Insights

Ningbo Divorce Second Instance Revised Sentencing? 6 Cases and Appeal Points

Ningbo Author：LuXu WANG

The most painful thing to get the judgment of the first instance is not to lose, but to lose in a certain link when it is clearly justified. The appeal period is only 15 days, and whether it can be turned over depends on where the right and wrong are judged correctly and whether the reasons can be put on paper in these 15 days.

Review Scope and Common Results of 1. Second Instance

the second instance procedure revolves around the relevant facts and applicable law of the appeal request, and does not retry the case from the beginning. Therefore, what is written in the appeal petition and what is requested directly frames the scope of the second instance. There are four common outcomes: rejection of the appeal to uphold the original sentence; revision of the sentence in accordance with the law; remanding the original sentence for retrial; and closing the case after reaching an agreement through mediation. In practice, the proportion of cases settled through mediation is not low.

Period of Appeal and Writing of Appeal

if a person refuses to accept the judgment of first instance, he shall appeal within 15 days from the date of service of the judgment, and the appeal period for the decision shall be 10 days. The most important way to write an appeal is to write only the word "disobedience". The effective writing method is to correspond to the first instance determination item by item, pointing out which piece of fact determination contradicts which piece of evidence, and which provision should be applied but not applied.

2. Category I and II: Fact-finding Errors and Missed Property Judgments

the first category is that the basic facts found in the original judgment are clearly inconsistent with the evidence in the case, such as the recognition of the acquisition after marriage as pre-marital acquisition, and the joint repayment of the loan as personal settlement. The second category is omission: the first instance does not deal with deposits, equity, policies or rental income that have been claimed. These two categories account for the highest proportion of property division cases, and are also the types that are most likely to be changed directly in the second instance.

3. categories III and IV: errors in the application of law and procedural violations

the third category is the wrong choice of rules, such as the division of income that should be treated as interest as operating income, or the failure to apply the principle of taking care of the no-fault party. The fourth category is procedural issues, including the omission of parties who must participate in the proceedings, illegal service, and deprivation of the parties' right to debate, which may lead to rescission and remand for retrial.

The difference between remanding and direct revision of sentence

if the facts are clear and the law is wrong, the second instance can directly change the judgment, which is more efficient. If the basic facts are not clear or the procedures are seriously illegal, they are often sent back for retrial, and the case returns to the first instance and goes through the process again. When appealing, one should judge which path one would prefer to take in light of one's own demands, and focus on the grounds of appeal.

4. Category V: Adjustment of Maintenance Arrangements

article 1084 of the the People's Republic of China Civil Code establishes the principle of what is best for minor children. If the actual living conditions of the children change after the first instance, the health or working conditions of the dependents change significantly, or the true wishes of the children who have reached the age of eight are not heard, the second instance may adjust the dependency relationship or the amount of alimony. Simply requesting a change on the grounds of better economic conditions is of limited persuasion.

5. Category VI: Revision Caused by New Evidence

new bank flows, appraisal reports, transfer vouchers, etc. obtained after the first instance may change the division conclusion. However, there is a strict threshold for new evidence in the second instance, and it is necessary to state that the evidence cannot be obtained within the time limit for proof in the first instance or that it has been submitted but has not been cross-examined. If it is submitted late and without justifiable reasons, it may not be adopted and shall bear the corresponding consequences.

The threshold of new evidence in the second instance

it is safer to submit the evidence collection process at the same time: when to know the clues, when to apply for access, and why the first instance cannot be completed. If there is evidence of access materials issued by the court or time certificates issued by third parties, the possibility of adoption is significantly increased.

6. preparations to increase the probability of revision

first, disassemble the reasoning of the first-instance judgment paragraph by paragraph, and mark the evidence on which each determination is based; second, focus the dispute on two or three points that are most likely to be overturned to avoid full bloom; third, prepare in advance Mediation plan, second-instance mediation can often get more practical results than the judgment.

