Chương XV: Tính chất của xét xử phúc thẩm và kháng cáo, kháng nghị bản án, quyết định của Toà án cấp sơ thẩm

Chapter XV

NATURE OF APPELLATE TRIAL AND THE APPEAL OR PROTEST AGAINST JUDGMENTS, DECISIONS OF FIRST-INSTANCE COURTS

Article 242.- Nature of appellate trial

Appellate trial means the re-trial by the immediate superior court of a case with the first-instance court's judgment or decision having not yet taken legal effect and being appealed or protested against.

Article 243.- Persons having the right to appeal

The involved parties or their representatives, agencies or organizations initiating lawsuits shall have the right to lodge their appeals against judgments or decisions of the first-instance courts to suspend or stop the resolution of cases in order to request the immediate superior courts to conduct re-trials according to the appellate procedures.

Article 244.- Application for an appeal

1. An application for an appeal must have the following principal contents:

a) Date on which the application is made;

b) Full name and address of the appellant;

c) The section of judgment or decision of the first-instance court, which has not yet taken legal effect and is appealed.

d) The reason(s) for appealing and the appellant's claims.

e) Signature or fingerprint of the appellant.

2. The appeal application must be filed with the first-instance court which rendered the first-instance-judgment or decision being appealed against; where the appeal application is filed with the appeal court, the appeal court must transfer the application to the first-instance court for carrying out necessary procedures and sending the case file to the appeal court as provided for in Article 255 of this Code.

3. The appeal application must be accompanied with additional documents and/or evidences, if any, to prove that their appeals are well grounded and lawful.

Article 245.- Time limit for an appeal

1. The time limit for an appeal against the first-instance court's judgment is fifteen days as from the date of judgment pronouncement; for the involved parties being absent from the court sessions, the time limit for an appeal shall be counted from the date the judgment is handed to them or publicly posted up.

2. The time limit for an appeal against the first-instance court's decision on suspending or stopping the resolution of the case is seven days counting from the date the person who has the right to appeal receives such decision.

3. In cases where the appeal application is sent by post, the appeal date shall be calculated on the basis of the sending postmark date printed on the envelope.

Article 246.- Examination of appeal applications

1. After receiving the appeal applications, the first-instance courts must examine their validity as provided for in Clause 1, Article 244 of this Code.

2. In case of overdue appeals, the first-instance courts shall request the appellants to further explain the reasons therefor and produce documents and/or evidences, if any, to prove that the reasons for late submission of their appeal applications are plausible.

Where the appeal applications are made not in compliance with the provisions of Clause 1, Article 244 of this Code, the first-instance courts shall request the appellants to amend or supplement them.

Article 247.- Overdue appeals

1. Appeals that are not made within the time limit stipulated in Article 245 of this Code shall be the overdue appeals. After receiving overdue appeal applications, the first-instance courts must forward the applications and the appellants' explanation of the reasons for late filing the appeals, documents and/or evidences, if any, to the appeal courts.

2. Within ten days after receiving the overdue appeals and the accompanying documents and/or evidences, the courts of appeal shall set up a Panel consisting of three judges to consider the overdue appeals. The Panel may issue decisions to accept or not to accept the overdue appeals and clearly state the reasons therefor in such decisions. The appeal courts must send their decisions to the late appellants and the first-instance courts. If the appeal courts accept the overdue appeals, the first-instance courts shall carry out procedures stipulated in this Code and forward the case files to the appeal courts.

Article 248.- Notification of payment of appeal court fee advance

1. After accepting the valid appeal applications the first-instance courts must notify the appellants thereof so that they pay the appeal court fee advances as required by law, if they do not fall cases of being exempt from, or having not to pay, the appeal court fee advances or appeal court fees.

2. Within ten days as from the date of receiving the courts' notifications of payment of the appeal court fee advances, the appellants must pay the court fee advances and submit to the first-instance courts the receipts of the payment of court fee advances. If past this time limit the appellants fail to pay the appeal fee court advances, they shall be deemed to have given up their appeals, unless they have plausible reasons therefor.

