Highlights of civil procedure law
Part I Introduction
Chapter 1 Civil Disputes and Their Relief Mechanisms
Section 2 Non-litigation Remedies for Civil Disputes
1. Civil parties negotiate and resolve disputes peacefully on their own
2. Various social groups and organizations persuaded to settle disputes
3. Relevant departments handle disputes according to their powers
4. The people's mediation committee mediates disputes
5. The Arbitration Committee Arbitrates Disputes
Chapter II Civil Procedure Law and Civil Procedure Jurisprudence
Section 1 Civil Procedure Law
2. Legislative Model of Civil Procedure Law
(1) Code-based legislation and case-based legislation
The former emphasizes the systematicness, orderliness, logic and codification of laws; the latter mainly establishes rules through precedents
(2) Centralized legislation and decentralized legislation
The former means that the civil procedure is formulated by the central state power organ; the latter means that the central state power organ, other central state organs, and local state power organs all have the right to formulate the civil procedure.
(3) Legislation combining trial and enforcement and legislation separated from trial and enforcement
The former means that civil trial procedures and civil execution procedures are stipulated in a unified civil procedure law; the latter means that civil trial procedures and civil execution procedures are stipulated in different laws
(4) Synchronous and asynchronous legislation of procedures and entities
The former means that the country formulates the Civil Code and the Civil Procedure Code at the same time; the latter means that the country formulates the Civil Code and the Civil Procedure Code at different times
5. Effectiveness of my country's Civil Procedure Law
(1) Time effect
That is, the applicable time frame of the Civil Procedure Law, and the Civil Procedure Law has retrospective effect
(2) Space effect
That is, the scope of space applicable to the Civil Procedure Law applies to the territory of the People's Republic of China, including the territory, territorial sea, airspace and extended space of the territory, and does not apply to Hong Kong, Macao and Taiwan
(3) Effect on people
That is, the scope of the applicable subjects of the Civil Procedure Law, that is, all Chinese citizens, legal persons and other organizations that conduct civil litigation in my country, as well as foreigners, stateless persons or persons of unknown nationality, and foreign enterprises and organizations that conduct litigation in my country, enjoy the Judicial immunity except
(4) The effectiveness of the matter
That is, the scope of applying the Civil Procedure Law to handle cases
A. The scope of applying the "Civil Procedure Law" to try cases
B. Scope of Enforcement Cases Applicable to the Civil Procedure Law
C. Scope of other matters dealt with under the Civil Procedure Law
Chapter Four Civil Procedure Legal Relationship and Civil Procedure Mode
Section 1 Legal Relationship in Civil Procedures (Civil Procedure Legal Relationships Only if one party is the court)
1. Trial legal relationship refers to the civil procedure law, the court
Social relations with judicial rights and judicial obligations regulated by laws such as organic law
2. Litigation legal relationship
The social relationship between the parties and other litigation participants, which is regulated by the Civil Procedure Law, the Lawyers Law and other litigation regulations, with the content of litigation rights and litigation obligations
3. The subject of the legal relationship in civil litigation
(1) People's Court
A specialized agency exercising judicial power on behalf of the state
(2) Parties
Including plaintiff, defendant, third party, co-litigant and litigation representative
(3) All litigation participants
Including attorneys ad litem, witnesses, appraisers, inquests and translators
(4) People's Procuratorate
The people's procuratorate may file a protest under certain conditions
4. Contents of legal relationship in civil proceedings
The Litigation Rights and Litigation Obligations of Subjects of Civil Litigation Legal Relations
5. The object of the legal relationship in civil proceedings
The case to which the litigation rights and obligations of the subject of the legal relationship in civil litigation are directed, that is, a civil case
Section 2 Civil Litigation Model (sub-heading)
1. Authoritarianism
Proceduralism of powers, proceduralism of powers of litigation, the conduct of civil proceedings and the collection of litigation materials and evidence are done by judges
The advantages are:
(1) Litigation efficiency is high
(2) It has natural advantages in realizing substantive justice
2. Party doctrine
In civil litigation, the parties occupy the core position, and the parties are responsible for the determination of litigation claims, the collection and proof of litigation materials and evidence. The parties even have the right to choose the application of the law. The judge is in a neutral position in the lawsuit. He never takes the initiative to interfere with a certain party, but fully respects the will of the parties.