7. case proof

in practice, if the first instance omits the treatment of the cash value of a large policy under one party's name, and the party clearly proposes and submits the policy and payment voucher in the appeal, the second instance generally determines that it is a missed judgment and can directly make a revision of the judgment. Take the cash value of 600,000 yuan as an example, the other party can usually get a share of about 300,000 yuan. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

In practice, the first instance of a party's pre-marital real estate after marriage joint repayment part of the whole identified as personal repayment, belongs to the basic facts found and in the record repayment records do not match, the second instance to be corrected, according to the joint repayment of half of the principal and interest plus the corresponding value-added share recalculated the amount of compensation. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence. The calculation of such compensation in Ningbo area has a public caliber: Ningbo Intermediate Court "to the case" "divorced," how to calculate the "account"? "" Introduction Beilun Court judge caliber, pre-marital house purchase after marriage and joint repayment of the loan compensation according to the "value-added index x (joint repayment ÷ 2)" calculation, the second trial correction can be compared to this caliber claim.

8. Risk Alert

  • missed appeal period: If no appeal is filed within 15 days after the service of the judgment, the judgment will take effect and there will be no more regular remedies.
  • The appeal is written as an expression of emotion: without specific identification and legal provisions, it is difficult to find a change in the second instance.
  • The request is beyond the scope of the first instance: the second instance adds litigation requests that are not filed in the first instance, and generally will not be heard.
  • New evidence not explained: did not explain why the first instance could not be obtained, overdue evidence may be excluded.
  • Full bloom: all identified as wrong, but diluted the real powerful point of contention.
  • Ignore the mediation window: Insist that as long as the decision does not talk about mediation, may miss more favorable practical results.

9. FAQ

A trial does not allow divorce, appeal useful?

The percentage of divorce granted by revision is not high. The more common path is to prosecute again six months after the judgment takes effect, or to file a separate case after the evidence that the fact of separation continues and the relationship has indeed broken down is reinforced.

Can the second instance put forward the property that the first instance did not say?

Generally, new claims cannot be added. However, for common property that has not been disposed of by omission in the first instance, the omission of the judgment may be claimed in the second instance, or a separate lawsuit may be filed for division after the judgment has entered into force.

Will the second trial be held?

Not necessarily. For the materials that have been submitted and the facts ascertained in the first instance, if the collegial panel believes that there is no need for a court session, it can make a judgment; however, for divorce cases with more controversial facts, court sessions are more common in practice.

Would it be better for me to send it back for retrial?

It depends. Sending back for retrial means returning to the first instance for retrial, which increases the time cost, but it is more advantageous for cases where the facts need to be re-ascertained. It is only faster to change the sentence directly if the application of the law is wrong.

Practical Experience of 10. Lawyers

when the first-instance verdict is handed down, the hardest thing is often not to lose, but to "lose in a certain link when it is clearly justified". Judging from the experience of handling cases, the second instance only focuses on the facts and laws involved in the appeal request, not a retrial from the beginning. Therefore, what is written in the appeal petition and what is requested directly defines where the second instance can be tried. The appeal period is very short. After receiving the judgment, the strategy should be determined as soon as possible: whether it belongs to the fact determination or property omission, or the application of law, procedural issues, or the adjustment of custody arrangements. If the direction is right, there is room for revision. If the direction is wrong, it is difficult to adopt more reasons.

The most important thing to avoid is to write "not satisfied" in the appeal. The effective writing method is to correspond to the first instance determination item by item: to indicate which piece of fact contradicts which piece of evidence in the case, which article should be applied but not applied, and which deposit, equity, policy or rental income that has been claimed has been missed. If the facts are clear and only the wrong law is used, the second instance can directly change the judgment, which is more efficient. If the basic facts are not clear or the procedures are seriously illegal, they are often sent back for retrial, which is tantamount to returning to the first instance and going again. It is necessary to judge which path you prefer to take in the light of your own demands, and to focus on the grounds of appeal.

The key to improving the probability of revision lies in preparation: to reorganize the neglected evidence in the first instance file into a list, to supplement the facts that can be strengthened, and to be consistent in the evaluation caliber involving value. At the negotiation level, the mediation foundation of the second instance is often not bad. Many cases are closed by mediation. Instead of hard waiting to change the judgment, it is better to use the reality of "the cost is higher and the result is still uncertain" to push the other party to make concessions on one or two core disputes. Tips for avoiding pits: Don't take appeals as emotional exits and cram in a large number of irrelevant claims, and don't expect new evidence to come to the door-there is a threshold for evidence to be adopted, and the earlier you prepare, the more active you will be.