Ningbo refuses to accept the divorce or inheritance judgment, how to apply for retrial and find the procuratorate- Zhiheng Law Firm

In such cases as divorce and inheritance, many people think that "the dust has settled" when they reach the judgment of the second instance. In fact, the law has left another door for the judgment that has already taken effect: one way is to apply to the people's court at the next higher level for retrial; if the application for retrial is rejected, the court fails to review it within the time limit, or the retrial judgment itself still has obvious errors, it can also be apply to the people's procuratorate for procuratorial suggestion or protest. The order of "court first, then procuratorate" cannot be reversed, and each has a hard time limit and threshold. This article takes apart the most frequently asked questions of Ningbo parties: under what circumstances can relief be provided, what are the legal reasons for retrial, how to prepare materials, when to prosecute another case, when to find the procuratorate, and what real channels can Ningbo take.

1. judge first: is there any relief space in this case

Before you get started, first conduct a “feasibility assessment” so you don’t waste time and money on projects that are already beyond the point of return.

First, see if the original trial is finished. If you do not appeal within the statutory appeal period after the first-instance judgment or mediation statement is made, the judgment has already taken effect. At this time, you can no longer appeal, and you can only consider applying for a retrial. If the case has undergone a second-instance trial, the second-instance judgment shall take legal effect from the date of its service. Here is a reminder: For judgments and mediation documents that have become legally effective, the law clearly stipulates that no application for retrial is allowed-that is to say, the conclusion of "divorce" itself can usually not be overturned in retrial, but the division of property, Child support and other parts may still be dealt with through retrial or separate litigation.

Second, look at deadlines. Article 212 of the Civil Procedure Law provides that a party applying for retrial shall do so within six months after the judgment or ruling has taken legal effect. Note that the starting point is “the date on which the judgment takes effect,” not “the date of receipt of the judgment,” nor “the date when the new circumstances are discovered.” Only a few kinds of reasons-there is new evidence sufficient to overturn the original judgment, the main evidence found in the original judgment is forged, the legal documents on which the original judgment was based have been revoked or changed, and the judges have embezzled and accepted bribes to practice favoritism and perverted the law during the trial-these four categories are six months from the "date when they knew or should have known. In addition, if the right lapses upon expiration, the court will rule to dismiss the case.

Third, look at the goal. Do you want to overturn the conclusion of the whole personal relationship, or only want to correct the property part? Do you want to get back a property that was missed, or do you think that the applicable law of the judgment is indeed wrong? Different goals often lead to different paths.

2. retrial is not "the third trial", but an error correction with strict threshold

Many parties regard the retrial as "the third court session", and feel that as long as they are not satisfied with it and tell the truth again, the court will try it again. This is a misconception that must be corrected. The official name of the retrial is the trial supervision procedure. It is not a continuation of the trial level, but a special error correction procedure for the effective judgment. Whether it can be entered depends on whether it hits the legal reasons specified in the law.

Article 207 of the Civil Procedure Law sets forth thirteen circumstances under which a people’s court shall retry a case, commonly referred to as “grounds for retrial.” These thirteen items can be divided into several categories to understand:

type of evidence: there is new evidence which is enough to overturn the original judgment or ruling; the basic facts confirmed by the original judgment or ruling lack of evidence; the main evidence of the facts confirmed by the original judgment or ruling is forged; the main evidence of the facts confirmed by the original judgment or ruling is not cross-examined.
Investigation and evidence collection category: for the main evidence needed for the trial of the case, the party concerned cannot collect it by himself due to objective reasons, and applies in writing to the people's court for investigation and collection, but the people's court has not investigated and collected it.
applicable law category: the original judgment or ruling is wrong in applying law.
Procedure and organization: the composition of the trial organization is not legal, or the judges who should be evaded according to law do not evade; the person with no capacity for litigation acts on behalf of the legal representative, or the party who should participate in the litigation does not participate in the litigation because of the reason that he or she cannot be blamed on him or her and his agent ad litem; the party is deprived of the right to debate in violation of the law; the judgment without summons; the original judgment or ruling omits or exceeds the claim.
Basic documents and duty violations: the legal documents based on which the original judgment or ruling is made are revoked or changed; the judges have embezzled and accepted bribes, practiced favoritism and perverted the law when trying the case.

