[Direct answer]The second-instance appeal in criminal cases shall be initiated by the People's Procuratorate: Where the local people's procuratorates at all levels consider that the first-instance judgments or rulings of the people's courts at the same level are indeed erroneous, they shall, in accordance with Article 228 of the Criminal Procedure Law of the People's Republic of China, file an appeal with the people's courts at the next higher level. Where the victims and their legal representatives are not satisfied with the first-instance judgments and do not have the right to appeal independently, they may, in accordance with Article 229, request the People's Procuratorate to file an appeal within five days after receiving the judgment. The People's Procuratorate shall make a decision on whether to file an appeal and respond within five days after receiving the request. The time limit for appealing shall be in accordance with Article 230: ten days for appealing against judgments and five days for appealing against rulings, starting from the second day after receiving the documents. For correcting errors in judgments that have taken effect, it belongs to the appeal in the judicial supervision procedure, and shall be initiated by the Supreme People's Procuratorate or the people's procuratorates at the next higher level in accordance with Article 254. For criminal cases, it is recommended to consult as soon as possible.Criminal defense and legal services for criminal case filingA lawyer.

1. Problem background and typical scenarios

After the first-instance judgment, the path for the defendant to appeal is widely known, while the question of "what to do if the sentence is too lenient" is often overlooked. Victims in public prosecution cases do not have the independent right to appeal. If they believe that the sentencing is clearly unbalanced or the facts are misidentified, they can only rely on the procuratorate's appeal procedure, and the time window for this is only a few days. Typical scenarios include: the victim or his family believes that the defendant has been sentenced too leniently and wants to push for a retrial after the judgment; the procuratorate has different opinions on the evidence identification, legal application, or sentencing in the first-instance judgment and decides to initiate a second-instance review; the victim only thinks of asserting his rights a few days after receiving the judgment, but finds that the deadline for the appeal request has passed; and after the second-instance judgment, if the victim is still not satisfied, he may not know what other procedures he can take. Who initiates the appeal, to whom, and when, determines whether the remedy is timely and directly affects the pattern of the second-instance review.

II. Key points of contention

  • The hierarchical division of the subjects of appeal: The appeal in the second instance can only be raised by the people's procuratorates at all levels of the localities against the first-instance judgments and rulings of the courts at the same level that have not yet taken effect; the Supreme People's Procuratorate has no corresponding first-instance judgments and rulings that have not yet taken effect to appeal against. For the judgments and rulings that have taken effect, the appeal can only be raised in accordance with the judicial supervision procedure. The subjects, objects and time limits for initiating the two procedures are completely different.
  • The boundaries of the victim's right to appeal: According to Article 229 of the Criminal Procedure Law of the People's Republic of China, victims can only appeal against the "verdict", and the ruling cannot be applied to them; the appeal period is five days after receiving the verdict, and the procuratorate does not need to respond after the deadline. The remedy channel then shifts to an appeal.
  • The relationship between the right of appeal and the right to file a counter-appeal and the imposition of heavier punishment: According to Article 237, in the second instance where only the defendant appeals, the court may not impose a heavier punishment on the defendant. However, in the second instance where the procuratorate files a counter-appeal, this restriction does not apply, and the court may legally impose a heavier punishment on the defendant. This means that the victim has hope, but the defendant faces increased risks. Both parties need to take the preparation for the second instance seriously.

III. Professional analysis by Henglue Lawyers

The observation of Henglue Lawyers in handling major criminal cases is that the first-instance judgment is not the final outcome. The ten days after the judgment is served are the common window for appeals and counter-appeals. Regardless of which side one represents, they should promptly assess whether to initiate relief measures. In a criminal incidental civil case involving a car crash that resulted in a fatality, Henglue Lawyers represented the victim's family in the litigation. By comprehensively reviewing the case files, analyzing the physical evidence, witness testimonies, and the defendant's confessions, they refuted the defendant's defense arguments regarding subjective intent and voluntary surrender one by one. Ultimately, the court sentenced the defendant to death for intentional homicide, and the request for incidental civil compensation was also supported. This type of case shows that whether the sentencing is appropriate to the crime and whether the evidence has been comprehensively evaluated requires professional analysis before deciding whether to initiate a counter-appeal. For the defendant's side, once the procuratorial organ initiates a counter-appeal, the intensity of the second-instance defense must be upgraded - counter-appeal cases must be heard in court according to Article 234 of the Criminal Procedure Law of the People's Republic of China, and both the prosecution and the defense can cross-examine and debate in court. There is also a possibility of increased punishment, and the level of refinement of the second-instance defense directly affects the outcome. For more case practice, please refer toBeijing Henglu Law FirmI understand.

