Supreme People’s Court

Thirty-One Judicial Views on Retrial Judgments and Proceedings

01. Where, after a court has initiated a retrial of an effective civil mediation agreement on its own initiative, it determines that no modification of the judgment is warranted, it shall issue an order terminating the retrial proceedings.

Opinion Analysis:

Where, pursuant to Article 198 of the Civil Procedure Law, a people’s court initiates a retrial procedure with respect to a mediation agreement that has already attained legal effect, and upon review finds that the grounds for alleging harm to national interests or public interests are unfounded, the court shall, in accordance with Article 409 of the Civil Procedure Law, issue a ruling terminating the retrial proceedings. If a mediation agreement whose enforcement was suspended by the people’s court is required to be resumed, enforcement shall automatically be reinstated.

Source of the view: Compiled by the First Civil Adjudication Division of the Supreme People’s Court, “Civil Judgment Guidance and Reference” (Issue No. 71).

02. Cases remanded for retrial by a higher people’s court are retried by the original trial people’s court, in accordance with the principle of permanence of jurisdiction in civil litigation—The appellant, Fuyang Minsheng Hospital, is involved in a dispute over a construction contract with the appellee, Chen Moujun, the original defendant, Fuyang Trauma Hospital, and Jiangxi JianGong Fourth Construction Co., Ltd.

Summary of the ruling:

The Higher People’s Court of Anhui Province instituted proceedings in this case on November 29, 2019, pursuant to the civil ruling (2019) Supreme People’s Court Min Zhong No. 1350 issued by this court on September 27, 2019, which directed that “this case be tried by the Higher People’s Court of Anhui Province.” The Higher People’s Court of Anhui Province’s rejection of Fuyang Minsheng Hospital’s objection to jurisdiction is consistent with the principle of permanence of jurisdiction in civil litigation and is without impropriety.

Case No.: (2021) Supreme People’s Court Min Xie Zhong No. 9

03. If a party, having already raised an issue in the first-instance judgment as a ground for appeal, now invokes it as a ground for applying for a retrial, can such a claim be sustained?

Answer: It cannot be established.

Opinion Analysis:

Trial Supervision Procedure It should be a corrective procedure, meaning that a retrial may only be initiated when an already effective judgment, ruling, or mediation agreement is demonstrably erroneous. Following the first-instance proceedings, whether to file an appeal, which issues to challenge, and what grounds to advance—all these are matters of the parties’ disposition of their civil rights and procedural rights. With respect to issues already adjudicated in the first-instance judgment, if the parties fail to raise objections on appeal, such silence shall be construed as acceptance of the corresponding findings. To subsequently invoke those same issues in a retrial application would contravene the principle of good faith. Moreover, pursuant to Article 168 of the Civil Procedure Law, “the people’s court of second instance shall review the facts and the applicable law relevant to the appeal.” In the second-instance proceedings, if the parties do not bring up the issue in their appeal and no dispute has been raised between them, the second-instance court is under no obligation to examine the matter, let alone determine whether it is erroneous. Accordingly, for a party to rely on this ground to contend that the second-instance judgment is flawed and to seek a retrial is plainly untenable.

Source of the view: Compiled by the First Civil Adjudication Division of the Supreme People’s Court, “Civil Judgment Guidance and Reference” (No. 74), “Civil Judgment Mailbox.”

04. The court shall, on its own initiative, review whether the application for retrial has exceeded the statutory time limit.

Summary of the ruling:

Even if the respondent in a retrial application fails to raise an objection on the ground that the statutory time limit for filing such an application has expired, the court shall, ex officio, examine whether the party’s application for retrial has indeed exceeded that statutory time limit.

Pursuant to Article 205 of the Civil Procedure Law, a party seeking a retrial must file the application within six months after the judgment or ruling has become legally effective; if any of the circumstances set forth in Items 1, 3, 12, and 13 of Article 200 of this Law apply, the application must be filed within six months from the date when the party knew or ought to have known of such circumstances. In the present case, the second-instance judgment was rendered on September 6, 2016, and duly served in accordance with the law; by the time the applicant filed the retrial application on December 12, 2019, the statutory six-month period for filing such an application had long since expired. If Jinxia Company seeks a retrial on the ground that new evidence is sufficient to overturn the original judgment or ruling, it must be examined whether the application was filed within six months from the date when it knew or ought to have known of such evidence.

Case No.: (2020) Supreme People’s Court Min Shen No. 4706

05. The second-instance court’s service procedure was lawful and thereby remedied the procedural defects in the first-instance court’s service; therefore, the recipient’s application for retrial on this ground is not supported by the people’s court—Dispute over a loan contract between the applicant for retrial, Funing Tianbao Mining Co., Ltd., and the respondent, Guangxi Qicheng Energy & Chemical Co., Ltd., the second-instance appellant, Shandong Yahao Import & Export Co., Ltd., as well as the first-instance defendants, Yunnan Juyi Mining Co., Ltd., Yunnan Shenda Mining Co., Ltd., Funing Zhongrun Tianbao Pelletizing Co., Ltd., Funing Fangzhou Mining Co., Ltd., Changwu Xinyuan Coal Washing Co., Ltd., Guizhou Changfeng Coking Co., Ltd., and Wang Moulei.

