily to the situation where the facts established are based on insufficient evidence (and the judgment is rendered prematurely without thorough investigation)[50].

A new trial by remittal (see Outcomes (3)(i) and (4)) follows the procedural rules of first instance proceedings and a decision rendered in the new trial is a first instance decision[51], which may be appealed under the same appellate procedures.[52] In the past, endless rounds of remittals made civil appeal in China unpredictable and caused undue delay. The phenomenon was consistent with the socialist characteristic of civil procedure[53]. This problem was rectified in the 2012 Amendment Version of the Code by limiting a case to one remittal only in the context of civil appeal[54].

The appellate court renders a ruling to determine an appeal against a first instance ruling[55]. It is unnecessary for the appellate court to hear the case as a ruling concerns only procedural matters[56].

Under the Chinese appellate system, before a decision is rendered, an appellant may only withdraw his appeal with the approval of the court[57]. The rationale behind this rule is that the court must be able to step in to protect the interests of third parties (as well as state interest and public interest) and uphold substantive justice (e.g. where there is a serious error in the first instance decision) by disallowing a withdrawal if these other interests are at stake[58].

Chapter 14 of the Code deals exclusively with the appellate procedures but it only covers parts of an appeal. It must be read in conjunction with Chapter 12 of the Code (Ordinary Procedure at First Instance), which deals with, for instance, the conduct of court hearings[59].

The time limit for rendering an appellate judgment is three months from the docketing of the case. This is contrasted with the much shorter time limit of 30 days for the rendering of an appellate ruling[60]. The reason for the difference is that a judgment concerns the disposition of substantive rights while a ruling is purely procedural in nature.

It is not necessary to stay the enforcement of the first instance decision on appeal, as an appeal lodged within the prescribed time limit means that the first instance decision would not become a legally effective decision. Only legally effective decisions can be enforced[61].

A second instance decision is said to be “final”[62]. However, as will be discussed, the Chinese concept of “finality” is nebulous and shaky. A second instance decision may be re-opened under the adjudication supervision procedure.

3. The nature of Chinese appellate review – real appeal or de novo hearing?

Fu observed that the Chinese appellate review system has five defining characteristics[63]: (1) the court reviews both legal and factual findings of the first instance court; (2) the court may review matters outside the scope of the appellant’s request for appeal[64]; (3) the court may entertain new evidence and new points of law; (4) appellate review is conducted by way of a court hearing[65]; and (5) the court may overrule the first instance decision or remit the case to the first instance court for a new trial[66].

The Chinese appellate court has the power to review any finding of the first instance court (both legal and factual)[67]. Art. 168 of the Code reads, “A people’s court of second instance shall review the relevant facts and the applicable law pertaining to the request for appeal”. The Chinese appellate court has unrestricted powers to examine the factual findings of the first instance court that is within the scope of the request for appeal[68]. In theory, such examination involves a qualitative assessment of the accuracy and adequacy of the lower court’s factual findings. If the request for appeal encompasses every factual finding of the first instance decision, then it is the appellate court’s duty to review every factual aspect of the case[69]. In practice, the review goes beyond simply reviewing the overall merits of first instance fact-finding and rectifying obvious errors. It is often a repetition of the fact-finding exercise as if the appellate court were a trial court[70]. This is contrasted with the common law position where the appellate court gives much more deference to the factual findings of the lower court and will only disturb a primary finding of fact if there is a plain error[71]. This deference in common law appellate review is partly due to the fact that the appellate court “does not enjoy the advantages enjoyed by the trial judge who received the evidence at first hand”[72]. The Chinese appellate court is not subject to this kind of restriction. Even at the stage of verifying the case to determine whether a court hearing is necessary, the Chinese appellate court may conduct its own investigations and question parties to obtain first hand evidence on the case[73]. The power of the Chinese appellate court to repeat the fact-finding exercise is consistent with the notion that substantive justice has preeminence in Chinese civil adjudication.

With regards to the scope of an appellate review, Art. 168 of the Code seems to suggest that the appellate court is limited to review only legal and factual matters set out in the appellant’s “request for appeal”. But Art. 168 of the Code must be read in conjunction with Art. 180 of the 1992 Opinion, which states that if the court finds an error in the first instance judgment that falls outside the scope of the “request for appeal”, the court shall correct the error.

The power of the court to move beyond the scope of the request for appeal is said to be restricted under Art. 35 of the 1998 Provisions, which provide that the appellate court may only go beyond the scope of the request for appeal if the first instance judgment violates prohibitive regulations (of the law), harms public interest or violates the interests (and rights) of another party[74]. However, what constitute a violation of the interests (and rights) of another party is not defined in the 1998 Provisions or any other normative instrument. Presumably, “another party” encompasses the respondent in the appeal and third parties, and a broad meaning would be given to “interests” (and rights).