These thirteen items are "keyholes", and your reasons must be aimed at one or more of them before they can be accepted and ruled for retrial. Simply saying "I think the sentence is unfair", "what the other party said is not true", "I don't approve of this amount", are not in the door.

3. apply to the higher court for retrial: process and materials

The first step in applying for a retrial is to select the right court. Article 206 of the Civil Procedure Law provides that, with respect to judgments and rulings that have already taken legal effect, parties may apply to the next higher people’s court for a retrial. For example, if the first instance of the basic court takes effect, the higher level is the intermediate people's court; if the second instance of the intermediate people's court takes effect, the higher level is the higher people's court. In cases where one party has a large number of parties or where both parties are citizens, they may also choose to apply to the original court for retrial.

To apply for retrial, the application for retrial and other materials shall be submitted. The court shall deliver the copy to the other party within five days from the date of receipt, and the other party may submit written opinions within 15 days. The court shall generally review the application for retrial within three months from the date of receipt of the application for retrial. If the application is in conformity with the provisions, the retrial shall be made, and the ruling shall be rejected if it is not in conformity with the provisions; special circumstances may be extended with the approval of the president of the court. In principle, the people's court at or above the intermediate level shall hear a case in which a retrial is ruled on the basis of an application by the party concerned.

Materials to be prepared usually include:

application for retrial: specify the basic information of each party, the requested matters, the legal reasons for retrial, as well as the facts and reasons;
the original judgment documents: the judgment of the first and second instance or the ruling, the mediation statement, preferably with the effective certificate;
evidence materials: the evidence supporting the retrial, especially the new evidence, should explain the formation time, source and why the original trial failed to submit;
Identity and main materials: copy of ID card, business license, power of attorney and so on;
Service Address Confirmation and related procedural materials.

We should also pay attention to the arrangement of execution: when the parties apply for retrial, the execution of the original judgment and ruling will not be stopped; however, when the case is decided to be retried according to the trial supervision procedure, the people's court will rule to suspend the execution of the original judgment, ruling and mediation statement, including cases of recovery of alimony, alimony, upbringing, pension, medical expenses, labor remuneration and so on. This point should be paid particular attention to in family cases of maintenance and support.

4. what reason is the real "hard injury"

The retrial threshold is high, and the reason is to choose "hard injury" instead of "disobedience". In practice, it is easy to impress the examining judges in the following categories.

First, the new evidence is sufficient to overturn the verdict. This is the most frequently cited and most easily misused cause. The key lies in the two ends of "new" and "enough to overthrow": if the evidence is newly discovered after the end of the original trial or cannot be objectively handed in by the original trial, it must be strong enough to shake the basic facts found in the original judgment. Relying solely on a witness statement that the other party does not recognize and a statement whose timing is unclear is usually insufficient.

Secondly, The main evidence for finding the facts is insufficient or falsified. If the key evidence on which the original judgment was based is not itself tenable-for example, the debit note is forged, the appraisal conclusion procedure is illegal, and the main evidence has not been cross-examined-it falls within the scope of the statutory cause.

Third, the applicable law is indeed wrong. This item is particularly important in matrimonial and family cases. For example, errors in the determination of the scope of the joint property and personal property of the husband and wife, errors in the understanding of the validity of the divorce agreement and the corresponding time limit, errors in the application of the statute of limitations system, etc., may constitute errors in the application of law, not just "differences in the determination of facts".

Fourth, the litigation procedure was unlawful. The composition of the trial organization is illegal, the judges who should be evaded are not evaded, the judgment is made in absentia without a summons, the illegal deprivation of the right to debate, the omission or exceeding the request of the lawsuit, etc., are procedural injuries, and are often more likely to be taken seriously by the court, because it is directly related to the legal basis of the judgment itself.

negative reminder: regarding every argument in the part of "the opinion of this court" as a mistake, and regarding the discretion of the judge as a judgment in violation of the law, usually will not succeed, and will dilute the truly powerful reasons. Applications for retrial should be "few and accurate" and not "many and miscellaneous".