Summary of the ruling:

The Supreme People’s Court held that, on May 5, 2017, the legal representative of Tianbao Company was Mr. Sun. However, the court of first instance served the summons, notice of evidence submission, notice of response, and other procedural documents directly to Mr. Wang for signature, even though Mr. Wang was neither the legal representative nor the person designated by Tianbao Company to receive such documents. Consequently, the first-instance court’s service procedure was improper. Article 92, Paragraph 1 of the Civil Procedure Law of the People’s Republic of China provides: “If the whereabouts of the addressee are unknown, or if service cannot be effected by any of the methods prescribed in this section, service shall be effected by public notice. Sixty days from the date of publication of the notice, it shall be deemed to have been served.” In the present case, after the second-instance court duly mailed the summons, notice of evidence submission, notice of response, and other procedural documents to Tianbao Company’s registered address, the delivery was returned due to the absence of a recipient. Thereafter, the second-instance court published a notice in the People’s Court Daily to effect service on Tianbao Company, a procedure that was lawful and proper. Therefore, although the first-instance court’s service of the summons, notice of evidence submission, notice of response, and other procedural documents to Tianbao Company was flawed, the second-instance court’s service of the corresponding documents was lawful and ensured that Tianbao Company’s litigation rights were protected. Accordingly, Tianbao Company’s application for retrial on this ground is hereby rejected.

Case No.: (2020) Supreme People’s Court Min Shen No. 4209

06. With respect to issues that have already been adjudicated and established in the judgment, if the parties did not raise them as grounds for appeal but subsequently invoke them as one of the grounds when applying for a retrial, can such an application be sustained?

Answer: Article 198, Paragraph 1 of the Civil Procedure Law provides: “The presidents of people’s courts at all levels, upon discovering that a judgment, ruling, or mediation statement that has already taken legal effect in their court is indeed erroneous and deems a retrial necessary, shall submit the matter to the adjudication committee for discussion and decision.” Article 190 of the same law stipulates: “A party who believes that a judgment or ruling that has already taken legal effect contains errors may apply to the next higher people’s court for a retrial; in cases where one party consists of a large number of persons or where both parties are citizens, the application may also be made to the original trial people’s court. An application for retrial by a party does not suspend the execution of the judgment or ruling.” From this it can be seen that the trial supervision procedure is an error-correction mechanism: a retrial may only be initiated when a judgment, ruling, or mediation statement that has already become effective is demonstrably erroneous. At the same time, pursuant to Article 13, Paragraph 2 of the Civil Procedure Law, “Parties have the right, within the limits prescribed by law, to dispose of their civil rights and litigation rights.” Whether to appeal after the first-instance judgment, which issues to challenge, and what grounds to advance; as well as whether to apply for a retrial after the first- or second-instance judgment has taken effect, which issues to raise in such an application, and on what grounds—these matters all fall within the scope of a party’s disposition of its own civil rights and litigation rights. Moreover, in accordance with Article 13, Paragraph 1 of the Civil Procedure Law, “Civil litigation shall adhere to the principle of good faith.” A party’s disposition of its own rights must comply with the requirements of this principle. On the one hand, with respect to issues already determined in the first-instance judgment, if a party fails to raise objections on appeal, such silence shall be deemed an acknowledgment of those findings. If, after the second-instance judgment is rendered, a party seeks a retrial and then raises objections to the same issue, such exercise and disposition of its litigation rights would contravene the principle of good faith set forth in Article 13, Paragraph 1 of the Civil Procedure Law. On the other hand, under Article 168 of the Civil Procedure Law, “The second-instance people’s court shall review the facts and the applicable laws relevant to the appeal request.” During the second-instance proceedings, if a party appeals on a particular issue but no genuine dispute has arisen between the parties, the second-instance court is not required to examine that issue, let alone determine whether an error exists. Consequently, a party’s subsequent assertion that the second-instance judgment is erroneous and its ensuing application for retrial on this ground clearly lacks merit.

Source of the view: Civil Judgment Practice Q&A, compiled by the First Civil Adjudication Division of the Supreme People’s Court.

07. A ruling on correction of defects does not err in rectifying typographical errors in the operative part of a judgment and is therefore not subject to retrial—Dispute over shareholders’ capital contributions between the retrial applicant, Jilin Jifu Ginseng Biotechnology Co., Ltd., and the respondents, Wang Mouliang and Ma Moupou.

Summary of the ruling:

I. The company’s Articles of Association, duly filed with the industrial and commercial registration authority, stipulates that the party subscribed for shares in the company by way of monetary contributions. Both the company’s capital verification report and the corresponding cash payment vouchers conoffice that the party fully paid its share capital in cash. Furthermore, the company has issued to the party a… Certificate of Shareholder Contribution The aforementioned circumstances are sufficient to establish that it has fulfilled its capital contribution obligations.

II. Whether to summon witnesses to testify in court is determined by the court based on the needs of the proceedings and does not constitute a statutory ground for initiating a retrial. The second-instance court’s correction of typographical errors in the dispositive part of the judgment through a supplementary ruling was proper. The court will not accept a retrial application filed on this basis.

Case No.: (2020) Supreme People’s Court Min Shen No. 3434

08. With respect to cases remanded for retrial after a review, the court’s adjudication constitutes a re‑examination of the dispute between the parties, and such cases should be treated as new first‑instance proceedings. The parties’ procedural rights and obligations shall be determined in accordance with the relevant provisions governing first‑instance procedures. If, during the retrial, the plaintiff withdraws the action and subsequently files another suit, the court shall accept the case—Wu Moubin v. Xinyu Dongya Materials Co., Ltd. Dispute over Conofficeation of Ownership.

