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Chapter III Procedure of Second Instance

Article 180 If the defendant, private prosecutor or their legal representatives refuse to accept a judgment or order of first instance made by a local People's Court at any level, they shall have the right to appeal in writing or orally to the People's Court at the next higher level. Defenders or near relatives of the defendant may, with the consent of the defendant, file appeals.

A party to an incidental civil action or his legal representative may file an appeal against that part of a judgment or order of first instance made by a local People's Court at any level that deals with the incidental civil action .

A defendant shall not be deprived on any pretext of his right to appeal.

Article 181 If a local People's Procuratorate at any level considers that there is some definite error in a judgment or order of first instance made by a People's Court at the same level, it shall present a protest to the People's Court at the next higher level.

Article 182 If the victim or his legal representative refuses to accept a judgment of first instance made by a local People's Court at any level, he shall, within five days from the date of receiving the written judgment, have the right to request the People's Procuratorate to present a protest. The People's Procuratorate shall, within five days from the date of receiving the request made by the victim or his legal representative, decide whether to present the protest or not and give him a reply.

Article 183 The time limit for an appeal or a protest against a judgment shall be 10 days and the time limit for an appeal or a protest against an order shall be five days; the time limit shall be counted from the day after the written judgment or order is received.

Article 184 If a defendant, private prosecutor, or a plaintiff or defendant in an incidental civil action files an appeal through the People's Court which originally tried the case, the People's Court shall within three days transfer the petition of appeal together with the case file and the evidence to the People's Court at the next higher level; at the same time it shall deliver duplicates of the petition of appeal to the People's Procuratorate at the same level and to the other party.

If a defendant, private prosecutor, or a plaintiff or defendant in an incidental civil action files an appeal directly to the People's Court of second instance, the People's Court shall within three days transfer the petition of appeal to the People's Court which originally tried the case for delivery to the People's Procuratorate at the same level and to the other party.

Article 185 If a local People's Procuratorate protests against a judgment or order of first instance made by the People's Court at the same level, it shall present a written protest through the People's Court which originally tried the case and send a copy of the written protest to the People's Procuratorate at the next higher level. The People's Court which originally tried the case shall transfer the written protest together with the case file and evidence to the People's Court at the next higher level and shall deliver duplicates of the written protest to the parties.

If the People's Procuratorate at the next higher level considers the protest inappropriate, it may withdraw the protest from the People's Court at the same level and notify the People's Procuratorate at the next lower level.

Article 186 A People's Court of second instance shall conduct a complete review of the facts determined and the application of law in the judgment of first instance and shall not be limited by the scope of appeal or protest.

If an appeal is filed by only some of the defendants in a case of joint crime, the case shall still be reviewed and handled as a whole.

Article 187 A People's Court of second instance shall form a collegial panel and open a court session to hear a case of appeal. However, if after consulting the case file, interrogating the defendant and heeding the opinions of the other parties, defenders and agents ad litem, the collegial panel thinks the criminal facts are clear, it may open no court session. A People's Court of second instance shall open a court session to hear a case protested by a People's Procuratorate.

When a People's Court of second instance opens a court session to hear a case of appeal or protest, it may do so in the place where the case occurred or in the place where the People's Court which originally tried the case is located.

Article 188 With respect to both cases protested by a People's Procuratorate and cases of public prosecution tried by a People's Court of second instance in a court session , the People's Procuratorate at the same level shall send its procurators to the court. The People's Court of second instance must, 10 days before opening of the court session, notify the People's Procuratorate to examine the case files.

Article 189 After hearing a case of appeal or protest against a judgment of first instance, the People's Court of second instance shall handle it in one of the following manners in light of the different situations:

(1) if the original judgment was correct in the determination of facts and the application of law and appropriate in the meting out of punishment, the People's Court shall order rejection of the appeal or protest and affirm the original judgment.

(2) if the original judgment contained no error in the determination of facts but the application of law was incorrect or the punishment was inappropriately meted out, the People's Court shall revise the judgment.

(3) if the facts in the original judgment were unclear or the evidence insufficient, the People's Court may revise the judgment after ascertaining the facts, or it may rescind the original judgment and remand the case to the People's Court which originally tried it for retrial.

Article 190 In the trial of a case appealed by a defendant, or his legal representative, defender or near relative, the People's Court of second instance may not increase the criminal punishment on the defendant.

The restriction laid down in the preceding paragraph shall not apply to cases protested by a People's Procuratorate or cases appealed by private prosecutors.

Article 191 If a People's Court of second instance discovers that when hearing a case, a People's Court of first instance violates the litigation procedures prescribed by law in one of the following ways, it shall rule to rescind the original judgment and remand the case to the People's Court which originally tried it for retrial:

(1) violating the provisions of this Law regarding trial in public;

(2) violating the withdrawal system;

(3) depriving the parties of their litigation rights prescribed by law or restricting, such rights, which may hamper impartiality of a trial;

(4) unlawful formation of a judicial organization; or

(5) other violations against the litigation procedures prescribed by law which may hamper impartiality of a trial.

Article 192 The People's Court which originally tried a case shall form a new collegial panel for the case remanded to it for retrial, in accordance with the procedure of first instance. With respect to the judgment rendered after the retrial, an appeal or protest may be lodged in accordance with the provisions of Article 180, 181 or 182 of this Law.

Article 193 After a People's Court of second instance has reviewed an appeal or protest against an order of first instance, it shall order rejection of the appeal or protest or rescind or revise the original order respectively with reference to the provisions of Article 189,190 or 192 of this Law.

Article 194 The People's Court which originally tried a case shall calculate the time limit anew for the trial of the case remanded to it by the People's Court of second instance from the date of receiving the case remanded.

Article 195 A People's Court of second instance shall try cases of appeal or protest with reference to the procedure of first instance, in addition to applying the provisions in this Chapter.

Article 196 After accepting a case of appeal or protest, a People's Court of second instance shall conclude the trial of the case within one month, or one and a half months at the latest. Under one of the situations provided in Article 126 of this Law, the period may be extended by one month upon the approval or decision by the Higher People's Court of a province, autonomous region or municipality directly under the Central Government. However, with respect to cases of appeal or protest accepted by the Supreme People's Court, the matter shall be decided by the Supreme People's Court itself.

Article 197 All judgments and orders of second instance and all judgments and orders of the Supreme People's Court are final.

Article 198 The public security organs, People's Procuratorates and People's Courts shall have the property, things of value of the criminal suspects and defendants, as well as the fruits accruing therefrom, that they have seized or frozen well kept for examination. No units or individuals shall misappropriate them or dispose of them without authorization. The lawful property of the victims shall be returned to them without delay. Prohibited articles and perishable things shall be disposed of in accordance with the relevant regulations of the State.

Things that serve as tangible evidence shall be transferred together with the case, but for things that are unsuitable to be transferred, their inventory and photos and other documents of certification shall be transferred together with the case.

After a judgment rendered by the People's Court becomes effective, all the seized or frozen illicit money and goods as well as the fruits accruing therefrom, except those that are returned to the victim according to law, shall be confiscated and turned over to the State Treasury.

Any judicial officer who embezzles or misappropriates or disposes of the seized or frozen illicit money and goods as well as the fruits accruing therefrom without authorization shall be investigated for criminal responsibility according to law; if the offence does not constitute a crime, he shall be given administrative sanction.

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