The demarcation between 5. retrial and "another prosecution"

The retrial and another prosecution are two mutually exclusive paths, and the wrong choice will be in vain.

Let's start with the prohibition of repeated prosecutions. For the subject matter of the litigation that has been dealt with by the effective judgment, the parties can no longer sue separately with the same fact, the same reason, and the same request, otherwise it constitutes a repeated prosecution, and the court will rule that the prosecution will not be accepted or rejected. In other words, if a request has been "judged" by an effective judgment, you cannot reverse the case by reopening the case, you can only go through a retrial.

Let's talk about the situation that can be sued separately. Joint property of husband and wife not dealt with at the time of divorce, found after divorce Conceal, transfer, sell, destroy, squander If the joint property is forged and the joint debt is forged in an attempt to encroach on the property of the other party, the other party may file a separate lawsuit to request the division of the joint property of husband and wife again. This kind of "missing property" is a typical object of "separate litigation" and need not and should not be forced to retry.

The core judgment standard is: the problem you want to solve, is the original judgment "wrong", or the original judgment "not dealt with at all"? If the judgment is wrong-go for a retrial; if not dealt with-you can sue in another case. The two are clearly demarcated and cannot be mixed. This is also the place where the parties in family cases are most likely to take detours: many so-called "disobedience", the essence is that there is a piece of property that has not been tried at all in the original trial, but the prosecution in another case is faster and more economical.

After the 6. retrial is rejected: find the procuratorate

After the retrial application was rejected, the relief was not exhausted immediately, and there was also the procuratorate. However, we should remember the order of "court correction first, procuratorate supervision second.

Article 209 of the Civil Procedure Law stipulates that in one of the following three cases, the party concerned may apply to the people's procuratorate for procuratorial suggestion or protest: The people's court rejects the retrial application; the people's court fails to make a ruling on the retrial application within the time limit; the retrial judgment or ruling has obvious errors.In other words, you cannot go directly to the procuratorate at the outset; typically, you must first file a request for retrial with the court and obtain one of the aforementioned outcomes. The procuratorate shall not be subject to this restriction if it discovers an error and initiates supervision on its own.

The people's procuratorate shall examine the application of the party concerned within three months, and make a decision of putting forward or not putting forward procuratorial suggestions or protestations. It should be noted that the party concerned shall not apply to the people's procuratorate for procuratorial advice or protest again on the same matter. Procuratorial supervision has the characteristic of "one-off", and the materials should be thoroughly discussed at one time.

to which level of procuratorate? Generally, it is put forward to the people's procuratorate at the same level that made the effective judgment; if the procuratorate considers it necessary to protest after examination, it shall be reported to the people's procuratorate at the next higher level to protest to the people's court at the same level. According to Article 215, if the people's procuratorate decides to protest against the judgment, ruling or mediation statement of the people's court, it shall make a protest; the people's court that accepts the protest shall make a retrial ruling within 30 days from the date of receiving the protest, and if it meets the legal circumstances, it may be submitted to the people's court at the next lower level for retrial, except after the people's court at the next lower level. For cases decided to be retried in accordance with the trial supervision procedure, the people's court will generally rule to suspend the execution of the original judgment. This is one of the consequences pointed out in Article 218.

The materials given to the prosecutor should be "few and clear": use a one-page clue map (character relationship, property context), a refined legal application opinion, and a set of evidence classified according to the reasons to help the prosecutor understand where the whole case is wrong in the shortest time.

Common Causes of Retrial in 7. Matrimonial and Family Cases

Retrial proceedings in matrimonial and family law cases have their own set of “frequently cited grounds.”

