[Direct answer]In the Beijing area, the two procedures target completely different stages of litigation and cannot be mixed. Death penalty review is a special procedure in the criminal trial process, which targets judgments that have not yet taken effect. According to the provisions of the Criminal Procedure Law of the People's Republic of China (amended in 2018) on the death penalty review procedure, first-instance cases of death penalty sentenced by intermediate people's courts, if the defendant does not appeal, shall be submitted to the higher people's courts for review and then to the Supreme People's Court for approval; first-instance cases of death penalty sentenced by higher people's courts, if the defendant does not appeal, and second-instance cases of death penalty, shall all be submitted to the Supreme People's Court for approval. When the Supreme People's Court reviews death penalty cases, it shall interrogate the defendant, and if the defense lawyer requests it, it shall hear the defense lawyer's opinions and may make a decision of approval or non-approval according to law. Criminal appeals and retrials belong to the judicial supervision procedure, which targets judgments and rulings that have already taken effect. The parties and their legal representatives or close relatives may file appeals. If the people's courts or the people's procuratorates review and find that they meet the statutory circumstances, they will initiate a retrial. In short, death penalty review deals with death penalty judgments that have not yet taken effect, and the result is usually approval or non-approval; appeals and retrials deal with judgments that have already taken effect, and the result may be upheld or overturned.Criminal defense and criminal case filingYou can view similar questions in this column.

I. Problem Background and Typical Scenarios

When family members consult on this issue, it usually arises in several situations: First, if the first-instance court has sentenced the defendant to death, and the second-instance court upheld the sentence after the defendant appealed, the family members may not be clear about whether the next procedure is to approve the sentence or continue the trial. Second, if the death sentence has been approved and executed, and the family members believe the judgment is wrong, they may ask whether they can still change the outcome through appeals. Third, if the defendant hopes to submit new mitigating circumstances or evidence during the review stage, but does not know the submission path. Fourth, in cases of joint crimes, some defendants are sentenced to death while others are sentenced to imprisonment, and the family members are confused about the differences between the two types of procedures. Fifth, if the victim's side believes the sentencing is too lenient, they hope to push the procuratorial organ to file an appeal. When handling such cases in Beijing, the key is to accurately identify the procedural node of the case to avoid filing appeals during the review stage or claiming rights through the review procedure after the sentence has taken effect. For the victim's side's claims for compensation and subsequent enforcement, reference can be made simultaneously.Creditor's rights and debts, and enforcement casesColumn.

II. Key points of contention

First, the difference in applicable objects: The death penalty review targets death penalty judgments that have not yet taken effect, while the appeal for retrial targets judgments that have already taken effect, with clear boundaries between the two. Second, the initiating subject and method: The review is initiated ex officio and submitted to the higher court for approval, while the appeal requires the party concerned to file an application and undergo review. Third, the focus of review: The review emphasizes comprehensive review of fact determination, evidence admissibility, legal application, and procedural legality, while the appeal focuses on whether it meets the statutory circumstances for retrial. Fourth, the exercise of the right to defense: During the review stage, the defense lawyer's requests should be heard; during the appeal stage, the lawyer can be entrusted to file the application and submit materials on behalf of the party concerned. Fifth, the form of legal documents and consequences: The review usually results in a ruling approving or disapproving the review, while the retrial may result in a new judgment, remand for rehearing, or maintaining the original judgment. Sixth, time points and deadlines: The review has a statutory review period, while the appeal review does not have strict deadlines. Seventh, the connection between the two procedures: In cases where the review disapproves the review and remands the case for rehearing, the case may still enter a new level of review and appeal. The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

III. Professional analysis by Henglue Lawyers

Accurately distinguishing between the two types of procedures directly determines the focus and direction of the defense work. Based on the practical experience of lawyers in our firm, at the stage of death penalty review, the work focus usually includes three aspects: first, comprehensively sort out the original trial evidence and review whether there are unclear facts, unreliable or insufficient evidence, or evidence that should be excluded according to law; second, review the application of law and sentencing circumstances, with a focus on whether the statutory or discretionary mitigating circumstances such as voluntary surrender, confession, meritorious service, victim's fault, or a relatively minor role in a joint crime have not been fully evaluated; third, review the legality of the procedure, including whether the right to defense has been guaranteed and whether the procedures of challenge and cross-examination comply with regulations. Lawyers can legally request to be heard and submit written defense opinions to the review court on the above issues. At the stage of appeal and retrial, the work focus shifts to organizing reasons in accordance with the statutory circumstances of retrial, such as whether there is new evidence to prove that the facts of the original judgment are indeed erroneous, whether the evidence used to convict and sentence is indeed sufficient, whether the application of law is indeed erroneous, and whether the trial procedures are illegal and may affect a fair trial. It is also necessary to review the original trial files, fix new evidence, and draft standard appeal or retrial application documents. The common point of the two types of procedures is that they are highly dependent on evidence review and legal argumentation. The difference is that at the review stage, the defense opinions can be directly included in the review, while at the appeal stage, it is necessary to first convince the review authority that the case meets the conditions for initiation, which has a relatively higher threshold. Therefore, the family members should first confirm the current procedural stage of the case and then decide on the way to assert their rights and the focus of material preparation.