The advantages are:
(1) It can reflect the rights of the parties, and the right of litigation enjoyed by the parties can restrict the judicial power of the court
(2) Procedural fairness and procedural justice can be fully realized
(3) The freedom of the parties can be displayed in a wider range
Part II General
Chapter V People's Courts in Civil Procedures
Section 1 Overview of the People's Courts
The people's court refers to the state organ responsible for exercising judicial power in the state institutional system
The people's courts independently exercise judicial power in accordance with the law and are not subject to interference by administrative organs, social organizations and individuals
2. The organizational system of the people's courts
The people's courts are composed of the Supreme People's Court, local people's courts at various levels, and specialized people's courts. Local people's courts at various levels are set up according to administrative divisions, and specialized courts are set up according to needs. Local people's courts at various levels and specialized people's courts are subject to the supervision of the Supreme People's Court, and lower-level people's courts are subject to the supervision of higher-level people's courts
1. The Supreme People's Court is the country's highest judicial organ, exercising the country's highest judicial power according to law, while supervising the work of local people's courts at all levels and special people's courts
2. Local people's courts at various levels are divided into: basic people's courts, intermediate people's courts and high people's courts. Basic people's courts include the people's courts of counties and autonomous counties, the people's courts of cities not divided into districts, and municipal districts
3. Specialized people's courts
Courts set up in specific departments to hear specific cases according to actual needs
(1) Military Court
A. Military Court of the Chinese People's Liberation Army
B. Military courts of major military regions, services and arms
C. Grass-roots military courts
(2) Maritime Court
A special people's court established to try maritime and maritime cases of first instance for the purpose of exercising maritime jurisdiction
Section 3 Civil Trial Organization
The civil trial organization is not an internal institution of the court. It is a temporary organization for trying specific civil cases. It is usually composed of one or more than three judges or judges and people's assessors in the civil trial division of the people's court.
The adjudication committee is not a temporary organization for trying specific cases, it is an organizational form for collective leadership of the adjudication work within the people's court
2. The form of civil trial organization
(1) Single Court
The organizational form in which a judge judges a civil case on behalf of the court
A civil case to which summary procedure is applicable shall be tried by a single judge
Cases tried in accordance with special procedures shall be tried by a single judge, except for voter qualification cases or major and difficult cases, which shall be heard by a collegial panel composed of judges
(2) Collegial panel
The organizational form of collective trial of cases by more than three judges or judges and people's assessors
The number of members of the collegial panel must be singular
When performing jury duties, jurors have the same rights and obligations as judges
In civil cases of first instance, a collegial panel composed of judges and people's assessors or judges
In civil cases of second instance, a collegial panel composed of judges
The presiding judge shall be appointed by the president or the chief judge, and if the president or the chief judge participates in the trial, the president or the chief judge shall serve as the presiding judge.
Qualifications for people's assessors:
A. to uphold the constitution
B. At least 23 years old
C. Good conduct, fair and decent
D. good health
E. generally should have a college degree or above
F. Members of the Standing Committee of the National People's Congress, staff of courts, procuratorates, public security, national security, judicial administrative agencies, and practicing lawyers are not allowed to serve as
Those who are not allowed to serve as people's jurors include:
A. has been punished for a crime
B. Dismissed from public office
Chapter VI Civil Litigation Parties (Comprehensive Review)
Section 1 Overview of Parties
1. Connotation of the parties
(1) The actual litigant
In terms of procedure, any subject of litigation and its counterpart is a party, and the court needs to deal with the litigation between them
The actual litigant refers to the litigant who has the capacity to litigate, conducts the lawsuit in his own name, causes the occurrence, modification or elimination of the civil procedure, and is bound by the judgment of the court.