From the perspective of statutory interpretation, Art. 35 of the 1998 Provisions should have precedence over Art. 180 of the 1992 Opinion[75]. However, in practice, the appellate court may not see itself bound by Art. 35 of the 1998 Provisions when there is an obvious error in the first instance judgment that has not been highlighted in the request for appeal. In any event, as long as overall substantive justice is served, courts are likely to interpret Art. 35 of the 1998 Provisions flexibly so as to allow itself to venture beyond the scope of the request for appeal. Hence, by appealing, an appellant may end up in a worse position than before if the appellate court decides to review beyond the request for appeal to rectify an injustice in the first instance judgment[76]. Such a result is clearly undesirable from the perspective of procedural justice and constitutes a blatant violation of the principle of party disposition[77]. From a policy perspective, it is argued that the court needs to balance the right of the appellant to limit the scope of the appeal against the imperative to ensure that the first instance judgment does not harm another party’s interests (or public interest) as a result of any judicial error or misfeasance. It is further argued that this is only possible if the court has the discretion to extend the scope of review beyond the request for appeal[78].

In the past, the appellate court may entertain new evidence without any restrictions. Under Art. 139 of the Code, parties may present new evidence during trial (first instance hearing) or on appeal (second instance hearing). This rule has been criticised for causing undue delay[79]. This position has changed with the introduction of the Some Provisions of the Supreme People’s Court on Evidence in Civil Procedure (henceforth, Civil Evidence Rules)[80]. Art. 139 of the Code now has to be viewed in conjunction with Art.s 40 to 45 of the Civil Evidence Rules, i.e. that the parties’ right to present new evidence is not unrestricted[81]. In the case of Guo Chun Xuan v Liu Zong Lai[82] (a first instance decision), the plaintiff applied to the Zhengzhou City Intermediate Court to produce supplemental evidence. The court rejected the application on the basis that the supplemental evidence was not “new evidence”, as it is already in “objective existence” (and in the custody of the plaintiff) during the time period for producing evidence[83]. Similarly, in a second instance decision, the appellate court rejected the appellant’s application to adduce a fresh piece of evidence on two grounds: (a) the evidence was already in existence before the first instance hearing (hence it is not “new evidence” within the meaning of Art. 41 of the Civil Evidence Rules); and (b) unless it is new evidence, the appellate court must not accept any evidence after the expiration of the time-limit for producing evidence (see Art. 43 of the Civil Evidence Rules)[84]. The “objective existence” test[85] is contrasted with the more sophisticated test in Hong Kong for adducing new evidence on appeal pursuant to the principles in Ladd v Marshall[86].

There seems to be no restriction on raising new points of law on appeal[87]. This is contrasted with the position under common law where the introduction of new legal issues on appeal is the exception rather than the norm[88].

The Chinese appellate court’s power to review beyond the request for appeal extends to legal issues (i.e. not limited to factual issues) if an error is identified[89]. Hence, even where the appellant raised no new points of law, the appellate court could arguably examine legal issues that have not been considered at first instance if so doing could help rectify a legal error.

One may argue that China has moved from a “complete review” system to a “limited review” system as Art. 168 of the Code specifically provides that appellate review should be within the scope of the “request for appeal”[90]. However, the defining characteristics of the Chinese appellate review system[91] suggest that a “complete review” system is still in place. The appellate court has almost unlimited authority (save for some minor restrictions) to redefine the remit of the appeal, entertain new evidence and legal issues, actively probe into the merits of the first instance court’s factual and legal findings, and even repeat the whole fact-finding exercise altogether. Liu attribute this practice to the Chinese judicial notion of “base the decision on facts and take the law as the criterion (ye shenshi wei genju yi falu wei zhunsheng)”, which means that the appellate court has an obligation to rectify any error identified in the first instance decision[92]. In other words, substantive justice (in the pure sense) is still the top priority of Chinese civil justice. A limited review would not serve the purpose of defending this kind of substantive justice.

The official position is that Chinese appellate review is a genuine appeal and not a trial de novo. However, based on the above analysis, an appellate review in China can actually operate very much like a trial de novo in practice. Some critics even suggest that second instance proceedings in China cannot qualify as an appeal at all[93].

 4. The Adjudication Supervision Procedure: The nature of adjudication supervision and its underlying policy considerations

Chapter 16 of the Code sets out the key procedural rules for adjudication supervision (shanpan jiandu)[94]. The adjudication supervision procedure allows a legally effective judgment or ruling (or mediation agreement)[95] to be re-opened for re-adjudication[96] on the basis that the decision has been tainted by error[97]. It is a core principle in Chinese civil justice that “errors, when identified, must be corrected” (youcuo bijiu)[98]. Adjudication supervision is a discretionary procedure and should only be used sparingly (i.e. only when a definite error has been identified in the final judgment)[99].

The adjudication supervision procedure can be distinguished from the appellate procedure on a number of levels[100]:

First, unlike an appeal (which, at least in theory, is a complete review in China), a re-adjudication triggered by the adjudication supervision procedure is a trial de novo. From a comparative perspective, re-adjudication in China bears no resemblance to the final appellate procedure in common law jurisdictions[101], or the cassation or Revision procedure in civilian jurisdictions.