IV. Practical suggestions and legal basis

Action proposal: First, check the referee's document and the litigation process to confirm whether the case is in the first instance, second instance, review, or already effective state, so as to avoid procedural misalignment. For more information on relevant procedures, please refer to the relevant explanationsCriminal defense and criminal case filing1. The first step is to appoint a lawyer as soon as possible during the review stage and explicitly request to hear the defense lawyer's opinions, submitting written defense opinions and supplementary evidence. 2. The second step is to review the statutory and discretionary mitigating circumstances one by one, such as voluntary surrender, confession, meritorious service, the victim's fault, compensation and reconciliation, and the role in joint crimes. 3. The third step is to review the original trial case files during the appeal stage, then determine the appeal grounds based on the statutory circumstances for retrial, avoiding simply repeating the original trial claims. 4. If the victim believes the sentencing is inappropriate, they may request the People's Procuratorate to file a protest in accordance with the law. 5. Regardless of the stage of the proceedings, it is necessary to maintain complete case files, evidence, and communication records to prepare for the subsequent procedures. For matters involving the victim's compensation and enforcement, reference can be made to the relevant provisions.Creditor's rights and debts, and enforcement casesColumn. Legal basis: The provisions of the Criminal Procedure Law of the People's Republic of China (amended in 2018) on the review procedure of the death penalty and the trial supervision procedure; the provisions of the Criminal Law of the People's Republic of China on the application of the death penalty and sentencing circumstances; the specific application shall be subject to the currently effective laws and regulations and judicial rulings.

5. Henglu Law Firm's Reminder

Firstly, the review of the death penalty is a mandatory legal procedure, not an optional step, and the defense opinions during the review stage hold significant significance. Secondly, the threshold for initiating an appeal and a retrial is relatively high. It's important not to confuse the review with the appeal, as misusing the wrong procedure will waste valuable time. Thirdly, the focus of the defense during the review stage lies in a comprehensive review of the facts and evidence, especially whether the mitigating circumstances have been fully evaluated. Fourthly, the collection and fixation of new evidence should be done as early as possible. For matters involving appraisals and witness testimonies, applications should be made to obtain them in accordance with the law. Fifthly, the procedural rights of victims and defendants are different. Family members should clarify their own positions and the paths they can pursue. Sixthly, such cases are highly specialized, and it is recommended to engage lawyers with experience in handling death penalty cases as early as possible to avoid missing opportunities due to unfamiliarity with the procedures.

VI. Frequently Asked Questions

Q1: Are death penalty review and retrial the same thing?

No. The review of death sentences refers to the judgments that have been sentenced to death but have not yet taken effect, which are approved by the Supreme People's Court in accordance with the law; retrial belongs to the judicial supervision procedure, which targets judgments and rulings that have already taken legal effect.

Q2: What can lawyers do during the review stage of the death penalty case?

According to the provisions of the Criminal Procedure Law of the People's Republic of China on the review procedure for the death penalty, the Supreme People's Court shall review the death penalty cases by interrogating the defendant, and shall listen to the opinions of the defense lawyer if he/she so requests. The lawyer may submit written defense opinions and supplementary evidence.

Q3: What are the possible outcomes of the review?

There are usually two outcomes: approval or disapproval. In the case of disapproval, the Supreme People's Court will make a ruling in accordance with the law and may send the case back for retrial, after which the case will enter a new trial process.

Q4: Can you still appeal if the death penalty has already been carried out?

A complaint may be filed in accordance with the law. The close relatives of the parties concerned, etc. may file a complaint against the judgment that has taken effect, but they must meet the statutory circumstances for a retrial. Whether to initiate a retrial shall be decided by the People's Court or the People's Procuratorate after review.

Q5: Can new evidence still be submitted during the review stage?

Yes. If there is new evidence that affects the conviction and sentencing, or mitigating circumstances that have not been fully evaluated, it should be submitted through the defense lawyer in a timely manner, and the reviewing court will consider them together during the review.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Criminal defense legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In the event of a dispute, please consult a practicing lawyer in a timely manner.