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Appeal in China Litigation Procedure

Appeals are an important part of the legal process, since they give you a second chance to have your case hard and evaluated. An appeal refers to party's request for a formal change in a court decision. Any litigant who is dissatisfied with a court decision may file a petition requesting a court of appeals to review the case. This china law firm has Chengdu lawyer, Dalian lawyer, Shenyang lawyer, Nanjing lawyer, Ningbo lawyer, Tangshan lawyer extensively appear on appeal court in China.

The procedure for an appeal varies depending on the type of case and which court system has jurisdiction. Appeals from state court cases must be made to the state court of appeals. Appeals arising out of federal law must be appealed to federal courts. If a case involves a federal agency, it is appealed in a district court directly instead of being handled by the court of appeals.

Either the losing party or the winning party may appeal a verdict in civil cases. The losing party may ask the court to overturn the decision, or to reduce the severity of the penalty imposed. The winning party may ask the court to make the penalty more severe. Cross appeals can also be filed in which the losing party asks for the verdict to be overturned and the winning party simultaneously requests a more stringent penalty be applied. In criminal cases, only the defendant may appeal. The prosecutor cannot appeal a loss due to "Double Jeopardy" protection in the constitution, which ensures that a person is only tried once for a single crime. The appellant, or petitioner, is the person who files an appeal and the opposing party is called the appellee or respondent.

Grounds for Appeals

Appeals can be filed on the grounds that the judge or jury made an error in applying the law. Appeals can also be filed if there was court misconduct, if the evidence did not support the verdict, or if the findings on the facts were clearly unreasonable.

Generally, appeals can only be filed on issues that were raised in the lower court. This means you cannot bring up new points in an appeal in most cases. The exception to this is a direct appeal, in which you appeal the case to the court that made the existing decision because new evidence comes to light. Direct appeals are most often filed in criminal cases when new evidence becomes available that may exonerate a defendant who was found guilty. To introduce new evidence in direct appeals, you must be able to prove that the evidence was not accessible at the time of the original trial.

Appeals Process

Appeals are generally decided without a trial. The appellate court will review briefs, or legal arguments, made by both sides in regards to why the decision should be changed or should remain the same. The appellate court will also review the lower court's written decision, along with any other relevant written evidence. In some cases, appellate courts will also consider the lower court's trial records, including records of the pre-trial proceedings. Occasionally, the appellate court will also hear oral arguments presented by the appeals attorneys.

Appellate courts are generally deferential to the decision made in the lower court. If the court reviews the case and finds no fault in the application of the law and determines that the evidence could reasonably support the verdict, they will affirm the judgment of the lower court or jury. The appellate court will not overturn a case simply because they might have decided it differently. They will only overturn a decision if there was something improper about the way the decision was made, i.e. if the evidence could not possibly support the verdict under any reasonable interpretation, or if the law was not applied properly.

If the appeals court decides that something went wrong at the lower court level, they will either reverse or remand. If they reverse, they are changing the decision entirely. If they remand the case, the case is remitted- or sent back- to the lower court, with instructions on how to correct the original defect in the reasoning.

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.