Second, while a case can only be appealed once (second instance being the ‘final’ instance)[102], there is no legislative or other limitation on the number of times a case could be reopened under the adjudication supervision procedure[103]. The adjudication supervision procedure can potentially make litigation an endless exercise in China. As promoting “substantive justice” is a fundamental objective of judicial undertaking[104], a case must be re-opened if any definite error is found in a legally effective judgment, no matter how high the procedural cost is.

Third, unlike in the appellate procedure where an appeal must be lodged within a strict time limit (i.e. within 15 days from the date when the written judgment is served), there is no time limit on the court’s exercise of its ex officio power of adjudication supervision under Art. 198 of the Code.

Fourth, while an appeal is a procedure exclusive to the parties (and initiated by the parties), the adjudication supervision procedure can be triggered by non-party entities, such as the adjudicative committee of the court that rendered the legally effective judgment, a higher-level court (and the SPC), a higher-level procuratorate and the people’s congresses.

A “final judgment” in China is not truly final[105]. The lack of finality encroaches on the procedural rights of litigants and throws the overall reliability of the system into doubt. Different reasons were advanced seeking to justify the system of adjudication supervision. The most significant one is that since there are only two instances in any civil lawsuit, adjudication supervision becomes an indispensible recourse for litigants against judgments, as re-adjudication can ensure that a legally effective decision is fair, accurate and just[106]. Another argument is that the re-adjudication process promotes uniformity in the application of law, since any erroneous application of law in a legally effective judgment is a ground for its re-opening under Art. 200 of the Code (i.e. under the party application regime)[107].

The adjudication supervision procedure is also a vital measure to guard against social instability resulting from unjust court rulings. The Central People’s Government’s emphasis on the imperative to build a “harmonious society” (hexie shehui) has set the tone for China’s civil justice reform in the past decade or so[108]. The pressing need to provide redress for aggrieved litigants far outweighs any reform objectives on the procedural level (such as the need to uphold the finality of judgments). Similar to the promotion of court mediation as the preferred form of civil dispute resolution[109], the reform in adjudication supervision has strong underlying policy reasons. Policy-makers have warned of the risks associated with the lack of effective channels for disputants to express their grievances, or in Chinese, the “difficulty of seeking redress through petition” (shensu nan)[110]. Adjudication supervision provides a convenient avenue to alleviate discontent by correcting “errors” in civil judgments that may have social ramifications. By stepping up the power of the courts and procuratorates to re-open judgments that could potentially stir up unrest, proponents of the reform argue that conflict within the community can be channeled from the streets to the courtroom where problems can be handled in a much more controlled manner. This is the real incentive for further strengthening the powers of adjudication supervision in the latest amendment of the Code (in 2012). On a more practical level, a court that chooses wisely in re-opening “sensitive” judgments can avoid the proliferation of citizen petitions[111] (also known as “letters and visits” (xinfang and shangfang))[112]. Consistent with the policy objective of promoting social harmony, leaders of the judiciary would not hesitate to exert pressure on courts to keep petition rates as low as possible[113].



[1] In Chinese: Zhonghua Renmin Gonghe Guo Minshi Susong Fa. The Code came into effect on April 9, 1991. It was revised on October 28, 2007 (henceforth, 2007 Amendment Version). The latest version of the Code was issued on August 31, 2012 and became effective since January 1, 2013 (henceforth, 2012 Amendment Version). This article refers to the latest version of the Code (i.e. the 2012 Amendment Version). With regards to the English translation of the Code and all relevant judicial interpretations of the SPC, the author has consulted the following databases:

http://www.chinalawandpractice.com/Article/3110946/PRC-Civil-Procedure-Law-2nd-Revision.html

http://en.pkulaw.cn/

For a number of provisions of the Code and judicial interpretations, this article uses directly the English translations available in the above databases (with minor adjustments).

[2] In Chinese: Zhonghua Renmin Gonghe Guo Renmin Fayuan Zuji Fa. Effective since 1 January 1980; last amended on October 31, 2006 (amendment effective since January 1, 2007).

[3] Judicial opinions and interpretations of the SPC (on matters relating to civil justice and procedure) are de facto “statutory instruments”. The Code (and other relevant legislations) must be read in conjunction with these opinions and interpretations. See Art. 33 of the Organic Law, which confers power on the SPC to give interpretations “on questions concerning specific application of laws and decrees in judicial proceedings”. If there is any inconsistency between a new interpretation and an old interpretation, the new interpretation prevails: see Article 83 of the Law of Legislation of the People’s Republic of China (effective since July 1, 2000).

[4] In Chinese: Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gonghe Guo Minshi Susong Fa Ruogan Wenti De Yijian. Effective since July 14, 1992 (Judicial Interpretation (Fafa) No. 22, 1992). Note that certain provisions have been repealed by Judicial Interpretation No. 15, 2008.

[5] Art. 175 of the Code and Article 12 of the Organic Law.