Summary of the ruling:

To accurately interpret the intent of legal norms and uphold the normative unity of the legal system, it is necessary to adopt a systematic interpretive approach, examining the connections among statutory provisions within the legal framework to ascertain the meaning of legal norms and the connotations of legal terms. The Civil Procedure Law provides for trial procedures that include first-instance proceedings, second-instance proceedings, trial supervision proceedings, as well as special procedures, summary procedures, and public notice‑and‑demand procedures. With respect to trial supervision proceedings, these may further be divided into two distinct stages: retrial review and retrial adjudication. The primary task of retrial review is, pursuant to the retrial review procedure, to examine whether a retrial application satisfies the statutory grounds for retrial and to decide whether to initiate retrial; the principal function of retrial adjudication is, under the retrial adjudication procedure, to hear cases where a retrial has been ordered, determine whether the final judgment indeed contains errors, and render a retrial judgment in accordance with the law. Once a retrial judgment has been rendered and duly served to become effective, the retrial adjudication procedure comes to an end. When a court hears a case remanded for retrial following a retrial, such proceedings take place only after all prior final judgments in that case have been entirely set aside, thereby restoring the parties’ litigation to the status quo ante—the situation prevailing before the original first-instance judgment—and constituting a fresh examination by the first-instance court of the dispute between the parties. In the present case, the plaintiff’s earlier action was reviewed on retrial by the Supreme People’s Court and subsequently re‑examined by the Jiangxi Provincial Higher People’s Court, which ruled to overturn the original first-instance judgment and remanded the matter to the first-instance court for retrial. At this point, the retrial adjudication procedure should be deemed concluded, and the first-instance proceedings are to be recommenced.

This Court has previously issued the “Reply of the Supreme People’s Court on Whether Parties to Cases Remanded for Retrial After a Re‑trial Has Set Aside the First- and Second‑Instance Judgments Have the Right to Apply for a Further Re‑trial” [No. 118, 2016], which clearly states: “Where, following a re‑trial, the case is remanded for retrial and a final judgment is rendered, any party dissatisfied with that judgment may, in accordance with Article 199 of the Civil Procedure Law, apply for a further re‑trial.” Although the specific issue addressed in that reply differs from the present case, its underlying premise is that a case remanded for retrial after a re‑trial no longer constitutes a continuation of the re‑trial proceedings; such a remanded case is no longer a re‑trial case, and the judgment rendered is likewise not a re‑trial judgment. Accordingly, in the present case, a matter that has been remanded for retrial following a re‑trial and then re‑filed should be treated as a new first‑instance case, with the parties’ procedural rights and obligations determined in accordance with the relevant provisions governing first‑instance proceedings. Where the plaintiff withdraws the action during the retrial period and subsequently files another suit, such a claim shall be accepted pursuant to Article 214, Paragraph 1, of the Interpretations of the Civil Procedure Law. At the same time, given the distinctions between cases remanded for retrial after a re‑trial and newly instituted first‑instance cases, in order to prevent abuse of litigation rights, reduce the burden on litigants, and avoid the waste of judicial resources, Articles 252 of the Interpretations of the Civil Procedure Law and Article 8 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Strict Application, in Accordance with the Law, of Orders for Re‑trials and Remands for Retrials in the Trial‑Supervision Procedure impose certain restrictions on the parties’ procedural rights after remand for retrial; however, these limitations do not affect the fundamental determination that, under Article 214, Paragraph 1, of the Interpretations of the Civil Procedure Law, the present case should be accepted.

Case No.: (2018) Supreme People’s Court Min Zai No. 440

09. Where a party seeks a retrial and a reversal of the judgment on the ground that the people’s court failed to clarify the right to raise the defense of limitation, such a request shall not be granted.

Opinion Analysis:

Right of defense based on the statute of limitations It is a type of defense right enjoyed by the parties in accordance with the law. If a party fails to exercise this right, the judge may not, during the adjudication of the case, proactively invoke the statutory provisions on the limitation period to render a judgment, nor may the judge provide clarification on the relevant issues during the proceedings. A party’s application for retrial seeking a reversal of the judgment on the ground that the people’s court failed to clarify the defense of limitation shall not be upheld. Similarly, if a party invokes the defense of limitation during the second-instance or retrial proceedings, the people’s court should likewise reject such an invocation.

Source of the view: Compiled by the First Civil Adjudication Division of the Supreme People’s Court, “Civil Judgment Guidance and Reference” (Volume 26).

10. If, during the retrial proceedings, it is discovered that the parties have already reached and fully performed an enforcement settlement agreement, the court shall rule to dismiss the party’s application for retrial.

Opinion Analysis:

If, during the case‑filing review stage, the people’s court fails to discover that the parties have already reached and fully performed an enforcement settlement agreement, but this fact is subsequently ascertained upon substantive review in the retrial proceedings, the court shall, in accordance with Articles 186 and 157 of the Civil Procedure Law of the People’s Republic of China, as well as Article 186 of the “Opinions on Several Issues Concerning the Application of the Civil Procedure Law of the People’s Republic of China” and Paragraph 3 of Article 25 of the “Interpretation on Several Issues Concerning the Trial Supervision Procedure under the Civil Procedure Law of the People’s Republic of China,” rule to dismiss the party’s application for retrial.

Source of the view: Compiled by the First Civil Adjudication Division of the Supreme People’s Court, “Civil Judgment Guidance and Reference” (Issue No. 44).

11. Does the assignee of a creditor’s right, as conofficeed by an effective judgment, enjoy the right to apply for a retrial of that judgment?

Opinion Analysis:

The No. 1 Civil Division of the Supreme People’s Court holds that, in accordance with the law, the parties entitled to file a petition for retrial of an effective judgment are the original parties to the case, their successors in rights and obligations, and legally recognized third parties. The assignee of a creditor’s right conofficeed by an effective judgment is not one of the original parties and therefore does not qualify as a proper petitioner for retrial.

Source of the view: Compiled by the First Civil Adjudication Division of the Supreme People’s Court, “Civil Judgment Guidance and Reference” (Issue No. 45).

12. In cases that have already been reviewed by the people’s court, if the respondent files a separate application for retrial during the retrial proceedings, should the people’s court hear such application together with the original case?

Opinion Analysis:

Where, upon the People’s Court’s decision to grant a retrial in response to a retrial application filed by one party, the respondent also files a retrial application during the retrial proceedings and such application is within the two-year time limit for filing a retrial application, the Court shall hear both applications together.

Source of the view: Compiled by the First Civil Adjudication Division of the Supreme People’s Court, “Civil Judgment Guidance and Reference” (Issue No. 45).