Article 249.- Notice of appeal

1. After receiving the valid appeal applications, the first-instance courts must notify such in writing to the procuracies of the same level and the involved parties.

2. Persons who are notified of the appeals shall be entitled to send to the appellate courts documents expressing their opinions on the appealed matters. Such documents shall be included in the case files.

Article 250.- Protest by procuracies

The head of the procuracy of the same level or the immediate superior level shall be entitled to protest against the first-instance court's judgments or decisions to suspend or stop the resolution of the cases in order to request the immediate superior court to directly settle the cases according to the appellate procedures.

Article 251.- Protest decisions of procuracies

1. The procuracies' protest decisions must be made in writing and contain the following principal contents:

a) Issuing date and serial number of the protest decision;

b) Name of the procuracy that issues the protest decision;

c) Protested sections of the first-instance court's judgments or decisions which have not yet taken legal effect.

d) Reason(s) for such protest and the procuracy's claims.

e) Full name of the person signing the protest decision and seal of the procuracy issuing the protest decision.

2. The protest decisions must be immediately sent to the first-instance courts that have rendered the protested judgments or decisions so that such courts shall carry out procedures stipulated by this Code and send the case files to the appeal courts as provided for in Article 255 of this Code

3. Enclosed with the protest decisions shall be additional documents and/or evidences to prove that the procuracies' protests are well grounded and lawful.

Article 252.- Time limit for a protest

1. The time limit for making a protest against the first-instance court's judgment shall be fifteen days for the procuracy of the same level and thirty days for the immediate superior procuracy, counting from the date of judgment pronouncement. In cases where the procurators do not attend the court sessions, the protest time limit shall be counted from the date the procuracy of the same level receives the judgment.

2. The time limit for making a protest against the first-instance court's decision on suspending or stopping the resolution of the case shall be seven days for the procuracy of the same level and ten days for the immediate superior procuracy, counting from the date the procuracy of the same level receives such decision.

Article 253.- Notification of protests

1. The procuracy issuing a protest decision must promptly send the protest decision to the parties relating to the protest.

2. Persons who are notified of the protest shall be entitled to send to the appellate court documents expressing their views on the protested matters. Such documents shall be included in the case files.

Article 254.- Effects of an appeal or a protest

1. The appealed or protested parts of the first-instance judgment or decision shall not be enforced, except where the law requires the immediate enforcement thereof.

2. The first-instance courts' judgments, decisions or parts thereof, which are not appealed or protested against, shall take legal effect as from the date of expiry of the appeal or protest time limit.

Article 255.- Forwarding case files, appeals, protests

The first-instance courts must forward to the appeal courts case files, appeals and/or protests and the accompanying documents, evidences within five working days from the date:

1. The appeal or protest time limit expires if the appellant must not pay the appeal court fee advance;

2. The appellant submits to the first-instance court the receipt of appeal court fee advance payment.

Article 256.- Modifying, supplementing, withdrawing appeals, protests

1. Before the opening of appeal court sessions or at appeal court sessions, the appellants may modify or supplement their appeals and the procuracies issuing protest decisions may modify or supplement their protests provided that the modification or supplementation must not go beyond the scope of the original appeals or protests, if the appeal or protest time limit has expired.

2. Before the opening of appeal court sessions or at appeal court sessions, the appellants may withdraw their appeals and the procuracies issuing protest decisions or the immediate superior procuracy may withdraw their protests.

The appeal courts shall stop the appellate trial of parts of the cases against which the appellants have withdrawn their appeals or the procuracies have withdrawn their protests.

3. The modification, supplementation or withdrawal of appeals or protests before the opening of appeal court sessions must be made in writing and sent to the appellate courts. The appeal courts must promptly notify the involved parties of such modification or withdrawal.

The modification, supplementation or withdrawal of appeals or protests at court sessions must be recorded in the minutes of the court sessions.