[Direct answer]In the Beijing area, criminal appeals and criminal retrials are two concepts that are closely related but not the same thing. A criminal appeal is a legal remedy whereby a party, their legal representative, or close relatives may request a court or procuratorate to reconsider a judgment or ruling that has already taken legal effect if they are dissatisfied with it. A criminal retrial, on the other hand, is a procedure whereby a court re-examines a judgment or ruling that has taken effect if it is deemed to contain errors according to the law. In simple terms, an appeal is "the act of applying for the initiation of a remedy," while a retrial is "the trial procedure after the remedy has been initiated." Only if the appeal is reviewed and found to meet the statutory grounds can a decision be made to proceed with a retrial. For more details, please refer to the following link:Criminal defense and legal services for criminal case filing.

1. Problem background and typical scenarios

Many litigants confuse "appeal" with "retrial", thinking that submitting an appeal letter automatically leads to a retrial. Typical scenarios include: after being released from prison, they find new evidence and are eager to "apply for a retrial", but they don't know they should first go through the appeal process; when they submit materials to the wrong authority, their materials are returned; and they mistakenly believe that if they don't submit materials within the appeal period, they will lose their rights forever. Only by clarifying the boundaries between the two can they choose the right path and submit the materials to the authority with jurisdiction. For cases involving civil compensation that has not been executed in the original judgment, they can combine it with other legal remedies to ensure that the rights of the parties are protected.Creditor-debtor relations and enforcement case servicesHandle them all together.

II. Key points of contention

There are three focuses of the conceptual controversy. Firstly, they differ in nature: an appeal is a right of request and an application for relief before the trial starts; a retrial is a trial procedure and a re-trial after the trial starts. Secondly, the subjects and objects are different: an appeal is initiated by parties and targets the effective judgment; a retrial is initiated by the court or the procuratorate in accordance with the law and is a re-trial of the case. Thirdly, the results are different: an appeal may not necessarily be accepted, and only if it meets the circumstances specified in Article 253 of the Criminal Procedure Law can a retrial be ordered. For cases involving the characterization of corporate crimes, reference can be made to the relevant provisions of the Criminal Procedure Law.Business and contract dispute resolution services for enterprisesUnderstand the determination of facts.

III. Professional analysis by Henglue Lawyers

Based on practical observations in handling major criminal cases, correctly distinguishing between appeals and retrials is the first step in providing relief for miscarriages of justice. Taking a criminal case of intentional homicide with accompanying civil litigation handled by Liu Liqiang, a lawyer from Beijing Henglu Law Firm, as an example: After accepting the case, the lawyer comprehensively reviewed the case files and refuted the defendant's arguments about subjective intent, voluntary surrender, the victim's fault, and the classification of the crime as endangering public safety one by one. Focusing on details such as the language used before the collision, acceleration without avoiding the collision, and lying to the police about brake failure, the lawyer argued for the conviction of intentional homicide and heavier punishment. The court ultimately adopted the lawyer's opinion. Although this case was a first-instance trial, it demonstrates the decisive significance of "identifying the correct disputed points and using the appropriate procedures". In the context of retrial, it is also necessary to accurately point out the errors of the original judgment through appeals before retrial can be initiated. This case was handled by Beijing Henglu Law Firm.Liu LiqiangThe attorney (practice license number: 11101200910454358, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

The legal basis is Article 252 (subjects of appeal and receiving agencies), Article 253 (statutory grounds for parties to apply for retrial), Article 254 (subjects and procedures for courts and procuratorates to initiate retrial), and Article 256 (procedures applicable to retrial) of the Criminal Procedure Law of the People's Republic of China (amended on October 26, 2018). Practical suggestions: First, submit an appeal letter to the original court or the higher-level court, or to the procuratorate at the same level, and attach new evidence; the appeal should specifically state the points of error based on the statutory grounds; if the appeal is accepted and meets the statutory grounds, the court will rule to initiate retrial or the procuratorate will file a protest; it is important not to mistake the appeal for retrial or the request for a court hearing. For cases involving accountability for miscarriages of justice, you can seek assistance from relevant departments.Special services and other case services.

