When must an appeal or cassation court dismiss a retrial application by ruling after a lower court has already delivered a retrial judgment?
General information · Not legal advice
Material to check
In a practice file we read the certified copy of the appeal or cassation dismissal that made the first- or second-instance judgment final, the retrial application as filed against both that dismissal judgment and the judgment it made final, and the retrial judgment delivered by the first-instance or appeal court.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
One reading follows the provision as written on each side: where a retrial application has been made against an appeal-dismissal final judgment and the first-instance judgment it made final, and the first-instance court has delivered its retrial judgment, the appeal court shall dismiss the retrial application by ruling; where a retrial application has been made against a cassation-dismissal judgment and the first- or second-instance judgment it made final, and the first-instance or appeal court has delivered a retrial judgment, the cassation court shall dismiss it by ruling.
Another reading marks the reach of the duty: it is triggered only once the lower court has delivered its retrial judgment, so before that event the provision attaches no dismissal duty, and it leaves open what the higher court may do when no lower retrial judgment yet exists.
Your judgment
If the retrial judgment in the file concerns a judgment different from those the retrial application was directed at, how could the papers show which judgment the dismissal duty reaches?
PRO SE does not make this decision or keep a case record on this public site.When to reconsider
We look at this again if the provision is amended to change which lower court's retrial judgment triggers the dismissal, or if a court decision explains what a higher court may do when no lower retrial judgment yet exists.