[Direct answer]Criminal appeals are generally filed with the people's court of final instance that rendered the effective judgment, or with the people's procuratorate at the same level or a higher level. If the appellant believes that there are indeed errors, the procuratorial organ may file an appeal in accordance with the judicial supervision procedure. According to Article 252 of the Criminal Procedure Law, the appeal does not affect the execution of the judgment or ruling. Beijing Henglue Law FirmCriminal defense teamIt can assist in evaluating the appeal process. For more details, please refer to the following link:Beijing Henglu Law Firm.

I. Problem Background and Typical Scenarios

After the case is upheld or a judgment becomes effective after the second instance, if the parties and their legal representatives or close relatives are still not satisfied, the remedy channel is no longer an appeal, but a complaint. A complaint is a source of materials for the judicial supervision procedure and is fundamentally different from an appeal: it targets a judgment that has already taken effect and does not stop its execution, with higher thresholds for initiating a retrial. In practice, a common confusion is where to submit the complaint: submitting it to the wrong court may result in it being transferred to other courts repeatedly and delaying the review opportunity; at the same time, whether to proceed concurrently with the court and the procuratorate, or first to the court and then to the procuratorate, also directly affects efficiency. Understanding the jurisdiction level is the first step in submitting a complaint.

II. Key points of contention

  • How does the jurisdictional court determine this? In principle, appeals are reviewed and handled by the people's courts of final instance. If the wrong level is chosen, the case is likely to be transferred from one level to another, which will delay the review process.
  • Output: Whether to suspend execution: During the appeal period, the original judgment or ruling will not be suspended. This is often misunderstood by parties as meaning that they can suspend their prison sentence simply by filing an appeal.
  • The conditions for initiating a retrial are: there must be new evidence to prove that the facts of the original judgment were indeed wrong or that there were errors in the application of the law, etc. It is not enough to simply express dissatisfaction to initiate a retrial.

III. Professional analysis by Henglue Lawyers

The practical experience of Henglue Lawyers in criminal proceedings shows that the credibility of a final judgment is based on the accuracy of factual and legal findings, and the task of the appeal stage is to specifically identify the errors of the original judgment. For example, in a criminal and civil suit case of intentional homicide handled by Henglue Lawyers, the defense attempted to argue that the act of driving a car and causing one death and two injuries should be classified as the crime of endangering public safety by dangerous methods, and claimed that the defendant had surrendered himself voluntarily. The attorney, through a thorough review of the case file, refuted the defense arguments one by one with evidence such as the defendant's pre-impact verbal motives, accelerating at close range without avoiding the victim, and lying to the police about brake failure. The court ultimately ruled that the defendant committed intentional homicide and sentenced him to death. If there are still disputes about this determination after the judgment takes effect, the parties concerned can file an appeal according to the appeal procedures. Regarding jurisdiction, according to Article 449 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China, appeals shall be reviewed and handled by the people's courts of the final instance: appeals filed after the first-instance trial but not appealed or with a final judgment shall be filed with the first-instance court; appeals filed after the second-instance trial shall be filed with the second-instance court; and appeals filed with the higher-level court will usually be transferred or advised to file with the final-instance court. If the parties believe that the court's review is insufficient, they may also file an appeal with the corresponding-level people's procuratorate in accordance with Article 254 of the Criminal Procedure Law, and the procuratorial organ will review the case and decide whether to file an appeal in accordance with the trial supervision procedures. 恒略律师在刑事程序中的实践表明，生效裁判的公信力建立在事实与法律认定的准确性之上，申诉阶段的任务就是将原判错误具体化。例如，恒略律师代理的一起故意杀人案刑事附带民事诉讼中，辩方试图将驾车冲撞致一死两伤的行为辩解为以危险方法危害公共安全罪，并主张自首成立；代理律师通过完整阅卷，以撞击前言语表露动机、近距离加速未避让、报警时谎称刹车失灵等证据逐一驳斥，最终法院认定构成故意杀人罪并作出死刑判决。若该定性链条在裁判生效后仍存争议，相关方即可循申诉程序提出。就管辖而言，根据《最高人民法院关于适用〈中华人民共和国刑事诉讼法〉的解释》第四百四十九条，申诉由终审人民法院审查处理：未经二审的一审案件，向一审法院申诉；经二审的案件，向二审法院申诉；向上一级法院提出的申诉通常会被转交或告知向终审法院提出。认为法院审查不力的，还可依据《刑事诉讼法》第二百五十四条向相应层级的人民检察院提出申诉，由检察机关审查后决定是否按审判监督程序提出抗诉。

IV. Practical suggestions and legal basis

In terms of legal basis, Article 252 of the Criminal Procedure Law stipulates that parties and their legal representatives or close relatives may file appeals to the people's courts or the people's procuratorates against judgments and rulings that have taken effect, but the execution of the judgments and rulings cannot be stopped; Article 253 lists the statutory circumstances in which the court shall retry the case, including new evidence proving that the facts of the original judgment were indeed erroneous, evidence of conviction and sentencing that is inaccurate or insufficient, errors in the application of the law, and violations of statutory litigation procedures; Article 254 clearly stipulates that the higher court has the right to retry the case or order a retrial, and the Supreme People's Procuratorate has the right to file a protest against the judgments and rulings that have taken effect of courts at all levels, and the higher procuratorates have the right to file a protest against the judgments and rulings of lower courts that are indeed erroneous. Practical suggestions: The appeal statement should focus on each statutory circumstance and provide a list of new evidence; it should generally be filed within two years after the completion of the execution of the punishment; at the same time, prepare materials for both the court and the procuratorate to improve the efficiency of the review. For more procedural issues, please refer toSpecialised legal services.