Characteristics of actual litigants:
A. have the capacity to litigate
The ability to enjoy civil litigation rights and undertake civil litigation obligations is the transformation of civil rights ability in litigation
B. Litigation in own name
C.具有诉讼主体的法律地位
当事人能够实施对诉讼程序的发生、变更或者消灭有重大影响的诉讼行为
D.受法院裁判拘束
当事人有义务履行法院的生效民事裁判
（2）适格当事人
即正当当事人，与案件有直接利害关系
A.基于保护自己的民事权利的声明而进行民事诉讼的当事人都属于与案件有直接利害关系的当事人
B.基于保护他人的民事权利的声明而进行民事诉讼的当事人不一定属于与案件有直接利害关系的当事人，不一定属于正当当事人
只有基于法律的规定（法定的诉讼担当）或当事人的授权（任意的诉讼担当），该人才取得当事人地位并有权在诉讼中以自己的名义主张他人的权利
法定的诉讼担当的情形：
A.为保护死者名誉，死者近亲属（三代以内直系血亲和兄弟姐妹）可作为原告
B.企业法人清算人，作出撤销企业法人决定的机构，破产管理人
C.失踪人的财产代管人
D.代位权人、撤销权人
2.当事人的更换与诉讼权利义务承担
（1）当事人的更换
在诉讼过程中，法院发现当事人不适格时，通知适格当事人参加诉讼，要求不适格当事人退出诉讼的一种活动
（2）诉讼权利义务的承担
在诉讼进行中，因发生了法定事由，一方当事人将其诉讼权利义务转移给案外人，由该案外人续行原当事人已经开始的诉讼
诉讼承担的前提条件：
A.原当事人系适格当事人
B.诉讼正在进行中
C.出现了特定的事由
D.承担者与被承担者之间存在特定的关系
引起诉讼承担的事由主要有：
A.诉讼进行中当事人死亡，由继承人或者遗产管理人承担诉讼
B.诉讼进行中，一方当事人为法人或者其他组织的民事主体资格消灭，由承受其权利义务的主体承担诉讼
C.诉讼中当事人转移其实体权利义务，可以引起诉讼承担
发生诉讼承担后，承担诉讼的新当事人应当继续原当事人已经开始的诉讼，诉讼程序继续进行而不是重新开始，原当事人所进行的一切诉讼行为，对新当事人都发生诉讼法上的效力
3.当事人的诉讼权利义务
（1）当事人的诉讼权利
A.请求司法保护
原告有起诉权，被告有答辩和反诉权；原告起诉后，有变更或者放弃诉讼请求、撤回诉讼的权利，被告有承认原告诉讼请求的权利
B.委托诉讼代理人
Each party may entrust one or two litigation representatives to conduct litigation on its behalf
C. Apply for recusal
The parties have the right to request that the judges, clerks, translators, appraisers, and inspectors who are legally withdrawn withdraw from the trial of the case or the work related to the case.
D. Gather and present evidence
The right to collect evidence by itself, the right to apply to the court to obtain evidence, take evidence preservation measures, and the right to request re-investigation, identification or inspection
E. Presentation, Examination and Argument
The right to debate, either orally or in writing
F. Choosing Mediation
G. Self-conciliation
H. Apply for property preservation or advance execution
I. File an appeal
All first-instance judgments can be appealed, and only jurisdictional objection, inadmissibility, and dismissal of the first-instance ruling can be appealed
J. Application for execution
K. Review and copy relevant materials and legal documents of this case
L. Application for retrial
(2) Litigation obligations of the parties
A. Exercising legal rights in accordance with the law
B. Observing the Order of Litigation
C. Fulfillment of effective legal documents
4. Litigation capacity
Competence for civil litigation, also known as litigant capacity, refers to the procedural law ability that a party must possess to carry out litigation, personally exercise its litigation rights and fulfill its litigation obligations. It is the legal qualification for the subject of legal relationship in civil litigation to personally implement litigation
Section 2 Third Party Litigation
1. Overview of the third party in litigation
A person who has an independent right to claim the object of litigation disputed by others, or who has no independent right to claim but has a legal interest in the outcome of the case and participates in a lawsuit that has already started
feature:
(1) Participating in a lawsuit (participation lawsuit) before the court makes a judgment on the lawsuit between others on the basis of a lawsuit between others (this lawsuit)
(2) Has all or part of an independent right to claim the object of litigation between others, or has no independent right to claim, but has a legal interest in the outcome of the case
(3) The third party participates in the lawsuit to protect its own civil rights and conduct the lawsuit in its own name
2. A third party with an independent claim
Refers to the person who participates in the litigation by making a claim as an independent entity obligee to the object of litigation between others, whether in whole or in part
(1) The basis for participating in the lawsuit
The third party with an independent right of claim declares that it has an independent right of claim against the object of action disputed by the plaintiff and the defendant. The claim of the third party will inevitably conflict with the claims of the plaintiff and the defendant
(2) Procedures for participating in litigation
Participate in litigation only on the basis of an inter-personal action, before a court has adjudicated on the inter-personal action.