13. Judicial response to objections raised by third parties who are not parties to the case, challenging the content of an effective mediation agreement on the grounds of malicious collusion during the adjudication of another case.

Opinion Analysis:

If, during the course of litigation, a party challenges a final mediation agreement—of which it is not a party—on the ground of malicious collusion, the people’s court may not re‑examine the content of that mediation agreement in the present case; instead, it may advise the challenging party to file a separate application for retrial of the mediation agreement.

Source of the view: Compiled by the First Civil Adjudication Division of the Supreme People’s Court, “Civil Judgment Guidance and Reference” (Issue No. 47).

14. The scope of review by the people’s courts in cases where a retrial applicant files a petition for retrial challenging a ruling treating the appeal as having been voluntarily withdrawn.

Opinion Analysis:

Where a retrial applicant, in the course of filing a retrial application, raises both grounds of dissatisfaction with the second-instance court’s ruling treating the case as having been withdrawn by operation of law and grounds of dissatisfaction with the substantive judgment rendered by the first-instance court, the people’s court, in accordance with Article 200 of the Civil Procedure Law, shall review only the grounds challenging the second-instance court’s ruling on automatic withdrawal. As for the applicant’s grounds of objection to the first-instance judgment, the people’s court shall not conduct such review. With respect to the disposition of the first-instance judgment, the parties may, pursuant to the relevant provisions of the Civil Procedure Law, pursue alternative avenues of redress.

Source of the view: Compiled by the First Civil Adjudication Division of the Supreme People’s Court, “Civil Judgment Guidance and Reference” (Issue No. 60).

15. People’s courts may not submit to a higher people’s court for transfer and trial any retrial application case that has already been lawfully filed and reviewed.

Opinion Analysis:

Once the second-instance judgment has become final, and the party concerned has already filed a petition for retrial with the second-instance court, which has duly accepted and is reviewing that petition, the party may no longer submit a further petition for retrial to the higher court of the second-instance court. Likewise, the second-instance court may not refer the case to its superior court for retrial review. With respect to any request by the second-instance court to transfer the case, the higher court shall not accept it for review; if such a request has already been accepted for review, the higher court shall issue an order terminating the examination of the party’s retrial application.

Source of the view: Compiled by the First Civil Adjudication Division of the Supreme People’s Court, “Civil Judgment Guidance and Reference” (Issue No. 64).

16. A judgment rendered after a retrial or an appeal of a first-instance judgment that has already become final is deemed a retrial judgment.

Opinion Analysis:

A judgment that has become final in the first instance, upon being subject to retrial or appeal, constitutes a retrial judgment as stipulated in Article 209, Paragraph 1, Item 3 of the Civil Procedure Law. If a party disagrees with such a judgment, they may not file a request for retrial with the people’s court; instead, they must, in accordance with the law, apply to the procuratorial organ for prosecutorial supervision.

Where, upon review, the procuratorial organ lodges a protest with the people’s court and such protest complies with the provisions of law, the people’s court shall accept the case.

Source of the view: Compiled by the First Civil Adjudication Division of the Supreme People’s Court, “Civil Judgment Guidance and Reference” (Issue No. 68).

17. Restrictions on the Right to File a Retrial Application by a Party Who Fails to Appeal Without Just Cause (Minutes of the 13th Judges’ Conference of the Second Civil Adjudication Division of the Supreme People’s Court)

[Legal Issue]:

How should a party’s application for retrial be handled when the party fails to file an appeal without justifiable grounds?

[Opinion of the Judges’ Conference]:

The two-instance final adjudication system is a fundamental principle of civil litigation in China. If a party believes that the first-instance ruling is erroneous, they must file an appeal and exercise their procedural rights through the second-instance proceedings.

The retrial procedure is a special remedy; in general, parties who have failed to file an appeal without justifiable grounds should not be afforded any additional special relief. Accordingly, the people’s court should refuse to accept their application for retrial, and if such a circumstance is discovered after acceptance, the court shall issue a ruling dismissing the retrial application.

I. The Supreme People’s Court holds that Article 164, Paragraph 1 of the Civil Procedure Law of the People’s Republic of China provides: “Where a party is dissatisfied with the first-instance judgment rendered by a local people’s court, such party shall have the right to file an appeal with the next higher people’s court within fifteen days from the date of service of the judgment.” Article 168 stipulates: “The people’s court of second instance shall review the facts and the application of law relevant to the appeal.” In accordance with these statutory provisions, the two-instance final adjudication system constitutes the fundamental principle of civil litigation in China. If a party considers the first-instance judgment erroneous, it must file an appeal and exercise its procedural rights through the second-instance proceedings. In other words, parties should first avail themselves of the standard remedies provided under the tiered structure of civil litigation, seeking redress through the first- and second-instance procedures. The retrial procedure, by contrast, is a special remedy granted to parties to address potentially significant errors in judgments that have already become effective. Only after exhausting all ordinary avenues of relief may a party, if it still believes that the final judgment contains errors, apply to the people’s court for a retrial. As for those who, without justifiable reasons, fail to file an appeal and whose rights and obligations remain unchanged by the second-instance judgment, they generally should not be afforded any additional special remedies; otherwise, this would effectively encourage or condone unscrupulous parties to abuse the retrial procedure, thereby transforming what was intended as a special mechanism into an ordinary one. Such an approach not only amounts to an abuse of procedural rights and a waste of judicial resources but also contravenes the basic principles underlying the two-instance final adjudication system. In the present case, the Hainan Provincial Intermediate People’s Court No. 2 rendered Civil Judgment No. 2 of 2015 (Hainan No. 2 Zhong Min Er Chong Zi), ordering Zhuangyuan Company and Huanuo Company to pay loan interest to the Jinmao Branch of the Agricultural Bank of China. Zhuangyuan Company did not file an appeal; accordingly, it should ordinarily be deemed to have accepted the outcome of the first-instance judgment. Under such circumstances, the Hainan Provincial Higher People’s Court, in conducting the second-instance review, limited itself to examining the appeal filed by the Jinmao Branch of the Agricultural Bank of China and rendered a corresponding judgment, which is consistent with Article 323 of the Interpretations of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China, which provides: “The people’s court of second instance shall conduct its review solely on the basis of the parties’ appellate claims. If no such claims are raised, the court shall not proceed with the review, except where the first-instance judgment violates mandatory legal provisions or infringes upon national interests, public interests, or the legitimate rights and interests of others.” The retrial request now submitted by Zhuangyuan Company, alleging that the first-instance judgment has harmed its legitimate rights and interests, is clearly inconsistent with its conduct during both the first- and second-instance proceedings, when it exercised its power of disposition. Moreover, the second-instance judgment dismissed the appeal filed by the Jinmao Branch of the Agricultural Bank of China and upheld the original judgment, meaning that the second-instance ruling did not alter the determination of Zhuangyuan Company’s rights and obligations made in the first instance. Accordingly, this Court declines, in accordance with the law, to examine the grounds for retrial advanced by Zhuangyuan Company.