IV. Practical Suggestions and Legal Basis

Legal basis: Article 228 of the Criminal Procedure Law of the People's Republic of China stipulates that when local people's procuratorates at all levels believe that the judgments or rulings of the people's courts at the first instance level are indeed erroneous, they shall file a protest with the people's courts at the next higher level; Article 229 stipulates that victims and their legal representatives who are not satisfied with the judgments of the first instance have the right to request the people's procuratorates to file a protest within five days after receiving the judgment; the people's procuratorates shall make a decision on whether to file a protest within five days after receiving the request and give a reply; Article 230 stipulates that the time limit for appealing and protesting against judgments is ten days, and for protesting against rulings is five days, starting from the second day after receiving the judgment or ruling; Article 234 stipulates that the people's courts at the second instance shall hold a hearing for cases protested by the people's procuratorates; Article 237 stipulates the principle of not imposing heavier punishment on appellants and its exceptions; Article 254 stipulates that when the Supreme People's Procuratorate finds that judgments and rulings of people's courts at all levels or judgments and rulings of higher-level people's procuratorates against lower-level people's courts are indeed erroneous, it shall file a protest with the people's courts at the same level in accordance with the procedures of judicial supervision. Practical suggestions: Victims should immediately evaluate the judgment after receiving it and submit a request for protest within five days, stating specific reasons such as factual misidentification and unbalanced sentencing; if the procuratorate replies that it will not protest, the victim can appeal to the next-level procuratorate; the defendant should promptly appoint a second-instance defense attorney after receiving the protest, organizing the defense around evidence shortages, sentencing circumstances, and new evidence; both parties should pay attention to the fact that the time limit starts from the second day after receiving the document, and they should not delay it.

5. Henglu Law Firm's Reminder

An appeal is a top-down supervision and correction mechanism within the public prosecution system, which runs in parallel with the defendant's appeal without conflict. The time limits, subjects, and legal consequences of the two are all different. Whether you are a victim seeking to push for a retrial, or a defendant needing to defend against an appeal, you must act as soon as possible after the judgment is delivered - once the 10-day and 5-day time limits pass, the cost of relief will increase exponentially. The above-mentioned criminal incidental civil case is handled by Beijing Henglu Law Firm.Liu LiqiangAttorney (Practice Certificate No.: 11101200910454358, subject to the document issued by the judicial administrative organ). If you are currently facing the evaluation of the first-instance judgment, the appeal request, or the choice of defense in the second instance, it is recommended that you consult a professional lawyer as soon as possible with the judgment and main evidence, and seize the procedural window.

Q1: If the victim is not satisfied with the first-instance verdict, can they appeal on their own?

It is not possible to appeal directly. Victims of public prosecution cases do not have the right to appeal independently against criminal judgments. However, according to Article 229 of the Criminal Procedure Law of the People's Republic of China, if a victim is not satisfied with the first-instance judgment of a local people's court, he/she may, within five days after receiving the judgment, request the people's procuratorate to file a protest against the judgment; and the people's procuratorate shall, within five days after receiving the request, make a decision on whether to file a protest against the judgment and reply to the requestor. Two points should be noted: the request object is limited to "judgments", and no protest can be requested against rulings; if the plaintiff in an accompanying civil action is not satisfied with the judgment on the accompanying civil part, he/she may appeal on his/her own according to law. Therefore, victims should take action immediately after receiving the judgment. If the request for protest is made after the time limit, it will not be accepted, and the victim can only resort to remedies such as appeals after the fact.