5. Henglu Law Firm's Advice

This case is handled by Beijing Henglu Law Firm.Liu LiqiangAttorney (Practice Certificate No.: 11101200910454358, subject to the document issued by the judicial administrative organ). Henglue Law Firm reminds: Appeal is not a repeated appeal. What was said in the original trial materials, what was determined by the effective judgment, and where there is new evidence to refute it—clarify these three questions before writing. The success rate of the appeal is highly related to the probative force of the new evidence. Therefore, we should pay attention to preserving the newly discovered clues in daily work. Appeal does not prevent seeking other procedural remedies according to law. The courts and procuratorates can proceed in parallel without conflict, but they should all abide by procedural norms and avoid submitting repeated applications without new reasons.

Q1: Can an appeal stop the execution of the original judgment?

No. According to Article 252 of the Criminal Procedure Law, when a party and his/her legal representative or close relatives file an appeal against a judgment or ruling that has taken legal effect, the execution of the judgment or ruling cannot be stopped. In other words, during the appeal period, the original sentence shall be executed as usual. Whether to suspend the execution shall be determined by the court after the retrial is initiated. This point is often misunderstood by parties, who believe that they can suspend the execution by simply submitting appeal materials. However, this is not the case. Precisely because the appeal does not stop the execution, those who are dissatisfied with the effective judgment should fully exercise their right of appeal at the second-instance stage. The appeal is the last remedy after the judgment takes effect, and its initiation conditions and costs are higher than those of the appeal.

Q2: Should the appeal be submitted to the Court of Final Appeal or the Court of First Instance?

In principle, appeals should be submitted to the people's courts of final instance. According to Article 449 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China, appeals shall be reviewed and handled by the people's courts of final instance; where the case has undergone a second-instance trial, the people's court of final instance shall be the second-instance court, and the appeal shall be submitted to it; where the case has not been appealed or the appeal has been withdrawn after the first-instance trial, it shall generally be submitted to the people's court of first instance. If the appeal is submitted to a higher-level court, it will usually be informed or transferred to the people's court of final instance for handling, which will only prolong the processing time. Therefore, before submitting the appeal statement, it is necessary to first confirm which level of court issued the effective judgment, directly target the people's court of final instance, and submit the materials in accordance with the requirements of its appeal reception department to avoid procedural delays.

Q3: Is there a time limit for appeals?

Generally, an appeal should be filed within two years after the execution of the criminal punishment. According to relevant judicial interpretations, appeals filed more than two years after the execution of the criminal punishment will only be accepted in special circumstances such as when new evidence proves that the original judgment may be declared innocent, or when the defendant in the original trial files an appeal to the court within the prescribed time limit but the court fails to accept it. In addition, although there is no strict concept of a statute of limitations for appeals, the longer the time elapses, the greater the risk of evidence being lost, and the more difficult it is to obtain and fix new evidence. It is recommended that parties who believe that the judgment is indeed erroneous should prepare the materials for filing an appeal as soon as possible. If it is difficult to make a judgment at the moment, they can first let lawyers evaluate the probative force of the new evidence and its conformity with the statutory circumstances, and then decide whether to initiate the appeal process to avoid missing favorable review opportunities.

Q4: What's the point of appealing to the procuratorate?

Applying to the People's Procuratorate is another avenue for initiating a retrial. According to Article 254 of the Criminal Procedure Law, if the Supreme People's Procuratorate finds that there are indeed errors in the judgments of courts at all levels that have taken effect, or in the judgments of superior procuratorates that have taken effect in lower courts, it has the right to file a protest with the same-level courts in accordance with the judicial supervision procedure, thereby initiating the retrial procedure. Local procuratorates at all levels may file a protest with the superior procuratorates if they find that there are indeed errors in the judgments of courts at the same level that have taken effect. For parties involved, the advantage of procuratorial supervision lies in the fact that the review subject is independent of the original trial court. If the procuratorial organ deems the appeal reasonable, it will actively review the case file; it is recommended to submit materials to the appellate court and the corresponding procuratorate simultaneously when filing an appeal, so as to improve efficiency through parallel processing on two fronts.

Q5: Can I continue to appeal after my appeal has been rejected?

It's possible, but it requires strategic thinking. After an appeal is rejected, the appellant can continue to appeal to the higher-level people's court or the higher-level people's procuratorate, or submit a new appeal after obtaining new evidence. However, simple repetitive appeals without new reasons or evidence are generally not accepted. According to Article 253 of the Criminal Procedure Law, as long as the appellant can provide new evidence to prove that the original judgment was indeed factually incorrect, that the main evidence was unreliable or insufficient, that the application of the law was incorrect, or that the legal procedures were violated, the court shall retry the case. Therefore, the correct approach after an appeal is to strengthen the evidence and refine the arguments, rather than repeatedly submitting the same appeal statement unchanged.

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