Case No.: (2016) Supreme People’s Court Min Shen No. 2505

II. After review, the Supreme People’s Court finds that, in light of the grounds for retrial submitted by Wang Qian, this Court shall examine whether Wang Qian’s application for retrial should be granted.

Article 164, Paragraph 1 of the Civil Procedure Law of the People’s Republic of China provides: “A party who is dissatisfied with the first-instance judgment of a local people’s court has the right to file an appeal with the next higher people’s court within fifteen days from the date of service of the judgment.” Article 168 stipulates: “The people’s court of second instance shall review the facts and the application of law relevant to the appeal.” In accordance with these statutory provisions, the two-instance final adjudication system constitutes the fundamental principle of civil litigation in China. Where a party considers that the first-instance judgment is erroneous, it must file an appeal and exercise its procedural rights through the second-instance proceedings. In other words, parties should first avail themselves of the ordinary remedies provided under the hierarchical structure of civil litigation, seeking redress through the first- and second-instance procedures. The retrial procedure, by contrast, is a special remedy granted to parties to address potentially significant errors in judgments that have already become final; only when all ordinary avenues of relief have been exhausted and the party still maintains that the final judgment is flawed may it apply to the people’s court for a retrial. As for a party that prevailed or partially prevailed at first instance but did not file an appeal, whose second-instance judgment afofficeed the original ruling, and who explicitly stated during the second-instance proceedings that the first-instance judgment was correct and should be upheld, such a party lacks standing to seek retrial; accordingly, its request for retrial should not be granted. Otherwise, this would effectively encourage or condone unscrupulous parties to abuse the retrial procedure, thereby transforming what is intended as a special remedy into an ordinary one. Such an approach not only constitutes an abuse of procedural rights and a waste of judicial resources, but also contravenes the basic principles underlying the two-instance final adjudication system. In the present case, Wang Qian has now filed a request for retrial, alleging that both the first- and second-instance judgments omitted material facts and infringed upon his legitimate rights and interests. This position clearly contradicts his prior conduct: after the first-instance judgment, he failed to file an appeal, and during the second-instance proceedings he expressly sought to uphold the first-instance decision. Moreover, the Ningxia Hui Autonomous Region Higher People’s Court, in its Civil Judgment No. (2016) Ning Min Zhong 278, dismissed Lu Rongfang’s appeal and afofficeed the original judgment, without altering the determination regarding Wang Qian’s rights set forth in the first-instance judgment. Accordingly, Wang Qian’s retrial application lacks standing, and this Court declines to grant it.

Case No.: (2017) Supreme People’s Court Min Shen No. 2483

18. The validity of a settlement agreement reached by the parties during the review of a retrial application, in which they expressly declare that they do not waive their right to apply for retrial — Dispute over a sales contract between Guo’an Company and Shunhe Materials Station

Key points of the ruling:

Where the settlement agreement reflects a genuine expression of intent and has been fully performed, any declaration by the parties in the settlement agreement that they do not waive their right to apply for a retrial is valid and does not give rise to the legal consequence of terminating the retrial review proceedings.

This Court holds that, in accordance with Article 402, Paragraph 3 of the Interpretations of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China, during the review of a retrial application, if the parties have reached a settlement agreement and have fully performed it, the review shall be terminated, unless the parties have expressly stated in the settlement agreement that they do not waive their right to apply for retrial. In the present case, Guo’an Company and Shunhe Materials Station entered into an Execution Settlement Agreement on October 25, 2017. Clause 3 thereof provides: “This Agreement constitutes a settlement reached by both parties regarding the debt fact conofficeed in Civil Judgment No. (2017) Yu Min Zhong No. 216. Upon Party B (Guo’an Company) fully performing its obligations under this Agreement, the creditor–debtor relationship between the two parties concerning this case shall be deemed settled, and neither party shall pursue any further claims against the other.” The terms of this agreement reflect the true intentions of the parties and have been fully performed; moreover, Guo’an Company did not declare in the agreement that it waived its right to seek retrial. Accordingly, the retrial review proceedings in this case should be terminated.

Case No.: (2017) Supreme People’s Court Min Shen No. 4578

19. In cases where the higher court, upon retrial, overturns the original judgment and remands the case for a new trial, may the parties add or amend their claims during the retrial proceedings?
 

Answer: In cases where a retrial ruling revokes the original judgment or order and remands the case for retrial, if a party applies to amend or add claims, or files a counterclaim, and such applications meet the requirements set forth in… Judicial Interpretation of the Civil Procedure Law Where any of the circumstances set forth in Article 252 applies, the people’s court shall grant permission:

(1) The original trial failed to properly summon the absent party and rendered a default judgment, thereby impairing the parties’ ability to exercise their procedural rights;

(2) Where a new party to the litigation is added;

(3) Where the subject matter of the litigation is lost or undergoes a change rendering the original claim unenforceable;

(4) Where the claims for relief sought by a party through amendment or addition, or any counterclaims raised by that party, cannot be resolved through a separate action.

