Chương XXIII Bộ luật Tố tụng Hình sự 2003: Tính chất của xét xử phúc thẩm và quyền kháng cáo, kháng nghị

Chapter XXIII: NATURE OF APPELLATE TRIAL AND RIGHTS TO APPEAL AND PROTEST

Article 230.- Nature of appellate trial

Appellate trial means the re-trial of the cases or the review of first-instance decisions by immediate superior courts when the first-instance judgments or decisions in such cases are appealed or protested against before they become legally valid.

Article 231.- Persons entitled to appeal

Defendants, victims and their lawful representatives shall have the right to appeal against first-instance judgments or decisions.

Defense counsels shall have the right to appeal in order to protect the interests of minors or persons with physical or mental defects.

Civil plaintiffs, civil defendants and their lawful representatives shall have the right to appeal against part of the judgments or decisions, which is related to damage compensation.

Persons with interests and obligations related to the cases and their lawful representatives shall have the right to appeal against part of the court judgment or decisions, which is related to their interests and obligations.

Defense counsels of the interests of minors or persons with physical or mental defects shall have the right to appeal against part of the court judgments or decisions, which is related to the interests and obligations of the persons whom they protect.

Persons who are declared not guilty by the courts shall have the right to appeal against part the first-instance judgments declaring them not guilty regarding the reasons for such declaration.

Article 232.- Protests by procuracies

The procuracies of the same level and the immediate superior procuracies shall have the right to protest against first-instance judgments or decisions.

Article 233.- Procedures for lodging appeals and protests

1. Appellants must send their written appeals to the courts which have conducted first-instance trial or to the courts of appeal. If the defendants are under temporary detention, the superintendence boards of the detention centers must guarantee the defendants to exercise their right to appeal.

Appellants may also present their appeals directly to the courts which have conducted first-instance trials. The courts must make minutes of such appeals as prescribed in Article 95 of this Code.

2. The procuracies of the same level or immediate higher procuracies shall lodge written protests, clearly stating the reasons therefor. Written protests shall be addressed to the courts which have conducted first-instance trials.

Article 234.- Time limits for lodging appeals and protests

1. The time limit for lodging appeals is fifteen days after the date of pronouncement of judgments. For defendants or involved parties absent at the court sessions, the time limit for lodging appeals is counted from the date the copies of the judgments are handed to them or posted up.

The time limit for the procuracies of the same level to lodge protests is fifteen days and for immediate higher procuracies is thirty days, counting from the date of pronouncement of the judgments

2. If written appeals are sent by post, the date of such appeals shall be the date of the postmarks affixed by the sending post offices on the envelops. Where written appeals are sent via the superintendence boards of the detention centers, the date of such appeals shall be the date the superintendence boards of the detention centers receive such written appeals.

Article 235.- Late appeals

1. Late appeals may be accepted if plausible reasons can be given.

2. The courts of appeal shall set up trial panels each consisting of three judges to consider the reasons for late appeals. Such trial panels shall have the right to decide to accept or reject late appeals.

Article 236.- Notification of appeals or protests

1. Appeals and protests must be notified in writing by the courts of first instance to the procuracies of the same level and participants in the procedure within seven days after their receipt.

2. Persons notified of the appeals or protests shall have the right to send their written opinions on the contents of such appeals or protests to the courts of appeal. Their opinions shall be included in the case files.

Article 237.- Consequences of appeals and protests

1. Parts of the judgments, which are appealed or protested against, shall not be executed, except for the cases prescribed in Clause 2, Article 255 of this Code. When the whole judgments are appealed or protested against, the whole judgments shall not be executed.

2. The courts of first instance must send the case files and appeals or protests to the courts of appeal within seven days after the expiry of the time limit for lodging appeals or protests.

Article 238.- Supplementation, change and withdrawal of appeals or protests

1. Before the opening of or during the appellate-court sessions, the appellants or procuracies shall have the right to supplement or change their appeals or protests, provided that such supplementation or change must not aggregate the situation of the defendants; or to withdraw part or the whole of their appeals or protests.

2. In cases where the whole appeals or protests are withdrawn at the court sessions, the appellate trial must be ceased. First-instance judgments shall become legally valid from the date the courts of appeal issue decisions to cease the appellate trial.

Article 239.- Appeals and protests against decisions of the courts of first instance

1. The time limit for the procuracies of the same level to protest against decisions of the courts of first instance is seven days and for immediate higher procuracies fifteen days, counting from the date of issuance of such decisions.

2. Decisions of the courts of first instance to suspend or cease the cases may be appealed against within seven days, counting from the date the persons with the right to appeal receive such decisions.

Article 240.- Validity of courts’ first-instance judgments or decisions which are not appealed or protested against

The courts’ first-instance judgments and decisions and parts thereof which are not appealed or protested against, shall become legally valid from the expiry date of the time limit for lodging appeals or protests.

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