[6] Chapter 16 of the Code. There are various translations for the procedure: for instance, another common translation is the “procedure for trial supervision”. See: N.P. Liu. A Vulnerable Justice: Finality of Civil Judgments in China// Columbia Journal of Asian Law. Vol. 13, 1999, pp. 35 – 98, at p. 36.

[7] Article 198 of the Code.

[8] In Chinese: Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gonghe Guo Minshi Susong Fa Shenpan Jiandu Chengxu Ruogan Wenti De Jieshi. Effective since 1 December 2008 (Judicial Interpretation (Fashi). No. 14, 2008).

[9] In Chinese: Zuigao Renmin Fayuan Guanyu Shouli Shencha Minshi Shenqing Zaishen Anjian De Ruogan Yijian. Effective since April 27, 2009 (Judicial Interpretation (Fafa) No. 26, 2009).

[10] In Chinese: Zuigao Renmin Fayuan Guanyu Guifan Renmin Fayuan Zaishen Lian De Ruogan Yijian (Shixing). Effective since November 1, 2002 (Judicial Interpretation (Fafa) No. 13, 2002).

[11] Art. 62(7) of the PRC Constitution. Also see Art. 17 of the Organic Law (courts at various levels must report on their work to the people’s congresses at corresponding levels).

[12] Art. 35 of the Organic Law.

[13] Throughout China’s imperial history, the magistracy (which handled civil cases) had always been part of the bureaucracy rather than a separate and autonomous judicial organ: P.C.H. Chan. The Enigma of Civil Justice in Imperial China: A Legal Historical Enquiry// Maastricht Journal of European and Comparative Law. Vol. 19(2), 2012, pp. 317 – 337, at pp. 322 – 323. This tradition has, in principle, survived until today.

[14] J.H. Zhong, G.H. Yu. Establishing the Truth on Facts: Has the Chinese Civil Process Achieved This Goal?// Journal of Transnational Law & Policy. Vol. 13(2), 2004, p. 393 – 445, at p. 432. But consider A.H.Y. Chen. An Introduction to the Legal System of the People’s Republic of China. 4th edition. LexisNexis, Hong Kong, 2011, p. 209.

[15] Local protectionism remains an important concern for foreign enterprises litigating in China. This problem is particularly acute at the enforcement stage. The government may intervene in favour of the Chinese party (e.g. local businesses or significant state-owned enterprises) if local or national interests are at stake. See M. Zhang. International Civil Litigation in China: A Practical Analysis of the Chinese Judicial System// Boston College International and Comparative Law Review. Vol. 25(1), 2002, pp. 59 – 96, at p. 91.

[16] The second instance court (i.e. appellate court) is the court at the next higher level of the trial court. For instance, if the first instance judgment was rendered by an intermediate court within Province X, the appellate court is the High Court of Province X.

[17] Art. 164 of the Code.

[18] Art. 164 of the Code. Given a ruling only concerns procedural matters, the time limit to appeal against a ruling is shorter than the time limit to appeal against a judgment: see Office for Civil Law of the Legislative Affairs Commission of the National People’s Congress Standing Committee ed. Zhonghua Renmin Gongheguo Minshi Susong Fa Tiaowen Shuoming, lifa liyou ji xiangguan guiding [The Civil Procedure Law of the People’s Republic of China: annotated provisions, legislative reasoning and related regulations]. Beijing Daxue Chupan She [Peking University Press], Beijing, 2007, p. 296.

[19] See: Section 5 of Chapter 12 of the Code. The content of a written judgment must include all the elements set out in Art. 152 of the Code. There are eleven types of rulings (including the catch-all category, “other issues to be resolved by a ruling”), but only three types are appealable: (a) refusal to accept an action; (b) objection to jurisdiction; and (c) dismissal of an action: see Art. 154 of the Code.

[20] A judgment or ruling that have not been appealed within the prescribed time limits will become “legally effective”: see Article 155 of the Code. A “legally effective” judgment can be enforced. It is regarded as “final” in the Chinese procedural sense. The time limit for appeal is imposed with procedural efficiency in mind: see above, footnote 19, p. 296.

[21] Section 14AA(1) of the High Court Ordinance reads, “Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal”.

[22] Art. 165 of the Code.

[23] Art. 178 of the 1992 Opinion.

[24] Such as the names of the parties, the name of the first instance court, the docket number, and the cause of action: see Art. 165 of the Code.

[25] A “request for appeal” is sometimes translated as a “claim of appeal”.

[26] Chexiao (“to set aside”) is sometimes translated as “to revoke”.

[27] Office for Civil Law of the Legislative Affairs Commission of the National People’s Congress Standing Committee ed. Zhonghua Renmin Gongheguo Minshi Susong Fa Tiaowen Shuoming, Lifa Liyou Ji Xiangguan Guiding (2012 Xiuding Ban) [The Civil Procedure Law of the People’s Republic of China: annotated provisions, legislative reasoning and related regulations (2012 revised edition)]. Beijing Daxue Chupan She [Peking University Press], Beijing, 2012, pp. 276 – 277.