Source of the viewpoint: “Rules of Judgment of the Sixth Circuit Court of the Supreme People’s Court,” 1st edition, November 2022, People’s Court Press.

20. If the respondent in a retrial proceeding fails to raise an objection on the ground that the statutory time limit for filing a retrial has expired, may the court, on its own initiative, examine whether the party’s application for retrial is indeed time-barred? — Jiangsu Nantong Sixth Construction Group Co., Ltd. v. Hengshui Hongtai Real Estate Development Co., Ltd., Dispute over a Construction Contract

Summary of the ruling:

The court shall, on its own initiative, review whether the parties’ application for retrial has exceeded the statutory time limit for retrial.

Article 205 of the Civil Procedure Law of the People’s Republic of China provides that a party seeking a retrial shall file the application within six months after the judgment or ruling has become legally effective; however, where any of the circumstances set forth in Items 1, 3, 12, and 13 of Article 200 of this Law applies, the application must be filed within six months from the date when the party knew or ought to have known of such circumstances. This article governs the time limit for filing a retrial application. The statutory time limit serves two purposes: first, it safeguards the res judicata effect of final judgments, preventing the legal rights and obligations established by such judgments from remaining indefinitely subject to the uncertainty of potential retrials, thereby ensuring social stability; second, it encourages parties to exercise their right to seek retrial without undue delay, thus protecting the legitimate reliance interests of the opposing party in the stability of the final judgment. Accordingly, where a party seeks retrial on grounds other than those specified in Items 1, 3, 12, and 13 of Article 200 of the Civil Procedure Law, the application must be filed within six months after the judgment or ruling has become legally effective. Moreover, if, after six months from the entry into force of a judgment or ruling, a party simultaneously files a retrial application based on any of the grounds listed in Items 1, 3, 12, or 13 of Article 200 while also raising additional grounds for retrial, the people’s court shall not review the latter.

Source of the view: Gazette of the Supreme People’s Court, Issue 10, 2019.

Case No.: (2018) Supreme People’s Court Min Shen No. 6278

21. Construction Contract Dispute of Jiangsu Jinxia Real Estate Co., Ltd.

Summary of the ruling:

The Supreme People’s Court holds that, in accordance with Article 205 of the Civil Procedure Law of the People’s Republic of China, a party seeking a retrial must file the application within six months after the judgment or ruling has become legally effective; where any of the circumstances set forth in Items 1, 3, 12, and 13 of Article 200 of this Law applies, the application must be filed within six months from the date when the party knew or ought to have known of such circumstances. In the present case, the second-instance judgment was rendered on September 6, 2016, and duly served in accordance with the law; by the time the applicant filed the retrial application on December 12, 2019, the statutory six-month period for filing such an application had long since expired. If Jinxia Company seeks a retrial on the ground that new evidence is sufficient to overturn the original judgment or ruling, it must further be examined whether the application was filed within six months from the date when it knew or ought to have known of such evidence.

Case No.: (2020) Supreme People’s Court Min Shen No. 4706

22. In general, courts may not directly apply the legal principle of “fairness” as a rule of adjudication—dispute over a service contract between the retrial applicant Huang Mourong and Shanghai Haicheng Resources (Group) Co., Ltd., and the respondent Weifu International Co., Ltd., with Shanghai Panshi Investment Co., Ltd. as a third party in the first instance.

Summary of the ruling:

I. Joint and several liability is a statutory form of liability that arises either by operation of law or by agreement between the parties. Because it imposes relatively stringent joint obligations on the liable parties, placing them in a comparatively disadvantaged position, its application must adhere to a strict statutory principle: it may not be arbitrarily characterized as joint and several liability through the exercise of discretionary power; rather, such liability may be imposed only where there is an explicit statutory provision or contractual stipulation.

II. In civil adjudication, courts may apply the fundamental principles and underlying spirit of the law to render judgments only when the law does not provide specific provisions, so as to achieve justice in individual cases. Under normal circumstances, courts may not directly invoke the “principle of fairness,” a basic legal principle, as a rule of adjudication; otherwise, such an approach would amount to an evasion of general statutory provisions and would contravene the fundamental rules governing the application of law.

Case No.: (2022) Supreme People’s Court Min Zai No. 91

23. When the “new rules” are applied to revise a final judgment on “joint marital debt” into a judgment of “unilateral marital debt,” two prerequisite conditions must be met—namely, the applicants for retrial, Lin and Chen Yeye, in their civil lending dispute with the respondent, Fujian Chunqiu Cultural Development Co., Ltd.

Summary of the ruling:

Article 2 of the Supreme People’s Court’s “Notice on Relevant Work in Handling Cases Involving Marital Debt Disputes” (Fa Ming Chuan [2018] No. 71) stipulates: “For cases that have already undergone final adjudication, when conducting a review, strict adherence must be maintained to the criteria of unclear findings of fact, erroneous application of the law, or manifestly unjust outcomes. For example, where one spouse colludes maliciously with a creditor to harm the other, resulting in the latter unwittingly bearing an enormous debt without any knowledge, such cases shall be rectified in accordance with the law. When revising the judgment in a retrial, preference should be given to citing relevant provisions of the Marriage Law, such as Articles 17 and 41.” Accordingly, it is evident that, in applying the “new rules” to overturn a final judgment recognizing “joint marital debt” and reclassifying it as “individual marital debt,” two prerequisite conditions must be met: first, the non‑debtor spouse must have incurred a substantial debt; and second, the non‑debtor spouse must have been unaware of the debt and could not reasonably have been expected to know about it.

