Main tasks and practical skills
- The CrPC does not regulate which Judge can preside over a trial of cassation review. The practice shows:
- The trial of cassation review of the SPCJC or the Judicial Committee of the provincial People’s Court is presided over by the Chief Justice or the authorized Deputy Chief Justice;
- The trial of cassation review of the Central Military Tribunal or the Criminal Court of the SPC is presided over by one of its three Judges, as assigned by the Chief Justice of the Central Military Tribunal or Chief Justice of the Criminal Court of the SPC.
- A representative of the Procuracy of the same level must attend the trial of cassation review. The Court shall summon the convicted, defence counsel, persons having related rights and obligations if it deems necessary (Article 280 of the CrPC).
- If assigned by the Chief Justice to prepare a presentation on the case at the trial of cassation review, the Judge must prepare the presentation in accordance with Item 1 of Article 282 of the CrPC.
- As provided in Item 2 of Article 282 of the CrPC, the order and procedure for a trial of cassation review shall be as follows:
- The presiding Judge opens the trial and checks the presence of persons who conduct the proceedings and persons summoned to the trial. Noting that if any person summoned to the trial is absent with or without a proper reason, the Panel of Cassation Review may proceed with the trial;
- The CrPC does not say so but it is necessary to have a Court Clerk to record the minutes of the trial;
- A member of the Panel of Judicial Review addresses the presentation on the case;
- The persons summoned to the trial (if present) present their views on the protest and the case;
- A representative of the Procuracy presents their view on the protest and the case;
- Members of the Panel of Judicial Review confer and present their opinions (during this course, the representative of the Procuracy may conjointly confer and present their opinions if they want);
- After the members of the Panel of Judicial Review confer and present their opinions, the representative of the Procuracy presents the view of the Procuracy on the resolution of the case;
- The presiding Judge presents the issues to be decided and the members of the Panel of Judicial Review vote.
- Determination of scope of cassation review
As provided in Article 284 of the CrPC, the Panel of Cassation Review must consider the whole case, regardless of the contents of the protest. However, only when the judgment or decision has taken legal effect for not more than 1 year may the consideration be conducted against the convicted person’s interests.
- Determination of jurisdiction of the Panel of Cassation Review.
- Jurisdiction of the Panel of Cassation Review are provided in Articles 285, 286 and 287 of the CrPC. Pursuant to appropriate provisions of Articles 286 and 287, the Judge shall make decision as follows:
+ Dismissing the protest and upholding the legally enforceable judgment or decision, as provided in Item 1 of Article 285 of the CrPC;
+ Quashing the legally enforceable judgment or decision as provided and permanently suspending the case in Item 2 of Articles 285 and 286 of the CrPC;
+ Quashing the legally enforceable judgment or decision for the purpose of re-investigation or re-trial, as provided in Item 3 of Articles 285 and 286 of the CrPC.
- Noting that when the Court quashes a part of a legally enforceable judgment, it should write: “... quash Judgment No ... dated ... (date) ... (month) ... (year) of the Court ... with respect to the part… of the decision ...”, not write “... quash part of Judgment...”
- Where the judgment or decision being protested is quashed for re-investigation or re-trial and the Court finds it necessary to keep the accused under detention, the Panel of Cassation Review shall issue a decision on detention until the Procuracy or Court accepts the case again.
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