Why can the paid execution fee still be "reneged on"? Lawyer explains the four key points in detail, Liu Xin disagrees with the second instance judgment and applies for retrial compensation | Jiang Qiulian | Judgment

On June 13th, Jiang Ge's mother, Jiang Qiulian, posted on Weibo that she had received a notice of response from the Shandong Provincial High People's Court. The notice showed that Liu Nuanxi, due to a dispute over your right to life, was dissatisfied with the civil judgment of Lu 02 Min Zhong 1497 made by the Qingdao Intermediate People's Court on December 30, 2022, and applied for retrial to this court. This court has filed a case for review.

According to previous media reports, on December 30, 2022, the second instance verdict of the life dispute case between Jiang Ge's mother Jiang Qiulian and Liu Nuanxi Liu Xin was announced, and Liu Xin was ordered to compensate Jiang Qiulian for nearly 700000 yuan in various losses.

In January, Liu Xin launched a fundraising campaign for nearly 700000 yuan in compensation on social media platforms, stating that he was experiencing online violence and wanted to commit suicide at one point. I hope to give myself time and space to gather the compensation. She said, "If anyone is willing to help me, I will thank you and take a note. It's a great kindness, and I hope to have the opportunity to repay it." As of January 3rd, hundreds of people have rewarded the article.

On January 4th, Sina Weibo announced that it had immediately disabled the tipping function of its account and restricted withdrawals. On that day, Liu Xin's Sina Weibo account's personal page displayed, "Due to violating community conventions, the user is in a permanent ban."

On January 10th, the Chengyang District Court in Qingdao stated that after investigation, it was found that Liu Xin's compensation has not been received yet. Jiang Qiulian applied to the Chengyang District Court for compulsory execution, and the review will be completed within 7 working days. Subsequently, according to the China Enforcement Information Disclosure Network, Liu Xin has become the subject of enforcement, with a target amount of 719365 yuan. The filing date was January 11th, and the enforcement court is the People's Court of Chengyang District, Qingdao City.

On June 1st, Jiang Qiulian announced on Weibo that Liu Nuanxi and Liu Xin had fully paid compensation for their infringement of Jiang Ge's right to life. According to the public website, on the morning of June 12th, the establishment and donation ceremony of the "Jiangge Special Education Fund" was held at the Charity Association of Jimo District, Qingdao. Jiang Qiulian donated 696000 yuan to the Shuguang Public Welfare Volunteer Association in Jimo District and fully donated the compensation.

Focus 1

After the verdict was pronounced in the second instance, Liu Xin had already paid the execution money. Why can he still apply for a retrial against the verdict?

According to Fu Jian, the director of Henan Zejin Law Firm, although the case has been finally tried in the second instance and the parties have also paid the execution fee, if there are procedural violations during the trial process, new factual evidence can overturn the original judgment, or if it meets the conditions of other application for retrial laws, the parties have the right to apply to the higher court for retrial.

The application for retrial shall not affect the execution of the second instance judgment. That is to say, although Liu Xin filed a retrial against the second instance judgment, he still needs to pay compensation according to the result of the second instance judgment.

According to Article 212 of the Civil Procedure Law, a party applying for a retrial shall submit it within six months after the judgment or ruling takes legal effect; there are items 1, 3, Article 207 of this law In the case of the circumstances specified in Item 12 and Item 13, it shall be submitted within six months from the date when it knows or should know. The judgment of the second instance will be made on December 30, 2022. According to the law, Liu Xin can file a retrial before June this year.

Focus 2

Under what conditions can a retrial be initiated after the second and final review? Under what circumstances will a retrial application be rejected?

Fu Jian stated that applying for retrial also requires certain conditions to be met, such as insufficient main evidence for determining facts in the original judgment or ruling; There is new evidence sufficient to overturn the original judgment or ruling; The people's court violates legal procedures and may affect the correct judgment or ruling of the case; If there is indeed an error in the application of law in the original judgment or ruling; During the trial of the case, the judges engaged in acts of corruption, bribery, embezzlement, and wrongful judgment. If the parties meet any of the above conditions, they may initiate a retrial.

So under what circumstances will the application for retrial be rejected? Lawyer Fu Jian stated that the court will not accept the following situations. Judgments and mediations on the termination of marital relationships that have already taken legal effect; In cases where the parties transfer the creditor's rights confirmed by the effective judgment or mediation agreement, and the assignee of the creditor is dissatisfied with the judgment or mediation agreement and applies for retrial; Cases that are subject to non litigation procedures such as special procedures, supervisory procedures, public notice procedures, bankruptcy procedures, etc; Cases where the application for retrial has been rejected; Adjudication judgments and rulings; Cases in which the People's Procuratorate makes a decision not to make a retrial recommendation or protest on the application of the parties; A case in which a party applies for retrial of a civil mediation agreement that has already become legally effective by a higher people's court.

Focus 3

If the amount of compensation for retrial is reduced or not compensated, does Jiang Qiulian need to refund the execution fee?

The second instance verdict of Jiang Ge's mother Jiang Qiulian v. Liu Xin's right to life dispute case was announced, and Liu Xin was ordered to compensate Jiang Qiulian for nearly 700000 yuan in various losses. According to Article 233 of the Civil Procedure Law of the People's Republic of China, if there are errors in the judgments, rulings, and other legal documents based on which the execution is carried out and are revoked by the people's court after the execution is completed, the people's court shall make a ruling on the property that has been executed, ordering the person who obtained the property to return it; Refusal to return shall be enforced.

Fu Jian believes that if the retrial is changed to lower the compensation amount or no compensation is given, then Jiang Qiulian needs to refund the compensation. If the court changes the judgment and reduces the compensation amount, Jiang Qiulian should refund the excess execution fee collected.

Focus 4

Jiang Qiulian has donated all the execution funds. If the judgment is changed, does the recipient need to return the donation?

Jiang Qiulian has donated nearly 700000 yuan to the public for educational assistance. Fu Jian explained that although the Civil Code stipulates that the donor has the right to revoke the gift before the transfer of property, gift contracts with public welfare and moral obligations such as disaster relief and disability assistance cannot be revoked.

Therefore, the recipient can independently decide whether to refund a portion of the donation amount. Jiang Ge's mother has already donated the money, and the ownership of the money has been transferred. The recipient cannot be asked to return it.