[28] Article 166 of the Code. If the notice of appeal is submitted to the appellate court, the appellate court must (within five days) transfer the notice of appeal to the first instance court, which will then handle procedural matters relating to the appeal, i.e. whether the time limit has expired and whether the notice of appeal has complied with the formalities. The option to submit the notice of appeal directly to the appellate court at least gives the appellant some comfort of impartiality. Ibid., pp. 277 – 288.

[29] Art. 167 of the Code. Upon receiving the notice of appeal, the written response, all relevant evidence and the case file, the first instance court must within five days forward the same to the appellate court.

[30] Art. 168 of the Code. Under certain circumstances, the appellate court is not bound by the scope of the request for appeal in its review of the case: see W.P. Zhang, H. Li. Xin Minshi Susong Fa Yuanli Yu Shiyong [Principles and Application of the New Civil Procedure Law]. Renmin Fayuan Chuban She [Courtpress], Beijing, 2012, p. 323.

[31] A collegiate bench consists of three judges. The presiding judge heads the bench, while the “responsible judge” (chengban faguan) takes care of the administrative aspects of the case. Court mediation is usually conducted by the responsible judge (acting as the mediator).

[32] Under Art. 169 of the Code, the collegiate bench may verify the case by consulting the first instance case files, making its own investigations and questioning the parties. Nothing in the Code restricts the scope of the court’s investigation in the verification process. So arguably, the court may probe into matters beyond the scope of the request for appeal even at this verification stage.

[33] Under Art. 169 of the Code, where no new facts, evidence or grounds are submitted by the parties, and the collegiate bench takes the view that no court hearing is necessary, the appeal may proceed without a hearing. In some translations of Art. 169 of the Code, the word “trial” is used to describe an appellate hearing (kaiting shenli). However, “court hearing” is a better translation, as it avoids any possible confusion (a trial commonly refers to the first instance hearing).

The decision that the appeal should proceed without a hearing must be unanimous: see Y.L. Fu. Lun Minshi Shangsu Chengxu De Gongneng Yu Jiegou – Bijiao Fa Shiye Xia De Ershen Shangsu Moshi [The Function and Structure of Civil Appeal Procedures – A Study of the Two-Instance Appellate Model from a Comparative Perspective]// Faxue Pinglun [Law Review ], Vol. 4, 2005, pp. 36 – 44, at p. 44.

[34] If the appeal proceeded without a court hearing, the collegiate bench would make a decision on the basis of a paper review and its own investigations (the bench has the benefit of questioning the parties and making its own investigations under Article 169 of the Code). It is therefore argued that an appellate review without a hearing is not a mere paper review as the court may supplement its decision with evidence gathered from its own investigations: see above, footnote 31, p. 324.

[35] In Chinese: Zuigao Renmin Fayuan Guanyu Minshi Jingji Shenpan Fangshi Gaige Wenti Ruogan Guiding. Effective since July 11, 1998 (Judicial Interpretation (fashi) No. 14, 1998).

[36] Art. 188 of the 1992 Opinion.

[37] Art. 170 of the Code.

[38] The Code is silent on what “a clear finding of facts” means. Presumably, based on a reading of the whole Art. 170 of the Code, an appellate decision that there was a clear finding of facts at first instance implies that the first instance decision (a) contains no factual error within the meaning of Art. 170(2); and (b) was based on a clear finding of “basic facts” (as well as non-basic facts) within the meaning of Art. 170(3). Ultimately, it is a judgment call for the appellate court to decide whether the facts established at first instance are accurate and sufficiently support the decision rendered.

[39] Art. 170(1) of the Code.

[40] Reversing, modifying and setting aside a first instance decision (or parts of the decision) are different levels or methods of overruling the first instance decision (or parts of the decision).

[41] Art. 170(2) of the Code applies when the decision has been tainted by factual error, legal error or both: see above, footnote 28, p. 283. If the decision is only tainted by legal error, the appellate court will only rectify the legal error without disturbing the fact-finding determinations of the first instance court: see above, footnote 19, p. 308.

[42] Note that Outcome (3)(i) refers to an unclear finding of “basic facts”. A “basic fact” is not defined in the Code. According to an authoritative annotation of the Code, a basic fact is a material fact that may determine the outcome of the case: see above, footnote 28, pp. 283 – 284.

[43] A remittal of a case by the appellate court to the first instance court for a “new trial” (chongshen) is distinguished from the re-opening of a final decision for “re-adjudication” (zaishen) (under the adjudication supervision procedure).

[44] The Code did not specify that Outcome 3(ii) is in relation to “non-basic” facts. But such an inference can be drawn by reading Art. 170(3) in its entirety. The provision essentially provides two ways for handling situations of unclear fact-finding: if the facts involved are basic facts, then given the severity of the factual irregularity, the case should be remitted to the original court for a new trial; but if the facts involved are not basic facts, the factual irregularity is less severe and therefore the appellate court should (for procedural efficiency reason) handle the matter on its own. See above, footnote 28, pp. 283 – 284,

[45] Art.170(3) of the Code.