Case No.: (2018) Supreme People’s Court Min Zai No. 20

24. Where the victim’s losses may be compensated within the criminal proceedings, any subsequent civil action brought by the victim as plaintiff shall be dismissed—Re-trial applicant Sichuan Tianfu Bank Co., Ltd., Chengdu Jinjiang Branch, v. Respondents Sichuan Qianye Environmental Protection Industry Development Co., Ltd., Sichuan Qianye Quanfeng Investment Group Co., Ltd., Chengdu Longshuang Construction Co., Ltd., Peng Mouguang, and Huang Mou, in a dispute over a loan contract.

Summary of the ruling:

The criminal judgment rendered by the court found that the defendant’s act of fraudulently obtaining bank loans constituted the crime of obtaining loans by deception, and ordered that the illegally obtained loans be recovered and returned to the victimized bank; any shortfall shall be compensated. Accordingly, as the victimized entity identified in the criminal case, the bank may have its losses satisfied within the relevant proceedings of that case. Under these circumstances, when the bank subsequently brought a civil action, the court, pursuant to Article 11 of the “Provisions of the Supreme People’s Court on Several Issues Concerning the Handling of Suspected Economic Crimes in the Trial of Economic Dispute Cases,” ruled to dismiss the lawsuit, which does not contravene the law. Therefore, the bank’s application for retrial, alleging errors in the court’s application of the law and omissions in the claims, lacks merit and should be rejected.

Case No.: (2021) Supreme People’s Court Min Shen No. 1478

25. If a party’s agent requests a postponement of the hearing due to a scheduling conflict with another case, and the court refuses the request and proceeds with a default judgment, does this constitute a procedural violation? — Dispute over a lease contract between Junshen Commercial Management (Shanghai) Co., Ltd. and Daqing Huajun Real Estate Development Co., Ltd.

Summary of the ruling:

Pursuant to Article 146 of the former Civil Procedure Law (now Article 149 of the current Civil Procedure Law), the court has discretionary authority to decide whether to adjourn a hearing; in cases meeting the statutory requirements, it “may” grant an adjournment or “may” decline to do so. If the hearing date specified in the court’s summons conflicts with the scheduled hearing in another case involving the party’s appointed litigation agent, this does not necessarily preclude the party from participating in the present proceedings; the party may appoint or replace their agent to appear and take part in the litigation. Should the court fail to respond within three days prior to the hearing to a party’s request for an adjournment, such silence shall be construed as a refusal to grant the adjournment. In that event, the party is required to appear on time; if the party fails to attend, the court’s default judgment complies with the provisions of the Civil Procedure Law and does not constitute a procedural violation.

Case No.: (2018) Supreme People’s Court Min Shen No. 5398

26. Unless expressly provided otherwise, when the nature of the rights and obligations between the parties is difficult to determine, the general principle of legal application is to interpret such provisions in favor of the debtor—Dispute over a loan contract between the retrial applicant, Yunnan Xingfu Expressway Management Co., Ltd., and the respondent, Shaanxi Chengchuang Construction Co., Ltd., as well as the first-instance defendant, Shandong Tongda Road & Bridge Engineering Co., Ltd.

Summary of the ruling:

I. From the perspective of establishing the rights and obligations between the parties, a joint obligation arises either on the basis of contractual agreement, statutory provisions, or conduct of the parties that may be inferred. Where there are two or more parties on one side, a joint obligation naturally comes into being.

II. From the perspective of the nature of rights and obligations, in relationships involving rights and obligations of different natures, the parties may exercise their rights and perform their obligations only in accordance with the contract or statutory provisions. The claims available to the parties and the defenses they may raise are thus constrained by the nature of the legal relationship. As co‑debtors under a contract, the parties may invoke defenses against the creditor solely in their capacity as debtors, pursuant to the contractual terms or applicable laws. By contrast, owing to the accessory nature of guarantee obligations, a guarantor may assert both the debtor’s defenses against the creditor and those arising from its own status as guarantor, as provided by law or agreed upon in the contract. When the nature of the rights and obligations between the parties is difficult to determine, unless expressly provided otherwise, the general principle of legal application is to interpret such provisions in favor of the debtor.

Case No.: (2022) Supreme People’s Court Min Zai No. 259

27. Where a party who did not appeal the first-instance judgment lacks standing to seek retrial, the people’s court should not grant its request for retrial—this pertains to the case of Guo Ying, the applicant for retrial, and the respondents Chen, Hu Shun, Shangnan County Shunyi Printing Co., Ltd., as well as the second-instance appellant Shaanxi JianGong First Construction Group Co., Ltd. and the first-instance defendant Shaanxi Hongrun Real Estate Development Co., Ltd., in a dispute concerning private lending and guarantee contracts.

Summary of the ruling:

Article 164, Paragraph 1 of the Civil Procedure Law of the People’s Republic of China provides: “A party who is dissatisfied with the first-instance judgment of a local people’s court shall have the right to file an appeal with the next higher people’s court within fifteen days from the date of service of the judgment.” Article 168 stipulates: “The people’s court of second instance shall review the facts and the application of law relevant to the appeal.” In accordance with these statutory provisions, the two-instance final adjudication system constitutes the fundamental structure of civil litigation in China. Where a party considers that the first-instance judgment is erroneous, it must file an appeal and exercise its procedural rights through the second-instance proceedings. In other words, the party should first avail itself of the standard remedies provided under the tiered system of civil litigation, seeking redress through the first- and second-instance procedures. Only after exhausting all ordinary avenues of relief, if the party still believes that the final judgment contains errors, may it apply to the people’s court for a retrial. As for a party that prevailed or partially prevailed in the first instance but did not file an appeal, whose second-instance judgment afofficeed the original ruling, and who explicitly stated during the second-instance proceedings that the first-instance judgment was correct and should be upheld, such a party lacks standing to seek retrial; therefore, its request for retrial should not be granted. Accordingly, this Court should decline to review Guo Ying’s application for retrial. However, in order to ascertain the facts and fully safeguard the lawful rights and interests of the parties, this Court examined the evidence submitted by Guo Ying. Upon review, it was found that the audio recording of her purported conversation with cashier Wang Hongmei and the witness testimony provided by driver Wang Sibo were both produced on February 2, 2018, and March 18, 2018, respectively. These materials were not evidence that had remained undiscovered during the prior litigation proceedings and do not fall within the category of “new evidence” as defined in Article 200 of the Civil Procedure Law of the People’s Republic of China.

