An appellate judgment has taken effect — but if it was rendered on serious errors, or new facts emerge that could overturn the entire case, the law still opens two special “back doors”: cassation and retrial review.
This article analyzes the grounds for protest under cassation (Article 326) and retrial (Article 352 of the 2015 Civil Procedure Code) — the only two routes to review an effective judgment.
1. The place of cassation and retrial
Under Article 313.6 of the 2015 Civil Procedure Code, an appellate judgment takes legal effect from the date of pronouncement — litigants can no longer appeal. Cassation and retrial are special procedures, not a “third trial level”: there is no public trial hearing as in first-instance/appellate proceedings; instead, effective judgments are reviewed upon a protest lodged by an authorized person.
2. Cassation: reviewing errors in the adjudication process
Under Article 325, cassation is the review of an effective court judgment or decision against which a cassation protest has been lodged. The three protest grounds in Article 326.1:
Ground 1 — Conclusions inconsistent with objective facts: the judgment’s conclusions do not match the objective facts of the case, harming litigants’ lawful rights and interests. Example: the file contains full payment records yet the judgment concludes the buyer never paid.
Ground 2 — Serious procedural violations: serious violations of procedure prevented litigants from exercising their procedural rights and obligations, leaving their lawful rights unprotected as required by law. Example: invalid service of summons depriving a party of the right to attend trial.
Ground 3 — Errors in applying the law: errors in legal application produced an incorrect judgment or decision, harming litigants and infringing public interests, State interests, or third-party rights. Example: applying an expired legal instrument to decide the case.
3. Retrial: reviewing because new facts emerged
Under Article 351, retrial reviews an effective judgment or decision because of newly discovered facts that could fundamentally change its content — facts unknown to the court and parties when the judgment was rendered. The four protest grounds in Article 352:
- Important new facts: newly discovered material facts of the case that the parties could not have known during proceedings;
- False expert/interpreter conclusions or forged evidence: grounds proving an expert’s conclusion or interpreter’s translation untrue, or evidence forged;
- Deliberate misconduct by procedural officers: judges, people’s assessors or procurators deliberately distorting the case file or deliberately rendering unlawful conclusions;
- The underlying instrument annulled: a criminal, administrative, civil or other judgment/decision on which the court relied has been annulled.
4. The core distinction
Cassation reviews errors already present in the file that the court assessed or applied wrongly — the truth existed but was mishandled. Retrial reviews because of new truth emerging after the judgment took effect — something nobody could have known at trial. Confusing the two leads to invoking the wrong protest grounds.
5. The litigant’s role: petition, not protest
A widely misunderstood point: litigants have no right to lodge protests for cassation or retrial. That right belongs to authorized persons (the Chief Justice of the Supreme People’s Court, the Procurator-General, etc.). Upon discovering grounds, a litigant files a petition/request asking the authorized person to consider lodging a protest (Article 328). A well-grounded petition with convincing new evidence is the key.
6. Frequently asked questions
Q: Can I seek cassation of a first-instance judgment that nobody appealed?
A: Yes, if it has taken legal effect (appeal period expired with no appeal) and one of the Article 326 grounds exists. Cassation applies to all effective judgments and decisions, not only appellate ones.
Q: What if forged evidence is discovered after the judgment took effect?
A: That is a retrial ground (Article 352): proven forgery of evidence. Gather proof of the forgery and file a retrial petition.
Q: Does filing for cassation suspend the judgment immediately?
A: No. A petition alone does not suspend enforcement. The judgment is only reviewed once an authorized person issues a protest decision.
Discovered grounds to review an effective judgment? Contact us for an assessment.
This article was prepared by the FLAW AI Legal Council. Content is pending QA Council review before submission for approval; information is for reference only and does not replace legal advice for your specific case.