In the second-instance procedure, a third party who did not participate in the first-instance procedure may apply to participate in the lawsuit and accept court mediation. If the mediation fails, the court of second instance shall rule to revoke the original judgment and remand it for retrial. During the retrial, the third person in the second trial is an ex officio participant in the retrial case, and no separate application is required
The way to join the lawsuit is "file a lawsuit"
(3) Litigation status
In the position of a party, the litigation rights and obligations are similar to those of the plaintiff
A) independence
As an independent party, it forms a litigation conflict with the plaintiff. It is the plaintiff in the participating lawsuit, and the original defendant in this lawsuit is the defendant in the participating lawsuit
B. Involvement
Its litigation status is implicated with the litigation status of the plaintiff in this lawsuit: it obtains the litigation status of a third party with an independent right to claim, on the premise that others occupy the litigation status of the plaintiff in this lawsuit; during the litigation process, the plaintiff in this lawsuit The loss of litigation status will lead to the conversion of the litigation status of the third party with independent claim
3. A third party who has no independent claim
Refers to the person who has no independent substantive rights to the subject matter of litigation between others, but only participates in the litigation of one party to protect his own interests
(1) The basis for participating in the lawsuit
A legal interest relationship with the outcome of the case should be a civil substantive law interest relationship, which is mainly manifested as an "obligatory relationship", including:
A. One party in this lawsuit loses the lawsuit, and the party believes that the responsibility for losing the lawsuit can be attributed to a third party in whole or in part
B. One party in this lawsuit loses the lawsuit, and the party believes that it can claim the right to substitute compensation against the third party
The main situations are:
A. Third Party in Subrogation Proceedings—The Debtor Can Be Listed as a Third Party
B. The third party in the right of rescission – the beneficiary or the transferee can be listed as the third party
C. Third party in case of contract assignment
a. Transfer of contractual rights - the original creditor may be listed as a third party (the debtor raises a defense against the rights of the original creditor)
b. Assignment of contractual obligations - the original obligor may be listed as a third party (the assignee raises a defense against the creditor's rights from the original obligor)
c. General transfer - the transferor can be listed as a third party (the opposite party raises a defense on the rights and obligations of the contract)
D. A guarantor in a counterclaim
In the event of a dispute over a guaranteed debt contract, the debtor files a lawsuit against the creditor, and the creditor files a counterclaim, the guarantor may participate in the lawsuit as a third party
(2) Procedures for participating in litigation
Participate in the lawsuit on the basis of the existence of the lawsuit
Compared with the participation of a third party with an independent right to claim:
In practice, the third party with an independent right of claim usually participates in the litigation during the trial of the original lawsuit, and rarely applies to participate in the second instance procedure; the third party without the independent right of claim is included in the complaint when the plaintiff sues , entering the lawsuit at the same time as the parties to this lawsuit, and participating in the second instance without exception are not uncommon
The methods are:
A. Apply for participation
案外人以口头或书面方式，主动向法院提出申请，要求以无独立请求权第三人的身份参加诉讼。实践中十分少见
B.通知参加
法院发出通知书，责令案外人以无独立请求权第三人的身份参加诉讼。被通知者有参加诉讼的义务。法院可依职权通知。
（3）诉讼地位
既非原告，也非被告，而是具有独立诉讼地位的诉讼参加人
诉讼义务主要有：
A.法院判决承担民事责任的无独立请求权的第三人在诉讼中有当事人的诉讼权利和诉讼义务，有权上诉。但该第三人在一审中，无权提出管辖权异议；无权放弃、变更诉讼请求或者申请撤诉
B.法院调解时需要确定其承担义务的，应当经第三人同意，调解书应书面送达第三人。送达前反悔的，应及时判决
C.已经确定参加诉讼后，经法院传票传唤，无正当理由拒不到庭，或者未经允许中途退庭的，不影响安静的审理
第三节 共同诉讼
1.共同诉讼概述
当事人一方或者双方为二人以上，其诉讼标的是共同的，或者诉讼标的是同一种类、人民法院认为可以合并审理并经当事人同意的，为共同诉讼
2.必要共同诉讼
当事人一方或者双方为二人以上，其诉讼标的具有共同性或者必须合一确定的牵连性，由法院合并审理的诉讼
（1）构成要件
A.当事人一方或者双方为二人以上
B.为二人以上的一方当事人的诉讼标的具有共同性
诉讼标的共同，意味着，为二人以上的一方当事人主张，他们共同享有诉讼中争议的民事权利；或者相对方认为，为二人以上的一方当事人应当共同承担诉讼中争议的民事义务
a.个体工商户、个人合伙或私营企业挂靠集体企业并以集体企业的名义从事生产经营活动的，在诉讼中，该个体工商户、个人合伙或私营企业与其挂靠的集体企业为共同诉讼人
b.在诉讼中，个体工商户以营业执照上登记的业主为当事人。有字号的，应在法律文书中注明登记的字号。营业执照上登记的业主与实际经营者不一致的，以业主和实际经营者为共同诉讼人
c.个人合伙的全体合伙人在诉讼中为共同诉讼人。个人合伙有依法核准登记的字号的，应在法律文书中注明登记的字号。全体合伙人可以推选代表人；被推选的代表人，应由全体合伙人出具推选书
