THE PROCESS OF DRAFTING AND SUBMITTING AN APPEAL PETITION AGAINST THE JUDGMENT OR DECISION ISSUED BY THE FIRST-INSTANCE COURT
Currently, many judgments and decisions of the first-instance Court are not issued under the law or the objective circumstances of the case and affect the legitimate rights and interests of the involved parties. In these cases, the involved parties and their lawful representatives have the right to carry out the procedures for appealing against the judgment or decision issued by the first-instance Court to request the appellate Court to retrial the lawsuit under the law.
For a valid appeal, the involved parties should note the time limit for appeal and draft the appeal petition under the regulations of law. In fact, there are some cases of overdue appeal, invalid appeal since the involved parties do not understand the appeal procedures, which affects their rights and interests. Therefore, we would like to share this legal article to guide you on the process of drafting and submitting an appeal petition against the judgment or decision issued by courts.
1. Drafting the Appeal Petition:
1.1. The form and contents of the Appeal Petition:
A valid Appeal Petition must comply with the regulations of applicable law on its form and contents. Accordingly, the involved parties and their legal representatives (“Appellant”) can draft an Appeal Petition by themselves that meets the form and contents specified in the law, or use the Appeal Petition Form No. 54-DS (Issued attached with Resolution No. 01/2017/NQ-HDTP dated 13 January 2017 of the Council of Judges of the Supreme People’s Court).
Please refer to Appeal Petition Form No. 54-DS as follows:
1.2. Some issues to note in the process of drafting the Appeal Petition:
(i) Determining the scope and grounds for appealing against the judgment or decision issued by the first-instance Court and accurately state and focus on these contents in the Appeal Petition.
After submitting the Appeal Petition, the appellant has the right to amend or supplement appealed contents. This amendment or supplement will not be limited by the scope of the initial appealed contents if the time limit for appeal has not expired. However, when the time limit for appeal expired, the above amendment or the supplement must not exceed the scope of the initial appealed contents. Therefore, to avoid wasting time and prolonging the proceedings, and falling into the case exceeding the scope of the initial appeal, the appellant should thoroughly prepare the appealed contents and present them in the Appeal from the beginning.
(ii) In case the involved parties or their legal representatives authorize other individuals/organizations on behalf of them to appeal, the Appeal Petition must entirely contain the information of the authorizing party and the authorized party and be enclosed with a certified or authenticated Power of Attorney, unless such Power of Attorney is made at the Court in the presence of the Judge or the person assigned by the Chief Justice.
(iii) The appellant has to submit additional documents and evidence (if any) enclosed with the Appeal Petition. Therefore, in case the appellant collects additional documents and evidence, he/she should provide them to the Court to prove his/her appeal request is grounded and lawful.
2. Submission of the Appeal Petition
2.1. The time limit for submission of the Appeal Petition
The time limit for an appeal against the first-instance court’s judgment is 15 days as from the date of judgment pronouncement; for an appeal against the first-instance court’s decision to suspend or terminate the case settlement is 07 days counting from the day on which the involved parties receive the decision. In case the involved parties or their lawful representatives are absent from the Court trial or absent when the Court pronounces the judgment with good and sufficient reason, the time limit for an appeal is counted from the date the judgment is handed to them or publicly posted up.
Accordingly, the appellant should note the time limit to avoid the appeal from being overdue and being rejected by the Court.
2.2. Methods of the Appeal Petition submission
The Appeal Petition must be sent to the first-instance Court issuing the appealed judgment or decision. The appellant can submit the Appeal Petition attached with documents and evidence to the Court by 03 following methods: (i) Direct submission at the Court, (ii) Sending to the Court by post, or (iii) Sending through e-portal of the Court (if any).
2.3. Results of the Appeal Petition submission
After receiving the Appeal Petition, the first-instance Court is responsible for granting a written certification of receipt of the Appeal Petition to the appellant. After that, the Court must examine the validity of the Appeal Petition. Depending on each case, the Court will issue one of the following decisions: (i) Requesting the appellant to further explain the reasons therefor and provide materials and/or evidence (if any) in case the appeal is overdue; (ii) Requesting the appellant to amend or supplement the Appeal Petition; (iii) Carrying out procedures of accepting and reviewing the judgment; or (iv) Returning the Appeal Petition in case the appellant is not entitled to appeal or he/she fails to submit another Appeal Petition or fails to amend or supplement the Appeal Petition at the request of the Court or fails to pay the Court fee advances within the specified time limit.
In case the valid Appeal Petition is accepted by the Court, if the appellant does not fall cases of being exempt from or having not to pay, he/she must pay the Court fee advances and submit the receipts of such payment to the first-instance Courts within 10 days as from the day on which the courts’ notification of payment of the fee advances for appeal is received so that the Appeal Petition is accepted by the Court.
Above are our legal shares on the process of drafting and submitting an Appeal Petition to the first-instance Court. We hope this article can help you better understand the appeal process to protect your legitimate rights and interests. We will also continue to analyze and share experiences on the procedure of civil lawsuit settlement at the appeal stage after the Appeal Petition is submitted and accepted to settle by the Court. Please continue to follow us.
TNTP & Associates International Law Firm