[46] Art.170(4) of the Code. This provision has been revised in the 2012 Amendment Version of the Code. In the 2007 Amendment Version of the Code, any procedural violation that may affect the correctness of the outcome is arguably a ground for setting aside the first instance decision. In the 2012 Amendment Version of the Code, only serious procedural violation could constitute a ground for setting aside a first instance decision. The revision avoids the situation where a judgment is set aside for technical procedural violations. A list of serious procedural violations is provided in an SPC judicial interpretation: see Art.181 of the 1992 Opinion.

[47] Art.186 of the 1992 Opinion; also see above, footnote 31, p. 326. Where the appellate court is of the view that a case should not have been accepted by the people’s court at all, it may dismiss the action altogether when setting aside the first instance decision: see above, footnote 28, p. 253. Art.186 of the 1992 Opinion gives a special power to the appellate court to dismiss an action in appellate proceedings.

[48] In the 2007 Amendment Version of the Code, the possible outcomes of an appeal against a ruling are not specified. Judges handling appeals against rulings need to infer from the old provision that refers only to judgments. The 2012 Amendment Version rectified this problem by making express provision for the possible outcomes of an appeal against a ruling in Article 170(1) and Art.170(2) of the Code: see above, footnote 28, p. 284.

[49] Ibid., pp. 283 – 284.

[50] See above, footnote 19, p. 309. Based on a review of a number of sample appellate cases reported in the Gazette of the Supreme People’s Court of the People’s Republic of China [Zuigao Renmin Fayuan Gongbao] and the old provision of the Code that dealt with factual issues in an appeal (Art.153(3) of the 2007 Amendment Version of the Code), “factual error” simply means an inaccurate finding of facts; while “an unclear finding of facts” generally means that the fact-finding of the first instance judgment is either incomplete, inconsistent (or contradictory), contains a factual error, or the supporting evidence is inconclusive (or any combination of the above).

[51] The appellate court renders a “ruling” to set aside a first instance judgment and remitting the case for a new trial. It is a demonstration of the powers of a higher court to supervise the lower court. See above, footnote 19, p. 310.

[52] Art.170 of the Code.

[53] A. Uzelac. Survival of the Third Legal Tradition?, in Common Law, Civil Law and the Future of Categories. J. Walker, O.G. Chase eds. LexisNexis, Markham, 2010, pp. 377 – 396, at p. 390.

[54] Art.170 of the Code. In fact, Art.170 incorporated an earlier judicial interpretation restricting the number of remittal to one: see Art.1, Provisions of the Supreme People's Court on the Relevant Issues of Remanding for a New Trial and Ordering for a Retrial of Civil Case [Zuigao Renmin Fayuan Guanyu Renmin Fayuan Dui Minshi Anjian Fahui Chongshen He Zhiling Zaishen Youguan Wenti De Guiding] (henceforth, 2002 Provisions), effective since August 15, 2002 (Judicial Interpretation (fashi), No. 24 ,2002).

[55] Art.171 of the Code.

[56] No court hearing is necessary for appeals against rulings: see above, footnote 28, p. 286.

[57] Art.173 of the Code.

[58] See above, footnote 28, p. 288. It is arguable, in line with the principle of party disposition, that the court should not retain the substantive power to disallow a withdrawal of an appeal (particularly when there is no cross appeal). But it is unlikely that the Chinese court would give up this power.

[59] Art.174 of the Code.

[60] Art.176 of the Code. The time limit may be extended under special circumstances with the approval of the court president.

[61] Art 236 of the Code.

[62] Art.175 of the Code; Article 12 of the Organic Law.

[63] See above, footnote 34, pp. 40 – 41. This section discusses characteristics (1)-(3). Characteristics (4) and (5) are explained above.

[64] The court’s power to review matters outside the scope of the request for appeal is subject to certain restrictions: see Article 35 of the 1998 Provisions.

[65] Records of the first instance proceedings should still be the basis of the review, but should not limit the scope of the review. In principle, the norm is still for the appellate court to hold a hearing. In practice, however, judges burdened by heavy caseloads are more inclined to do away with hearings (under Art.169 of the Code): see above, footnote 34, pp. 40 – 41.

[66] Ibid., p. 40 – 41.

[67] Ibid., p. 40 – 41.

[68] As argued below, the appellate court is at liberty to move beyond the scope of the appellant’s “request for appeal” under certain circumstances.

[69] See above, footnote 28, p. 279.

[70] See above, footnote 31, p. 320.

[71] M. Wilkinson, E.T.M. Cheung, C.N. Booth eds. A Guide to Civil Procedure in Hong Kong. 4th edition. LexisNexis, Hong Kong, 2011, pp. 1061 – 1063.

[72] Ibid., pp. 1061 – 1063.