d. In the case of a corporate merger, disputes arising from civil activities before the merger shall be parties to the merged company; in the case of a division of an enterprise legal person, disputes arising from civil activities before the division shall be joint litigants
e. If the business introduction letter, special contract seal, sealed blank contract or bank account is borrowed, the lending unit and the borrower shall be joint litigants
f. In a lawsuit filed due to a dispute over a guarantee contract, if the creditor claims rights against both the guarantor and the guaranteed party, the people's court shall list the surety and the guaranteed party as co-defendants; Otherwise, the people's court shall notify the guaranteed party to participate in the lawsuit as a co-defendant; if the creditor only sues the guaranteed party, only the guaranteed party may be listed as the defendant
g. In an inheritance lawsuit, if some heirs file a lawsuit, the people's court shall notify the other heirs to participate in the lawsuit as co-plaintiffs; co-plaintiff
h. If the principal and the agent bear joint and several liabilities, they shall be joint litigants
i. If the shared property rights are infringed upon by others, and some of the owners of the shared rights sue, the other owners of the shared rights shall be listed as co-litigants
C. Or the existence of the subject matter of litigation must be determined in a unified manner
a. Infringement compensation lawsuit brought by the victim against several infringers who had no intention of contacting
b. Two or more subjects with different civil obligations fail to perform their obligations in accordance with the law, resulting in indistinguishable damage to the civil rights of the same counterparty, and the victim institutes a lawsuit against two or more subjects of obligations
c. Several heirs believed that the defendant had embezzled the inheritance that should be inherited by them but had not been divided. In order to protect their respective inheritance rights, they filed relatively independent and non-contradictory claims
(2) Additional necessary co-litigants
In the necessary joint litigation, the subject matter of the litigation is the same, and the necessary joint litigants must sue, respond to or participate in the lawsuit together, and the court must jointly try and make a unified judgment. Therefore, if some necessary joint litigants do not participate in the lawsuit, additional party
A. By the court ex officio
B. Added by the court according to the application of the parties
When making an addition, the court shall notify the other parties. If the plaintiff who should be added expressly waives its substantive rights, it may not be added. If he is neither willing to participate in the lawsuit nor waives his substantive rights, he shall be added as a co-plaintiff. Hearing of cases and making judgments in accordance with the law
(3) Internal relationship
If one party to a joint action has joint rights and obligations with respect to the subject matter of the action, the litigation conduct of one of them shall be effective against the other joint litigants upon recognition by the other joint litigants; Co-litigant does not take effect
It is generally believed that explicit recognition should be required for litigation involving the disposal of substantive rights and important procedural rights, and tacit recognition should be allowed for other litigation
3. Ordinary joint action
Where one or both parties are two or more persons, the object of action is the same type, the parties agree to join the lawsuits, and the court deems that the lawsuits can be tried together
(1) Components
A. There are two or more objects of action belonging to the same category
B. Jurisdiction by the same court and application of the same procedure
C. Meet the purpose of merger
The purpose is to realize litigation economy and save judicial resources
D. The parties agree to join the trials, and the court believes that the trials can be joined
(2) Internal relationship
The litigation actions of each co-litigant are independent of each other, and the litigation actions of any co-litigant shall not be effective against other co-litigants
(3) Basic features
Compared to Necessary Class Action:
A. The objects of action of ordinary joint litigation are of the same type, and the judgment made on one of the objects of litigation is not as effective as other objects of litigation
B. There must be more than two objects of action in an ordinary joint action, but there may be only one object of action in a necessary joint action