Case No.: (2019) Supreme People’s Court Min Shen No. 2256

28. Where the applicant for retrial failed to raise a clear position in either the first or second instance that the disputed debt did not constitute joint marital debt, but instead raised such an argument at the retrial stage, the court will not uphold it—Dispute over private lending between applicants Hou and Lin and respondent Shi.

Summary of the ruling:

During both the first-instance proceedings and the second-instance appeal, the applicant for retrial raised objections solely to whether a loan relationship existed between the creditor and the debtor, without expressing any disagreement as to whether the loan constituted a joint debt of the spouses. In particular, during the second-instance review, the applicant did not challenge the first-instance court’s determination that the debt was a joint obligation of the spouses, nor did it advance any specific grounds or requests in this regard. Accordingly, the second-instance court held that upholding the first-instance judgment—finding that the debt at issue was a joint marital debt to be repaid jointly—was consistent with the factual circumstances of this case.

Case No.: (2019) Supreme People’s Court Min Shen No. 5567

29. The applicant for retrial lacks a retrial interest in the litigation rights of other parties—Case concerning a dispute over a financial loan contract between the applicant for retrial, Jinjiang Lijing Furniture Co., Ltd. of Fujian Province, and the respondents, the Qingyang Branch of Fujian Jinjiang Rural Commercial Bank Co., Ltd., as well as the original defendants, Zhuang Mouyang, Li Mouhong, and Zhuang Moulian.

Summary of the ruling:

I. The applicant for retrial alleges that the original court committed procedural violations in serving process on other parties and in rendering default judgments; however, the applicant for retrial is not the same civil entity as those other parties, and no such parties have raised any objections. The applicant’s litigation rights have been fully safeguarded, and therefore the applicant lacks a legitimate interest in challenging the litigation rights of those other parties.

II. The applicant for retrial contends that the original court should not have included interest accrued after the mortgaged property was subject to conservatory measures within the scope of priority repayment. However, the mortgaged property is real estate registered in the name of another party, and its ownership is unrelated to the applicant for retrial. Moreover, the original court’s determination that such post‑conservatory‑measure interest falls within the scope of the mortgage does not prejudice the applicant’s rights; accordingly, the applicant lacks standing to seek retrial on this ground. The applicant’s request for retrial is therefore unrelated to its own interests, and the original court’s findings have not infringed upon either its procedural or substantive rights.

Case No.: (2020) Supreme People’s Court Min Shen No. 1898

30. Does the ground for retrial stipulated in Article 207, Paragraph 11 of the Civil Procedure Law—“omission or exceeding the scope of the claims”—include the appellate claims raised in the second instance? — Dispute over a financial loan contract between the applicant for retrial, the Qujing Branch of Bank of China Co., Ltd., and the respondents, Qujing Lanhui Trading Co., Ltd., Ma Mouxiang, Chen Moupin, Ren Moulin, et al.

Summary of the ruling:

The grounds for retrial stipulated in Article 207, Paragraph 11 of the Civil Procedure Law of the People’s Republic of China provide that a case shall be retried when “a claim has been omitted or exceeded.” The term “claim” in this provision encompasses both the claims raised in the first instance and those set forth in the appeal filed in the second instance. In the first-instance judgment, the court held that the plaintiff was entitled to a mortgage right over the property at issue and, within the limit of the maximum amount of the secured obligation, enjoyed priority in receiving payment from the proceeds of the valuation, auction, or sale of the mortgaged property. The plaintiff appealed, seeking a reversal of the judgment to grant it priority in receiving payment from the entire proceeds of such valuation, auction, or sale—i.e., requesting an expansion of the scope of the secured claim. The second-instance court found that this particular appellate request was unfounded; however, it did not afoffice the corresponding portion of the first-instance judgment, resulting in a clear inconsistency between the reasoning and the operative part of the second-instance decision. This constitutes an omission of the appellant’s claim during the second-instance proceedings and thus warrants retrial.

Case No.: (2022) Supreme People’s Court Min Shen No. 228

31. In cases involving compensation for personal injury that are remanded by the second-instance court for retrial, the death compensation shall still be calculated according to the compensation standards published at the time of the initial lawsuit—Li Mouming, Li Mouna, and Li Mouyang v. a certain hospital in Changzhi City, Shanxi Province, regarding a dispute over damages arising from a medical accident.

Summary of the ruling:

The Supreme People’s Court, in its retrial, held that Li Ming and others, during the retrial proceedings, submitted requests to increase both the compensation for mental distress and the death compensation originally sought at first instance. With respect to the claim for an increased death compensation, Li Ming argued that, since the case had been remanded for retrial on appeal, the applicable standard for death compensation should be determined as of the date of the remand. However, this argument was rejected. The reasoning is that, pursuant to Article 29, Paragraph 1 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Law in Adjudicating Personal Injury Compensation Cases, “death compensation shall be calculated based on the per capita disposable income of urban residents or the per capita net income of rural residents in the preceding year at the location of the court hearing the case, multiplied by twenty years.” Under this provision, the term “preceding year” refers to the year immediately prior to the time when the court of first instance accepted the case after the plaintiff filed suit; it does not extend to subsequent instances of remand for retrial.

Case No.: (2016) Supreme People’s Court Min Zai No. 313