[Direct answer]According to Article 234 of the Criminal Procedure Law (amended on October 26, 2018), the second-instance court shall form a collegial panel to hear the following cases in open court: cases in which the defendant, the self-prosecutor, or their legal representatives raise objections to the facts and evidence determined in the first-instance trial, which may affect the conviction and sentencing; cases in which the defendant is sentenced to death; cases in which the People's Procuratorate files a protest; and other cases that should be heard in open court. If it is decided not to hold a trial in open court, the defendant shall also be interrogated, and the opinions of the defense attorney and the litigation agent shall be heard. If you want to strive for a trial in open court, you should submit an appeal statement stating your objections to the facts and evidence within the 10-day appeal period after receiving the judgment, and you can do so through the following channels:Criminal defense and legal services for criminal case filingOrBeijing Henglu Law FirmStart the second-instance defense.

I. Problem background and typical scenarios

After being found guilty in the first instance or appealing because they believe the sentence is too severe, the most worrying thing for the parties and their families is the "formalities of a written trial" — not attending court hearings or meeting judges, with just a few documents leading to the original verdict being upheld. In China's second-instance procedures, trials are not always held: those meeting statutory conditions must be held, while other cases can be conducted without a court hearing but must interrogate the defendant and hear the defense attorney's opinions. In practice, whether a second-instance trial can be held depends on whether the appeal grounds are recognized as "objections to the facts and evidence that may affect the conviction and sentencing": those who simply cry out innocence or only discuss the severity of the sentence often end up with no court hearing and the original verdict being upheld; those who point out evidence contradictions, submit new evidence clues, or request key witnesses to appear in court have a significantly higher chance of a trial and a change in the verdict. In addition, death penalty cases and cases where the procuratorate files a protest are held without exception, which is not only a procedural safeguard but also a systemic space that defense attorneys must make full use of.

II. Key points of contention

  • The judgment that "may affect the conviction and sentencing": The court will assess whether the objection specifically targets a piece of evidence or a fact, and whether the objection is supported by evidence or reasonable clues. Abstract dissatisfaction and emotional expressions are unlikely to trigger a trial.
  • The relationship between the court hearing and the outcome: A court hearing does not equal a change in the verdict, but the cross-examination during the trial is the core procedure for verifying the facts determined in the first instance. In cases without a court hearing, the defense should also make full use of the interrogation and hearing of opinions to submit written opinions. Both are rights, and if they are abandoned, they will be lost.
  • Protection of procedural rights: If the second-instance court fails to interrogate the defendant and hear the defense attorney's opinions, it constitutes a procedural violation that may affect the fairness of the trial and may lead to the case being sent back for retrial. This should be specifically stated in the appeal.

III. Professional analysis by Henglue Lawyers

A major criminal case with one death and two injuries, and significant disputes over conviction and sentencing, is a typical application scenario of the second-instance trial rules. A criminal case of intentional homicide with civil litigation represented by Henglue Lawyers can serve as an example: On the night of June 16, 2024, staff at a concrete mixing station and the defendant, Zhang Daqiang, had a dispute over the quality of the construction concrete. After Zhang Daqiang was persuaded to return to his dormitory, he drove a white Cheetah car at a speed of about 60 to 62 kilometers per hour and rammed into the laboratory. The vehicle crashed through the door and burst out from the back wall, resulting in the immediate death of Zhao Gang and injuries to Zhang Bin and Li Yuanzheng. The wife of the victim, Zhao Gang, entrusted Henglue Lawyer Liu Liqiang to represent her in the civil litigation and participate in the criminal proceedings. During the trial, the prosecution and defense sides clashed on three points: 1. Subjective intent: The defense argued that "wanting to kill them" was just a joke, but the lawyer pointed out that Zhang Daqiang explicitly expressed murderous intent before the impact, accelerated despite being less than 5 meters from the door, and deliberately ignored the positions of the people inside despite knowing their location, concluding that the intent was sufficient. 2. Surrendering voluntarily: Although Zhang Daqiang voluntarily called the police, he lied about the brake failure, failed to truthfully admit the fact of driving into the laboratory, and repeatedly recanted his statement, which did not meet the requirements of truthful confession. 3. Charging offense: The defense argued for the crime of endangering public safety by dangerous methods, but the lawyer demonstrated that the target was clear and aimed at multiple specific individuals, so it should be determined as intentional homicide. The court accepted the lawyer's arguments, convicted Zhang Daqiang of intentional homicide and sentenced him to death. The civil litigation supported the victim's family's compensation request. For such death penalty cases, according to Article 234, paragraph 2 of the Criminal Procedure Law, a second-instance trial must be held. The cross-examination in the trial is a crucial procedure for testing the accuracy of the facts. For the victim's side, solid evidence defense in the first-instance stage also determines the outcome of the second-instance trial. Compensation for personal injury can be considered in this context.Personal injury and medical dispute servicesCoordinate and propose solutions.

IV. Practical suggestions and legal basis

Legal basis: Article 227 of the Criminal Procedure Law (amended on October 26, 2018) grants defendants, self-prosecutors, and their legal representatives the right to appeal against first-instance judgments and rulings; Article 230 stipulates that the appeal period for those who disagree with the judgment is ten days; Article 234 lists four circumstances under which the second-instance trial should be held in court and prescribes the obligation to interrogate and hear opinions when the trial is not held in court; Article 243 stipulates that the second-instance trial generally should be concluded within two months, and cases involving the possibility of the death penalty or accompanying civil litigation may be extended for two months with the approval of the higher court. Article 232 of the Criminal Law (implemented on October 1, 1997) provides the basis for convicting intentional homicide. Victims who suffer material losses due to criminal acts have the right to initiate accompanying civil litigation according to law. Practical suggestions: The appeal statement should focus on the facts and evidence, stating what objections there are to which evidence and facts, and why they affect the conviction and sentencing; simultaneously submit new evidence clues and apply for witnesses and appraisers to appear in court; after fully reviewing the case file, the defense attorney should submit the second-instance defense statement and formally apply for a court hearing; the victims' families should continue to participate during the appeal stage to ensure that the accompanying civil claims are not overlooked. Specifically, they can do this byCreditor-debtor relations and enforcement case servicesEnsure the performance of the compensation payment.

