Should we appeal if we lose the first instance? Lawyer Chen Kaiwei outlines the different thresholds in the Civil Procedure Law for applying for retrial and returning the second instance judgment

Losing the first instance does not mean there is no hope, but the second instance and retrial are two completely different doors. The second instance revision or remand depends on whether there are any flaws in the factual determination or legal application of the first instance. The appeal period is only 15 days from the date of delivery of the judgment; Retrial is an extraordinary relief after the second instance, which is applied to the higher-level court. The deadline is generally 6 months, and it must comply with the statutory circumstances listed in Article 211 of the Civil Procedure Law. Choosing the wrong path will result in wasted time and litigation costs. Lawyer Chen Kaiwei (Guangdong Zhiming Law Firm) repeatedly reminds in practice: first determine where the first trial went wrong, and then decide whether to appeal or apply for retrial after it takes effect.

Once the 15 day appeal period has passed, the judgment will take effect, and a retrial cannot be initiated at any time

Many parties, upon losing a lawsuit for the first time, have the initial reaction of "I'll think about it again", only to think about it and end up passing the deadline. The appeal period for civil first instance judgments is within 15 days from the date of service of the judgment, and the appeal period for rulings is within 10 days, in accordance with Article 171 of the Civil Procedure Law. This deadline is a fixed period, and unless there are legal reasons such as force majeure, the court will not extend it for you. The delivery methods of grassroots courts in Shenzhen are now very diverse, including electronic delivery, mail delivery, and public notice delivery. The appeal period for public notice delivery starts from the expiration of the public notice period, and many people do not even know that they have been "delivered".

After the appeal period, the judgment takes effect, and the remaining path is a retrial. The application for retrial should generally be submitted within 6 months after the judgment or ruling takes legal effect, in accordance with Article 212 of the Civil Procedure Law. These six months are not for you to slowly collect evidence, but for you to organize materials around the statutory grounds for retrial. In practice, we generally suggest taking a photo of the delivery receipt on the day of receiving the judgment, and marking the last day of the appeal period in red on the calendar. Don't wait for the lawyer to urge you.

The second trial is not about replaying, it only focuses on whether there are any errors in the first trial

Many people think that the second trial is a 'second first trial', where new evidence and new arguments can be presented. This understanding has a significant deviation. The scope of the second instance trial is generally limited to the appeal request, based on Article 175 of the Civil Procedure Law. That is to say, requests that you did not raise in the first instance are generally ignored in the second instance; The evidence you did not submit in the first instance should be explained in the second instance, otherwise it may not be accepted.

There are only four possible outcomes of the second trial: upholding the original verdict, changing the verdict in accordance with the law, remanding for retrial, and resolving the case through mediation. The premise for changing the verdict and returning the case is that there were indeed errors in the first instance in determining the facts or applying the law. For example, if the first instance wrongly determined the validity of a key contract or reversed the allocation of the burden of proof, this is a legal application issue that can be directly corrected in the second instance. If the basic facts of the first instance are not clarified, such as missing the parties involved or failing to cross examine key evidence, the second instance is more likely to be remanded for retrial. Sending back for retrial does not mean you win, it's just going back to the first instance and going through it again, and the time cost needs to be included. The Shenzhen Intermediate People's Court and Guangdong Provincial High Court have been quite strict in their approach to remanding cases for retrial in recent years, and it is not something that can be easily remanded.

What is the difference in the threshold between changing the second instance verdict and remanding for retrial

The threshold for changing the judgment is "clear determination of facts, but incorrect application of law" or "incorrect determination of facts", based on Article 177 (1) (2) and (3) of the Civil Procedure Law. The threshold for remanding for retrial is "unclear basic facts" or "serious violation of legal procedures", based on the third and fourth items of the first paragraph of the same article. The difference between the two is that changing the verdict is for the second instance to determine the result themselves, while returning it is for the first instance to re-examine.

In practice, the most easily overlooked aspect for parties is the "serious violation of legal procedures". For example, if the judge who should have recused himself in the first instance did not recuse himself, if the case that should have been heard was reviewed in writing, or if the evidence for the cross examination was not organized, all of these are considered procedural violations. Once confirmed, the probability of being remanded is not low. But procedural issues need to be clearly raised during the second instance trial, and supported by materials such as trial transcripts and service records. It's useless to just talk about them.

The more than ten statutory circumstances for retrial cannot be established simply by saying 'I think the judgment was wrong'

Retrial is an error correction procedure, not a third instance. Article 211 of the Civil Procedure Law lists more than ten reasons for retrial, including the existence of new evidence sufficient to overturn the original judgment, the main evidence used to determine the facts in the original judgment being forged, the lack of cross examination of the main evidence, errors in the application of the law, illegal composition of the trial organization, and deprivation of the parties' right to debate. You must include yourself in one or more of the items and submit corresponding evidence when applying for a retrial.

The application for retrial in Shenzhen is generally submitted to the higher-level court, that is, the application for the first instance effectiveness of the Intermediate People's Court to the Provincial High Court, and the application for the first instance effectiveness of the grassroots court to the Intermediate People's Court. After receiving it, the court will form a collegial panel for review, and the review period is generally three months, in accordance with Article 215 of the Civil Procedure Law. This 3-month extension is possible, but it requires approval from the dean. There are three types of review results: ruling for retrial, ruling for rejection, and ruling for termination of review. The proportion of retrial rulings, according to data released by courts nationwide, has always been low, and Shenzhen is no exception.