Q2: After the procuratorate receives the request for appeal, if it decides not to appeal, is there any other way out?

There are still remedial channels. The decision of the procuratorate not to appeal is a procedural handling. The victim may appeal to the people's procuratorate at the next higher level to reflect the problems in the determination of facts, application of law, or sentencing in the first-instance judgment; after the judgment takes effect, he/she may also appeal to the court or the procuratorate through the judicial supervision procedure. According to Article 254 of the Criminal Procedure Law of the People's Republic of China, the Supreme People's Procuratorate has the right to file an appeal to the people's court at the same level in accordance with the judicial supervision procedure if it finds that there are indeed errors in the judgments and rulings that have taken legal effect in the people's courts at all levels, and the people's procuratorates at the next higher level have the right to file an appeal to the people's courts at the next lower level if they find that there are indeed errors in the judgments and rulings that have taken legal effect in the people's courts at the next lower level. The appeal materials should focus on specific verifiable issues such as obvious imbalance in sentencing, errors in fact determination, and errors in legal application, and try to supplement new evidence. It is difficult to initiate a retrial by simply stating vaguely that "the sentence is too light".

Q3: After the procuratorate files an appeal, will the second-instance court impose a heavier punishment on the defendant?

Possibly. According to Article 237 of the Criminal Procedure Law of the People's Republic of China, in cases where the appellant is the defendant or his legal representative, attorney, or close relative, the second-instance people's court shall not impose a heavier punishment on the defendant, which is the principle of no heavier punishment for the appellant; however, cases where the people's procuratorate lodges a protest or the self-prosecutor appeals are not subject to this principle. Therefore, in the second-instance trial initiated by the protest, the second-instance court may lawfully impose a heavier punishment. For the defendant, the prosecutor's protest means that the case risk has escalated. He/she should hire a professional lawyer to strengthen the defense in the second-instance trial, fully argue against the sentencing circumstances, weak evidence, and procedural issues, and take advantage of the opportunity for a court hearing in the protest case to cross-examine and debate in court to strive to maintain or improve the result of the first-instance judgment.

Q4: After the second-instance judgment, can the procuratorate still file a protest against the judgment?

The second-instance judgment is the final judgment, and once it is made, it will take legal effect immediately. There is no "second-instance appeal" against it, and only the judicial supervision procedure can be used. According to Article 254 of the Criminal Procedure Law of the People's Republic of China, if the Supreme People's Procuratorate finds that there are indeed errors in the judgments and rulings that have taken legal effect of the people's courts at all levels, or in the judgments and rulings that have taken legal effect of the lower people's courts by the higher people's procuratorates, it shall, in accordance with the judicial supervision procedure, file an appeal with the people's courts at the same level, and the people's courts shall reconstitute a collegial panel to hear the case. The appeal in the second instance and the appeal in the third instance are different in terms of the initiating subject, the object of the appeal, and the procedural requirements. If the parties believe that there are indeed errors in the effective judgments, they may file an appeal with the procuratorate or the court, submit new evidence and specific reasons, and the competent authority will review and decide whether to initiate a retrial.

Q5: Is a second-instance trial always held in court for cases subject to appeal?

Generally, yes. According to Article 234 of the Criminal Procedure Law of the People's Republic of China, the people's court of second instance shall form a collegial panel to hear the case where the people's procuratorate lodges an appeal. In addition, the cases where the defendant, the self-accuser, and their legal representatives raise objections to the facts and evidence determined in the first instance, which may affect the conviction and sentencing, and the cases where the defendant is sentenced to death, etc., shall also be heard in court. The court session means that both the prosecution and the defense can cross-examine and debate in court, which is obviously more conducive to clarifying the facts and fully expressing their opinions. The parties concerned shall complete the preparation of their defense or agency strategies and evidence before the court session, and, if necessary, apply for witnesses to appear in court and submit new evidence to fully safeguard their rights and interests through the court session, rather than treating the second instance as a mere formality.

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