5. Henglue Law Firm's Reminder

The second instance is the last window for a retrial in the regular process. The ten-day appeal period starts from the day after receiving the judgment, and the judgment will take effect if it exceeds the time limit. Therefore, it is necessary to act quickly. Even if the court decides not to hold a hearing, we should make full use of the opportunity to interrogate the defendant and listen to the defense attorney's opinions, and prepare the written defense opinions thoroughly. If the application for a hearing is rejected, we can supplement our objections and evidence and submit them again. The above-mentioned criminal incidental civil action case of intentional homicide is handled by Beijing Henglu Law Firm.Liu LiqiangThe lawyer (practice license number: 11101200910454358, subject to the document issued by the judicial administrative organ) acts on behalf of the defendant. The court sentenced the defendant to death for intentional homicide and supported the request for incidental civil compensation. Whether you are the appellant or the victim's family, it is recommended that you immediately start the second-instance evaluation after receiving the first-instance judgment, and let the lawyer review the case file to determine the possibility of a retrial and the path to a favorable judgment.

Q1: If there's no hearing in the second instance, does that mean the original judgment will be upheld?

This is not necessarily the case. Not holding a court hearing does not mean not reviewing the case: the court should still question the defendant, listen to the opinions of defense attorneys and litigation agents, and conduct a comprehensive review of the facts, evidence, and legal application. In practice, cases with unspecific factual objections and no new evidence often adopt the method of not holding a court hearing and maintaining the original judgment; while cases with major objections and solid materials may be converted to a court hearing even if not initially held, after the defense attorney provides supplementary opinions. For parties involved, the correct strategy is not to gamble on procedural formalities, but to substantiate the evidence objections—if the objections are strong enough, holding a court hearing is just a matter of time; if the objections are vague, even holding a court hearing may not lead to a turnaround.

Q2: How can we get the court to determine that the objection "may affect the conviction and sentencing" and thus hold a trial?

Three key points: First, specify the objections in detail, listing the contradictions in each piece of evidence and fact by fact, such as the time conflict between the confession and the physical evidence, or the flaws in the inspection materials of the appraisal opinion; Second, provide evidence support by submitting new evidence or clear clues to new evidence with the appeal brief, and applying to retrieve key materials that were not collected in the first instance; Third, explain the impact, demonstrating how the objections, once established, will shake the conviction or change the sentencing level. In addition, death penalty cases and cases where the procuratorate files a counter-appeal must be heard in court according to the law. Where applicable, the appellant should cite Article 234 of the Criminal Procedure Law in the appeal brief to make clear claims. Entrusting a second-instance lawyer to review the case file in full and issue an opinion on the necessity of a court hearing can significantly increase the probability of the court granting permission for a hearing.

Q3: How long will it take to issue a verdict after the second-instance trial begins?

According to Article 243 of the Criminal Procedure Law, the second-instance court shall conclude the appeal and counter-appeal cases within two months; for cases that may be sentenced to death or cases with accompanying civil litigation, as well as those that meet the statutory major and complex circumstances, with the approval or decision of the provincial-level high court, the time limit may be extended by two months; for cases requiring further extension due to special circumstances, approval shall be sought from the Supreme People's Court in accordance with the law. In practice, the duration of death penalty cases and cases involving accompanying civil compensation is generally longer, and the time required for evidence supplementation and expert evaluation will be extended. Families should maintain communication with defense attorneys and understand the progress through stage feedback rather than passively waiting for notifications.

Q4: Do I need to pay money for a criminal appeal?

Appellations in criminal cases do not incur litigation fees, and the right to appeal itself has no cost threshold. This is precisely the legislative guarantee of the defendant's right to relief. The fees mainly occur in the process of entrusting defense: the attorney fees for the second instance are determined by both parties through consultation during the agency phase. The workload in reviewing case files, meeting with clients, and attending court hearings is usually higher than that in the first instance. Before signing the contract, the scope of agency and the billing method should be clarified. For appeals involving ancillary civil actions, the case acceptance fees are paid according to the standards for property cases. It should be noted that the 10-day appeal period is fixed. If there are holidays, the rules for extending the deadline should be verified with the lawyer. It is not advisable to delay the submission of the appeal brief due to cost considerations.

Q5: What is the key to the overturning of the verdict in the second trial?

There are three main aspects: First, factual evidence errors, where the first-instance court accepted contradictory evidence, omitted key evidence, or new evidence emerged that was sufficient to change the determination of the facts; Second, errors in legal application, such as incorrectly defining the crime or misunderstanding legal provisions; Third, manifestly inappropriate sentencing, where the sentencing deviates from the standards for similar cases and fails to fully evaluate mitigating circumstances. In addition, if the first-instance court committed serious procedural violations, such as depriving the parties of their statutory litigation rights, the court may rule to revoke the original judgment and remand the case for retrial. A retrial is never a matter of luck, but rather involves reconstructing the evidence chain around the above-mentioned aspects: allowing the second-instance lawyers to review the case files in full as early as possible, meeting with the defendant to verify the trial details, identifying new evidence, and proposing a clear retrial plan based on a comparison with the sentencing standards item by item.

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 Henglu Law Firm