Property division omission. The divorce judgment or mediation statement makes no mention of a property, a deposit, or an equity. This kind of problem should first distinguish whether it is "missed judgment" or "not dealt with": if the original trial omitted the claim and the judgment was not dealt with, it may fall into the legal retrial cause; If there is no claim or involvement in the divorce, another case can be filed.
The "new discovery" of concealed property ". One party hides and transfers common property during divorce, and the other party finds out many years later. This includes both the "re-division" claim granted by the Marriage and Family Section of the Civil Code, and may also involve the evidence of the facts found in the original judgment, which should be combined with the time of discovery and the statute of limitations.
False Litigation. Husband and wife conspire or collude with others to embezzle property or evade taxes and fees by falsifying debts or conciliation. Once an effective criminal judgment is found to constitute a false lawsuit, the possibility of the relevant civil judgment being revoked or revised will increase significantly, and the procuratorial organs often intervene in supervision in such cases ex officio or on application.
Procedural violation. Inadequate service of process resulting in default judgments, failure to duly notify the parties to participate in the litigation, and an unlawful composition of the trial panel are all grounds that merit assertion in family law retrial proceedings.

With two real retrial judgments, you can see how this path goes.In a post-divorce property dispute, one party sued for the division of the company's equity under the name of the former spouse many years after the divorce. The retrial court held that he should know clearly about the spouse's shareholding at the time of divorce, the divorce agreement is binding on both parties, and the claim has exceeded the corresponding time limit. Finally, the second instance judgment is revoked and the first instance result is maintained-this reminds you to "claim in time and pay attention to the time limit". In another case, in order to avoid house transfer taxes and fees, the parties colluded with others to handle divorce property division mediation in the form of false litigation. Because a criminal judgment was found to constitute a false lawsuit, after the procuratorial organ proteked the lawsuit, the court brought up the original mediation to cancel the original mediation -- this shows that "once the false lawsuit is settled, the relief is often very strong".

8. Practice Recommendations and Material List

put the above rules down to the operational level and give several practical suggestions.

Keep and organize the original trial file. The indictment, the pleadings, the catalogue of evidence, the transcripts of court hearings and the verdict of the first and second instance shall be bound in chronological order. The retrial review mainly depends on "what is in the original trial file". The clearer the file is, the more tenable your claim is.
Apply for marking in time. After receiving the judgment documents, apply to the court as soon as possible to consult and copy the trial record and the evidence of both parties to check whether the original trial has really "checked" the facts you want to claim now.
Focus on the deadline. Six months is the hard time limit, and the starting point is the effective date. Only the four categories of new evidence, forged evidence, the legal documents on which the judgment was based were revoked and changed, and the judicial personnel violated the law in their duties, are counted from the "date when they knew or should have known. Mark each milestone on the calendar.
Calculate the costs accurately. The retrial does not stop the execution, and the cycle is too long, and the rate of revision is not high; whether to retrial depends on the value of the disputed property, the hardness of the evidence and your expectations of the result, not just emotions.
First, determine the path. If the claim can be brought in a separate action, prioritize filing it separately; if a retrial is required, focus on the statutory grounds for retrial; if the court has already rejected the application, promptly refer the matter to the procuratorate—do not repeatedly raise the same issue in the same application.

List of materials (which can be prepared by comparison when submitted to the court or procuratorate): application for retrial or application for supervision; judgment documents and effective certificates of the first, second and each retrial; identity documents, subject qualification materials, power of attorney; evidence materials and evidence catalogue sorted according to legal reasons; clue diagram (relationship between people and property flow); opinions on the application of law; confirmation of service address; if a false lawsuit is involved, a criminal judgment document in force is attached.

9. Frequently Asked Questions (Six Questions)

Question 1: I did not appeal the first-instance judgment—can I still apply for a retrial?Sure. Failure to appeal does not affect your right to apply for a retrial; however, you must submit the application to the next higher-level court within six months after the judgment takes effect.

Question 2: Can the divorce itself be overturned through a retrial?Generally not. The law explicitly stipulates that judgments and mediation statements regarding the dissolution of a marriage that have already taken legal effect may not be subject to a retrial application. However, matters such as property division and child custody may still be addressed through a retrial or by filing a separate lawsuit.

Question 3: If new evidence has emerged, can I still file an application even though six months have already passed?If the case falls under statutory circumstances such as “new evidence is sufficient to overturn the original judgment,” a request may be filed within six months from the date you knew or should have known. However, you must provide a written statement indicating when you became aware of the matter and submit the corresponding evidence.