C. Ordinary joint action is a divisible action, and necessary joint action is an inseparable action. The court must jointly try and judge the necessary joint action
Section 4 Representative Litigation
1. Overview of representative litigation
Also known as group litigation, it refers to a litigation form in which one or more parties have a large number of parties, and one or more parties are represented by one or more of them to conduct litigation and accept the resulting litigation results
(1) Scope of Application of the Representative Litigation System
A. It is generally only applicable to disputes involving more than 10 parties
B. In addition, situations where representative litigation is not suitable include: for civil compensation cases involving false statements, the court should try them in the form of separate litigation or joint litigation, and it is not appropriate to adopt the form of representative litigation
(2) The nature of the representative litigation system
A. The representative litigation system has the function of using the same litigation procedure to resolve the litigation of the majority, which reflects the commonality with the joint litigation system
The difference is that the joint action system requires all parties to jointly conduct litigation, while the representative litigation system requires only some parties to represent all parties in litigation
B. The representative litigation system has the function of exercising litigation rights and fulfilling litigation obligations through others, which reflects the commonality with the litigation agency system
The difference is that the representative is the party, and the agent is not the party; the representative is selected by the party, negotiated by the court and the party, and appointed by the court. There is no need for a specific personal relationship between the person and the represented person, and the opposite is the case between the legal agent ad litem and the represented person; the representative cannot implement paid representation, and the entrusted ad litem agent may be paid to represent
(3) The difference between the representative and the statutory litigation representative and litigation representative
A representative is created according to the representative litigation system and represents a party in litigation on behalf of a party in the same litigation status as himself
The legal representative of litigation is the main administrative person in charge of litigation on behalf of a legal person
The litigation representative is the main person in charge of litigation on behalf of other organizations that do not have legal personality
The difference is:
A. Representative objects are different
A representative represents a party in the same litigation position as himself
The legal representative represents the legal person
Representative Litigation Represents "Other Organizations"
B. The conditions for obtaining representative qualifications are different
The qualifications of a representative must: have the capacity for litigation; be a party in the same litigation position as the represented person;
The legal representative of litigation must be qualified: he is the main administrative person in charge of the represented legal person (no capacity for litigation is required)
Litigation representatives must obtain the qualifications: they are the main person in charge of the "other organization" represented (no capacity for litigation is required)
C. Representative authority is different
The representative authority of the representative shall be limited by the authorized scope of the represented party, and the other two shall not be limited
2. Elements of a representative action
(1) Elements of a representative action with a fixed number of persons
A. When suing, the specific number of parties with a large number of parties is determined
B. A large number of parties have the same or the same kind of litigation object
C. A party with a large number of parties elects two to five of them to represent all parties in the lawsuit
D. The claims brought by a large number of parties are common or belong to the same category
(2) Constituent elements of a representative action with an indeterminate number of persons
A. At the time of the prosecution, the exact number of the numerous parties is uncertain
B. A large number of parties have the subject matter of litigation belonging to the same category
C. Two to five representatives from a party with a large number of parties shall be selected in three ways according to the law
D. Claims brought by a large number of parties belong to the same category
3. Creation and authority of representatives