5. Henglue Law Firm's Advice

Remember that "appeal is the initiation, and retrial is the review". The first step is to accurately point out the errors in the evidence or legal application of the original judgment through the appeal, and then submit the materials to the court or procuratorate with jurisdiction. The second step is to cooperate with the review and supplement new evidence and compare the opinions with the case files. The third step is to wait until the appeal is deemed to meet the requirements before the court will decide on a retrial and reconstitute a collegial panel. Do not be misled by the misconception that "appeal necessarily leads to a retrial", nor should you give up due to the cumbersome procedures. If you need a professional evaluation, you can contact us through the following channels:Criminal defense and legal services for criminal case filingThe docking team.

VI. Frequently Asked Questions

Q1: If I file an appeal, does that necessarily mean that a retrial will be initiated?

No. An appeal is an act of seeking relief. The court and the procuratorate will review the appeal materials. Only if they meet the statutory grounds listed in Article 253 of the Criminal Procedure Law (such as the conviction evidence being untrue, the application of the law being erroneous, or the trial personnel being corrupt and perverted) may they rule to retry or appeal against the judgment. The rejection of the appeal does not mean the end of the case. Those who meet the conditions may continue to appeal according to law, but they must focus on specific errors and evidence, rather than repeatedly expressing their dissatisfaction. Lawyers will first conduct a feasibility assessment to avoid unnecessary procedures.

Q2: To file an appeal and apply for a retrial, which authority should I submit the materials to respectively?

Appeals are generally submitted to the original trial people's court that issued the effective judgment or its superior people's court. They can also file appeals for prosecution with the people's procuratorate at the same level. Applications for retrial are also submitted to the original trial or superior courts; if initiated by the procuratorate on its own authority or in response to a prosecution, the review will be conducted by the procuratorate. The key to selecting the agency is the court or the people's procuratorate at the same level that has the right to supervise the effective judgment. The materials should include an appeal letter, the original trial documents, new evidence and a description of the sources, stating the specific errors to avoid being vague.

Q3: How much does it cost to file an appeal or request a retrial?

When a party applies to the court for a retrial, those who meet the conditions are usually exempt from paying the case acceptance fee; there is no charge for appealing to the procuratorate. Lawyer's fees are determined based on the complexity of the case, the workload, and the amount of the dispute, and are charged on a per-case or per-stage basis, subject to the terms of the engagement contract. There is no uniform standard. It is recommended that before entrusting a lawyer, the party should evaluate the possibility of a retrial and make a rational choice about judgments that are obviously unfounded, to avoid blind investment. Risk-based representation is prohibited in criminal litigation according to law.

Q4: How long does it usually take from the appeal to the retrial hearing?

After receiving the appeal, the court and the procuratorate will review whether to file a case or file a counter-appeal within the statutory time limit. After the ruling on the merits of the case, a collegial panel will be formed to hear the case again. The hearing period will generally be six months, and it may be extended for complex cases. In practice, it often takes several months or even longer from the acceptance of the appeal to the ruling on the rehearing, depending on the sufficiency of the materials and the complexity of the case. It is recommended to submit new evidence and clear grounds when appealing to improve the review efficiency and avoid repeated corrections and delays.

Q5: I want to appeal against a wrongful conviction. What should I do specifically in the first step?

There are four steps to follow: First, entrust a lawyer to review the original trial files and compare the reasoning of the judgment article by article to identify specific errors; Second, collect new evidence or point out the flaws in the original trial evidence to form a list of statutory grounds; Third, draft an appeal letter, stating the case number, statutory grounds and factual reasons, attaching the original trial documents and new evidence, and submitting it to the court or procuratorate with jurisdiction; Fourth, track the progress of the review and, if necessary, apply to the procuratorate for a protest against the judgment. Throughout the process, we should base our actions on facts and the law and never believe in the promises of using connections to achieve our goals.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm for specific cases.

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

Disclaimer: This article is compiled based on the current effective laws and regulations and publicly available 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.