[73] Under Art.169 of the Code, the appellate court may decide whether a court hearing is necessary after verifying the facts of the case by consulting the first instance case files, making necessary investigations, and questioning the parties. If the court believes that it is not necessary to have a hearing, it may make a judgment or ruling without a hearing. For further discussion of the appellate court making a judgment or ruling without a hearing, see above, footnote 7, p. 49.

[74] Art.35 of the 1998 Provisions. The text of Art.35 did not mention “rights” of another party, only “interests”, but the meaning should encompass “rights” of another party as well: see above, footnote 31, p. 320.

[75] If there is any inconsistency between a new interpretation and an old interpretation, the new interpretation prevails: see Art.83 of the Law of Legislation of the People’s Republic of China (effective since July 1, 2000).

[76] See above, footnote 31, p. 320.

[77] See above, footnote 31, pp. 320 – 321.

[78] See above, footnote 28, pp. 279 – 280.

[79] See M. Zhang, P.J. Zwier. Burden of Proof: Developments in Modern Chinese Evidence Rules// Tulsa Journal of Comparative & International Law. Vol. 10(2), 2002-2003, pp. 419 – 471, at pp. 430 – 431; also see above, footnote 54, p. 392.

[80] In Chinese: Zuigao Renmin Fayuan Guanyu Minshi Susong Zhengju de Ruogan Guiding. Effective since April 1, 2002 (Judicial Interpretation (fashi), No. 33, 2001). Note that there are some discrepancies in the English translation of the rules. It is sometimes translated as Specific Provisions on Evidence in Civil Actions of the Supreme People’s Court or Several Rules of Evidence Concerning Civil Litigation. The Civil Evidence Rules consist of 83 articles and remain the most comprehensive legal instrument regulating civil fact-finding to date.

[81] “New evidence” is clearly defined. See respective definition in the context of first instance proceedings and second instance proceedings: Art. 41 of the Civil Evidence Rules.

[82] [(2008) zhengmin sanchu zi (No. 99)] (reported civil judgment of the Zhengzhou Intermediate People’s Court, Henan Province).

[83] Ibid.

[84] Xin Lian Hua v Bank of Tianjin (Xingang Office of the Tanggu Branch) (second instance civil judgment of the Tianjin Second Intermediate People’s Court. Delivered on February 23, 2004; reported in the Gazette of the Supreme People’s Court of the People’s Republic of China).

[85] Article X of the Notice of the Supreme People’s Court on Applying the Provisions on Time Limit for Producing Evidence of the Some Provisions on Evidence in Civil Procedures. In Chinese: Zuigao Renmin Fayuan Guanyu Shiyong Guanyu Minshi Susong Zhengju de Ruogan Guiding Zhong Youguan Juzheng Shixian de Tongzhi. Effective since 11 December 2008 (Judicial Interpretation (fafa), No. 42, 2008).

[86] [1954] 1 WLR 1489, 1491. For the Hong Kong test, see above, footnote 72, p. 1044.

[87] See above, footnote 7, p. 50.

[88] For instance, for the position in Hong Kong, see Flywin Co Ltd v Associates [2002] 2 HKLRD 485, 495.

[89] Art. 180 of the 1992 Opinion.

[90] See above, footnote 7, p. 51.

[91] See above, footnote 34, p. 40.

[92] See above, footnote 7, pp. 51 – 52.

[93] Zhang and Li observed that the Chinese appellate procedure is unique and does not fall into the usual theoretical categories of appellate systems: see above, footnote 31, p. 320; Fu argued that China’s appellate system embraces the socialist model of complete review coupled with the principle that the appellate court has the obligation to “supervise” and “direct” the first instance court through the appellate procedure: see above, footnote 34, p. 40 – 41; also see above, footnote 7, p. 48.

[94] A special division in each court deals specifically with matters of adjudication supervision and conducts re-adjudication.

[95] A “mediation agreement” (tiaojie shu) is a written court-sanctioned settlement agreement reached through court mediation. It has the same legal effect as a civil court judgment and can be enforced directly by the parties. It is sometimes translated as a “consent order” or a “written mediation statement”. For an overview of court mediation in China, see P.C.H. Chan. Efficiency and Truth in Civil Fact-finding: The Evolving Role of the Judge in Mainland China and Hong Kong and the Effect of the Policy Preference for Court Mediation on Fact-finding in the People's Courts, in Truth and Efficiency in Civil Litigation: Fundamental Aspects of Fact-finding and Evidence-taking in a Comparative Context. : C.H. van Rhee, A. Uzelac eds., Intersentia, Antwerp, 2012, pp. 231 – 260, at pp. 250 – 256.

[96] “Re-adjudication” (zaishen)(sometimes translated as “retrial”), is a key component of the adjudication supervision procedure. A “re-adjudication” must be distinguished from a “new trial” (chongshen) triggered by the remittal of a case from the appellate court to the first instance court in the appellate procedure.

[97] The threshold for re-opening a legally effective decision varies with the entity initiating the adjudication supervision process. For instance, if a party applies for re-adjudication, the legally effective decision must fall under any of the circumstances set out in Article 200 of the Code. If the adjudicative committee of the court that rendered the legally effective judgment sought to re-open the case, a finding of “definite error” in the judgment is required (see Article 198 of the Code).