Is there a way out if the retrial application is rejected

If the application for retrial is rejected, theoretically, one can also apply to the procuratorate for prosecutorial advice or protest, based on Article 219 of the Civil Procedure Law. But the procuratorate also has conditions for accepting the application, usually when the court rejects the retrial application, fails to make a ruling on the retrial application within the prescribed time, or when there are obvious errors in the retrial judgment or ruling. This path is narrower and has a longer cycle, not a regular option.

So when we make a plan for the parties involved, we will put the second instance and retrial on the same timeline: during the appeal period, priority will be given to evaluating the second instance; After the appeal period, re evaluate the reasons for retrial. The legal fees, litigation costs, and time costs of the two paths are different and cannot be discussed together. If you are dealing with a property, inheritance, or partnership dispute, you can first take a look at the three pitfalls of Shenzhen property inheritance that we have previously sorted out. When the lawsuit reaches your suspicion in 2026, there are some procedural nodes that are similar to the second instance deadline mentioned here.

When should we appeal, when should we admit and then proceed with a retrial

The criteria for judgment are actually not complicated: whether there are any offensive points in the factual determination and legal application of the first instance judgment. If the first instance misjudges the probative value of a key piece of evidence or uses legal provisions incorrectly, appeal is the preferred option because the second instance can directly change the verdict, which is the most efficient. If the first instance only resulted in insufficient evidence leading to your defeat, and you have no new evidence, the probability of appealing and changing the verdict is low. At this time, the litigation costs and time account need to be calculated.

There is also a situation where you lose in the first instance, but the loss is not significant, such as if the amount is not large and the appeal fee plus legal fees may exceed the disputed amount, then you need to weigh it. We usually suggest that the parties involved first conduct a review of the reasons for losing the case, marking every unfavorable sentence in the judgment, and corresponding evidence and laws one by one. This review is done, whether to appeal or retrial, the answer is basically out. When the litigation and arbitration team of Guangdong Zhiming Law Firm handles such second instance and retrial cases, the first step is to conduct a review without discussing the costs first.

The three-month review period for retrial can be extended, but it requires the approval of the dean

The review period for retrial is three months, starting from the date the court receives the application for retrial. This deadline is not absolute. If there are special circumstances that require an extension, it shall be approved by the President of this institution. In practice, for difficult and complex cases that require transfer or waiting for the results of other related cases, extension is quite common. What the parties can do is to regularly communicate the progress with the presiding judge or clerk, but do not rush too frequently, as too much urging may affect the impression.

During the retrial review period, the original judgment generally does not suspend execution unless the court rules to suspend execution. Many people don't know this, thinking that if they apply for a retrial, they can refuse to repay the money or vacate the house, only to become anxious after being forcibly executed. According to Article 216 of the Civil Procedure Law, the execution of judgments and rulings shall not be suspended during the retrial review period. So when applying for a retrial, if there is a lot of execution pressure, it is necessary to simultaneously consider executing a settlement or providing guarantees.

The preparation of materials for second instance and retrial has completely different focuses

The appeal statement of the second instance should revolve around the question of "where was the mistake in the first instance", with a focus on the specific paragraphs, corresponding evidence, and legal basis of the first instance judgment. The application for retrial should be written around "which statutory grounds for retrial are met", with the focus on incorporating the facts into specific items of Article 211 of the Civil Procedure Law. The writing logic of the two is different, and changing the title of the complaint cannot be used as a retrial application.

In terms of evidence, new evidence can be submitted in the second instance, but the reasons for overdue submission must be explained; The requirement for "new evidence" in retrial is stricter, generally referring to newly discovered evidence after the end of the original trial, or evidence that cannot be obtained due to objective reasons in the original trial. If you are dealing with a partnership dispute, you can refer to Shenzhen Partnership Entrepreneurship, which has a valuation of over 100 million yuan over the past 3 years, but my equity has been diluted to less than 5%. The evidence organization here overlaps with the evidence reinforcement logic of the second instance. More practical articles on litigation and arbitration can be found in the litigation and arbitration section.

Lawyer Chen Kaiwei (Guangdong Zhiming Law Firm) has been practicing in Shenzhen for many years and has handled many cases of second instance revision and retrial review. If you are stuck at the node of "whether to appeal after losing the first instance", it is recommended to start withShenzhen Civil and Commercial Litigation LawyerConduct a review after losing the case, and then decide on the path. The consultation hotline of Guangdong Zhiming Law Firm is 0755-25986969. Basic facts and deadline issues can be discussed over the phone first. Lawyer Chen Kaiwei'sChen Kaiwei LawyerThe introduction page contains contact information and practice areas.

Disclaimer: The content of this article is for general legal practice reference and does not constitute any legal opinion or commitment to the outcome of any specific case. Due to different case situations, the litigation strategy and deadline calculation need to be comprehensively judged based on evidence, jurisdictional courts, and the latest judicial interpretations. It is recommended to consult a practicing lawyer for specific disputes.