(1) Representative litigation with a fixed number of persons
It can only be nominated by the parties themselves, they can be jointly nominated by all, or some can be nominated by themselves, if they cannot be nominated, they can participate in the lawsuit by themselves in the necessary joint litigation, and can sue separately in ordinary joint litigation
(2) Representative litigation with an uncertain number of persons
A. Party selection
B. If it cannot be selected, the court shall negotiate with the parties
C. If the negotiation fails, the court shall appoint a representative among the parties to the lawsuit
4. Special procedures in litigation involving representatives with an uncertain number of persons
(1) Competent court
The relevant courts shall negotiate and determine, if it cannot be determined through negotiation, the jurisdiction shall be designated by the common superior court
(2) Announcement procedure
After accepting the case, an announcement can be issued to notify the obligee to register with the court, and the announcement time should not be less than 30 days
(3) Right holder registration procedure
The registrant should prove the legal relationship with the other party and the damage suffered. If the proof cannot be proved, the registration will not be granted, and a separate lawsuit can be filed. If the registration is not done without justified reasons, it will be deemed to have waived the right to litigate and will not participate in the selection of representatives, but it will not affect its enjoyment. substantive rights
(4) Electing or agreeing on a litigation representative
Selection of the parties, agreement between the court and the parties, appointment by the court
(5) The effectiveness of referees
Refereeing is expansive
The effect of adjudication is only binding on all obligees who have participated in the registration. For obligees who have not participated in the registration, the adjudication has the effect of pre-judgment, and the adjudication already made by the court on the representative lawsuit can be directly applied without making a separate adjudication. (reflection effect?)
Chapter VII Litigation Behavior (Effective, Legal and Reasonable Establishment)
Section 1 Overview of Litigation
The subject's dynamic behavior that can cause legal effects in litigation, that is, behaviors that can produce legal effects in civil litigation
Features:
1. An act usually performed by the subject of litigation
2. Must be able to cause legal effects in the procedural law
3. Its determination is not affected by the conduct of the parties before the commencement of the litigation or outside the litigation
Section 2 Litigation Behavior of the Parties
The general term for the litigious conduct of a party in respect of a specific litigation
1. Contrary behavior
The legal effect of the lawsuit is directly produced, that is, the behavior that leads to a certain legal effect should be checked for validity
2. Taking effect
Acts intended to give rise to court activity should be examined for legality and justification
Chapter 8 Litigation Agent (conceptual comparison, non-emphasis)
Section 1 Overview of Legal Representatives
1. The concept of civil litigation attorney
According to the law or entrusted by the parties, within a certain scope of authority, in the name of the parties, a person who replaces or assists the parties in civil proceedings
The comparison between civil litigation attorney and civil attorney
(1) Different tasks
The latter is to complete civil acts for the parties and realize their substantive rights and obligations; the former is to replace and assist the principal to implement litigation acts
(2) Different legal basis
The latter is based on civil substantive law; the former is based on civil procedure law
(3) The way to complete the task is different
The latter is to establish a certain civil legal relationship with a third party in the form of a contract;
(4) The agency scope is slightly different
The latter cannot represent debts and torts of a personal nature; the former can represent all cases
The Comparison Between Civil Litigation Agent and Criminal Defender
(1) Different legal nature
The former is a civil case; the latter is a criminal case
(2) The legal basis for litigation is different
The former is civil procedure law and civil substantive law; the latter is criminal procedure law and criminal substantive law
(3) Different responsibilities
The former is to safeguard the lawful rights and interests of the principal; the latter is to present materials and opinions on innocence, minor crime, mitigation, or exemption from criminal responsibility based on facts and laws.