Question 4: If a retrial application has been rejected, can another retrial application be filed?No. After the court has rejected a request for retrial, if the party again applies to the court for retrial, such application is generally no longer accepted as a retrial case. At this time, the proper course of action is to apply to the People’s Procuratorate for a procuratorial recommendation or to file a protest.

Question 5: Can a retrial and the filing of a separate lawsuit proceed concurrently?Try not to. The two cases address different issues, and a repetitive lawsuit will be dismissed. First, determine whether the original judgment was erroneous or simply left unresolved, and then proceed accordingly.

Question 6: Will an application submitted to the People’s Procuratorate definitely be accepted?Not necessarily. The People’s Procuratorate shall, within three months, review the case and decide whether to issue a prosecutorial recommendation or file a protest; moreover, the parties may not reapply on the same matter. Whether your application will be accepted depends on whether you meet the prerequisite conditions and whether your supporting documents are complete.

10. Practical Legal Insights

In the face of the judgment that has already come into effect, the most taboo thing is to submit the application for retrial based on a "I am not satisfied" -- retrial is an error correction procedure, not another lawsuit. The court will only start when you hit the legal cause, instead of rehearing the truth. Three things should be done before starting the operation: to confirm whether the original trial has been completed; if there is no appeal after the first instance, the judgment has already taken effect and only a retrial can be applied for; Put the effective date on paper and postpone it for six months. This is the hard time limit that must be submitted in most cases. Only in a few cases, such as new evidence, forged main evidence, and revocation of legal documents based on the judgment, will the judgment be calculated separately; figure out what you're really fighting about. If the goal is merely to rectify the division of property or the child custody arrangements, the path may be broader than overturning the entire judgment—while the portion dissolving the marriage is generally not subject to re‑trial, there remains room for reconsideration with respect to the issues of property and children.

After deciding to pursue a retrial, the focus shifted from “making rational arguments” to “finding critical flaws.” Whether the key evidence submitted by the other party that year has not been cross-examined or forged, whether you have applied for court investigation and evidence collection for objective reasons and have been ignored, and whether there is any deviation in the applicable law in the original trial, these are the fulcrum that can pry the procedure. Organize the materials into a table of contents following the format “subject—evidence—corresponding page number,” and submit them all at once to avoid being rejected due to incomplete documentation. If the submission to the higher court is rejected, or if the court fails to review it within the time limit, it will consider applying to the procuratorate for procuratorial advice or protest. However, the order of "first court, then procuratorate" cannot be reversed, and leapfrog or reversal will often be blocked back. You should also pay attention to the timing of submission; most applications have strict deadlines, and the longer you delay, the more disadvantaged you will be.

There is another option that is often overlooked: rather than endlessly prolonging the retrial process, it may be more efficient to first determine whether the claim can be resolved through a separate lawsuit. Jointly owned property that was overlooked during the divorce and discovered only afterward can be subject to a separate lawsuit for division; there is no need to necessarily seek to overturn the original judgment. Clarifying the nature of your claim often saves time compared to stubbornly pursuing a “retrial.” In practice, I have seen many people devote all their efforts to retrial proceedings, only to miss more favorable opportunities to present evidence and the starting point for statutory limitations in a separate property dispute. If you must proceed with both concurrently, be sure to clearly delineate the deadlines and evidentiary priorities for each track, so that delays in one do not derail the other, and avoid repeatedly investing resources in an application that is unlikely to move forward.

Summarized in one sentence:First assess the time limit, then determine the procedural path; cases that can be handled separately should not be retried; for those that must be retried, focus on the statutory grounds. After the court rejects the application, promptly turn to the procuratorate.Disagreement with a final judgment is never something that can be resolved simply by “repeating one’s arguments”; rather, it must be addressed step by step through the legal channels provided by law. The parties in Ningbo should also make good use of local channels: submit materials to the corresponding intermediate and grass-roots court filing windows, reflect the supervision application through the 12309 platform of the procuratorial organ, and call the 12348 public legal service hotline to understand before taking action in case of unclear procedural problems. Only by clarifying the timeline, the list of required documents, and the order of remedies can you lay a solid foundation for success.