[98] See above, footnote 31, p. 332.

[99] Woo noted, “Adjudication supervision (“shenpan jiandu”), or supervisory review, is a procedure for additional, but discretionary, reviews of final judgments”: M.Y.K. Woo. Adjudication Supervision and Judicial Independence in the P.R.C.// American Journal of Comparative Law. Vol. 39(1), 1991, pp. 95 – 119, at p. 97.

[100] Ibid., pp.100 – 101.

[101] For instance, the leave stage for re-adjudication in China does not involve a quantum threshold (as found in the final appellate review procedure in some common law jurisdictions, such as Hong Kong).

[102] This position is subject to the situation where the appellate court remits the case to the first instance court for a new trial. The judgment rendered in the new trial (which is a first instance judgment) can be appealed only once: see Article 170 of the Code.

[103] Consistent with the Chinese concept that substantive justice must prevail over procedural justice, a re-adjudicated case can still be re-opened if a “definite error” is identified. While the same court should not re-try a case that it has re-adjudicated before, it does not prevent further re-adjudication by a different court (for instance, a higher-level court): see Article 2 of the 2002 Provisions. However, see the Circular of the Supreme People's Court on Correctly Applying the ‘Provisions on the Relevant Issues of Remanding for a New Trial and Ordering for a Retrial of Civil Cases’ (Zuigao Renmin Fayuan Guanyu Zhengque Shiyong ‘Guanyu Renmin Fayuan Dui Minshi Anjian Fahui Chongshen He Zhiling Zaishen Youguan Wenti De Guiding’ De Tongzhi), effective since 13 November 2003 (Judicial Interpretation, No. 169, 2003), which elaborated that the same court should only be allowed to re-adjudicate the case once under “normal circumstances”. It appears that this clarification leaves the door open for the same court to retry a case for more than once under special circumstances. Also see above, footnote 7, p. 36.

[104] The author conducted interviews with judges at different levels of the Chinese Judiciary. The message has been consistent: if substantive justice could only be achieved by bending certain procedural rules, the judge would be inclined to do so: based on an interview (in May 2012) with a basic court judge who specializes in intellectual property adjudication in a leading commercial city in China.

[105] Liu argued that Chinese legal tradition and the political system play an important role in determining the “meaning of finality” in China: see above, footnote 7, p. 36.

[106] See above, footnote 19, p. 346.

[107] Z.B. Jin. From a Supplementary Legislator to a Legitimate Judicial Lawmaker – On the Role of the Supreme People’s Court in Developing the Law in Mainland China, in Towards a Chinese Civil Code: Comparative and Historical Perspectives. L. Chen, C.H. van Rhee eds. Martinus Nijhoff Publishers, Leiden, 2012, pp. 2960, at p. 38.

[108] See above, footnote 96, p. 250.

[109] Ibid., p. 250.

[110] Among other similar views, a leading book series on adjudication supervision authored by policy-makers at the SPC described the ‘difficulty of seeking redress through petition’ as a “deep-seated problem” and took the view that the recent civil justice reform (leading to the revision of the Code in 2012) had positive effects in tackling this problem and protecting social harmony: see B.X. Jiang, X.Z. Sun, C.H. Wang. Xin Minshi Susong Fa: Shenpan Jiandu Chengxu Jiangzuo [Lectures On Civil Trial Supervision Procedure]. Falu Chuban She [Law Press China], Beijing, 2012, p. 7. The “difficulty of seeking redress through petition” is not a new issue. The SPC has in the past emphasized the imperative of the Chinese Judiciary to improve its adjudication supervision regime so as to deal with this problem: for instance, see the Working Report of the Supreme People’s Court (2006) (Zuigao Renmin Fayuan Gongzuo Baogao), delivered on March 11, 2006 before the National People’s Congress.

[111] Note that the right to petition (shensu quan) is enshrined in Article 41 of the PRC Constitution. Also note Article 2 of the Regulations on Letters and Visits, Decree of the State Council of the People’s Republic of China (No. 431) (Guowu Yuan Xinfang Tiaoli) (effective since 1 May 2005).

[112] Under the policy of preventing citizen petitions from reaching higher-level authorities, judges throughout China are under tremendous pressure to settle disputes through court mediation. Once a dispute is settled, it is quite unlikely that litigants would resort to petitions. See C.F. Minzner. China’s Turn Against Law// American Journal of Comparative Law. Vol. 59(4), 2011, pp. 935 – 984, at p. 958.

[113] Ibid., p. 958.

Each court would usually set up more or less the same mechanism that connects the petitions received with the relevant civil judgments that can be re-opened. For cases of great social significance, the court may form a collegiate bench of five judges to retry the case (as oppose to the norm of three judges): see C.K. Zhou et. al. eds. Law Yearbook of China (2009). Press of Law Yearbook of China, Beijing, 2009, p. 175.

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