Main tasks and practical skills:
- Persons who have the right to protest on the basis of procedure for cassationreview (Article 285 of the CPC)
- The Chief Justice of the Supreme People’s Court and the Chief Procurator of the Supreme People’s Procuracy shall have the right to protest on the basis of procedure for cassation review, except for cassation review decisions of the SPCJC;
- The Chief Justice of the provincial People’s Court and the Chief Procurator of the provincial People’s Procuracy shall have the right to protest on the basis of procedure for cassation review with respect to judgments and decisions of the People’s Court of a district within such province.
- Time limit for a protest on the basis of procedure for cassation review (Article 288 of the CPC)
- Time limit for a protest shall be three years, from the date on which the decision or judgment of the Court takes legal effect;
- With respect to civil judgments and decisions that took effect prior to the date when the CPC took effect (1 January 2005) provisions on time limit for protesting on the basis of procedure for cassation review of the procedural legal documents prior to that date should apply; specifically as follows:
+ With respect to a civil judgment or decision, or to a judgment or decision on marriage and family, time limit for a protest shall be three years, from the date when the judgment or decision takes legal effect; if the protest deems to harm no interests of the litigants, there shall be no time limit;
+ With respect to a judgment or decision on business or commerce, or an economic judgment or decision, time limit for a protest shall be nine months, from the date when the judgment or decision takes legal effect;
+ With respect to a judgment or decision on labour, time limit for a protest shall be six months, from the date when the judgment or decision takes legal effect; if the protest deems to benefit the employees, the time limit shall be one year.
- Grounds for protest on the basis of procedure for cassation review (Article 283 of the CPC)
- A legally enforceable judgment or decision of a Court may be protested upon one of the grounds as provided in Article 283 of the CPC;
- Noting that some grounds for protest under the procedure for cassation review are restricted in terms of grounds for protesting, such as a decision on recognition of litigants’ agreement can be protested on the basis of the procedure for cassation review only if there is a ground for proving that such agreement is reached by mistake, misunderstanding, threat or in contradiction with laws and social morals (Item 2 of Article 188 of the CPC). If there are any serious breaches of law (for example: serious breach of proceedings), the judgment or decision may be protested on the basis of procedure for cassation review (see Official Letter No. 218/2005/KHXX dated 29 September 2005 of the SPC);
- Noting that provisions on burden of proof and collection of evidence as provided in the CPC have basically changed in comparison with previous procedural laws, and the provision on «insufficient investigation» no longer exists.
- Discovery of legally enforceable judgments and decisions which should be reviewed under procedure for cassation review:
- Not only the litigants of the case but also other individuals, bodies or organizations shall have the right to discover any breach of the law in legally enforceable judgments and decisions and notify it in writing to persons who have the right to protest (Item 1 of Article 284 of the CPC);
- Where a breach of the law in a legally enforceable judgment or decision is discovered, the Court or the Procuracy shall be obliged to notify it in writing to persons who have the right to protest (Item 2 of Article 284 of the CPC);
- In the spirit of Article 5 of the CPC regarding right of litigants to decide and dispose, and Article 296 regarding scope of cassation review, despite the fact that different people shall have the right to discover breaches, a protest shall be lodged only upon request or complaint by a litigant, except where the litigant is unable to lodge such complaint or the judgment or decision infringes the State interests or interests of a third person who is not a party to the case;
- Functional persons and divisions who assist persons having the right to protest may be composed of Judges (who assists the Chief Justice). But such Judges who participate in the protest shall not be a member of the Appellate Trial Panel, in order to ensure the objectiveness and accuracy of the hearing.
- Scope of a protest shall decide the scope of hearing on the basis of cassation review; therefore, a protest must not only state one or a certain number of breaches or errors of the protested judgment or decision. It must state all the breaches or errors of such judgment or decision; the protestant under cassation review has the right to alter or supplement the decision on such protest within time limit for protests or to withdraw part or the whole of the protest prior to or during the trial of cassation review.
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