(4) Different scope of services
The former can represent the plaintiff and the third party; the latter can only provide defense for the defendant and the suspect
2. Characteristics of civil litigation attorneys
(1) Should have the capacity for litigation
(2) Litigation activities are always carried out in the name of the principal
(3) Activities should be carried out within the scope of the litigation agency’s authority
(4) The final consequences of the litigation shall be borne by the principal
(5) An agent ad litem can only represent one party in litigation in the same case
Section 2 Classification of Litigation Agents
1. Legal agent ad litem
According to the direct provisions of the law, a person who represents a party without litigation capacity in a civil lawsuit
(1) Features:
A. The power of agency is based on the direct provisions of the law
B. The objects represented by the statutory agent ad litem are limited to citizens who have no capacity for litigation
C. The scope of legal representatives ad litem is specially regulated by law
(2) Scope of statutory legal representatives
The guardian of a person with no capacity for civil conduct or a person with limited capacity for civil conduct is his legal representative
If the guardians shirk each other, the court shall designate one of the guardians to act on their behalf
(3) Representation authority and litigation status of the statutory agent ad litem
The power of agency stems from the right of guardianship, and the content of the power of agency is basically the same as that of the right of guardianship. The legal representative ad litem shall enjoy all the procedural rights of the represented party. plenipotentiary
(4) Elimination of legal agency rights
Synchronizing with Loss of Custody
If the statutory legal representative right is extinguished, the court shall determine the legal representative ad litem in accordance with the order of guardianship qualifications
2. Appointment of an agent ad litem (emphasis on mastering)
Litigation participants entrusted by a party, legal representative, or legal representative to conduct litigation in the name of the represented party
(1) Features
A. The power of agency arises from the agreement and authorization between the principal and the principal
B. Agency authority and matters are determined by the client
C. The power of attorney is the legal basis for the agent to enter the proceedings
(2) Scope of entrusting attorneys ad litem
A. Lawyers and grassroots legal workers
B. Close relatives or staff of the parties
C. Citizens recommended by the parties’ communities, units, and relevant social groups
(3) Representation authority and litigation status of entrusted attorney ad litem
A. The authority to entrust an agent ad litem——determined by the authorization of the client
a. General Authorization
Entrust an agent ad litem to complete general litigation actions, which generally do not directly involve the client's substantive interests, such as investigation and collection, providing evidence, applying for recusal, raising jurisdictional objections, and acknowledging facts
b. Special Authorization
Entrust attorneys ad litem to complete certain important litigation actions that involve the client’s substantial interests, such as representing the parties to admit claims, waive or change claims, make reconciliation, file counterclaims or appeals
If the consignor makes a special authorization, the specific authorization items must be written, and if only full authority is written, it is regarded as a general authorization
Except for divorce cases, after the party entrusts an agent ad litem, he may not participate in the litigation in person.
B. Litigation status of entrusted attorney ad litem
Only when it conducts agency activities within the scope of authorization, can it produce the same legal effect as the litigation act carried out by the principal, and the legal consequences of its behavior also directly belong to the principal
The performance of the relative independence of the entrusted agent ad litem:
a. It has the right to express its will independently within the scope of entrusted authority
b. It has the right to refuse the unreasonable request of the client, and terminate the litigation agency relationship when necessary
c. In addition to enjoying the rights granted by the client, it also enjoys the rights conferred by law on the agent ad litem
d. During the litigation process, the court should entrust an agent ad litem to carry out litigation acts, which cannot be replaced by carrying out litigation acts against the principal
(4) Acquisition, change and extinction of entrusted litigation agency rights
The power of entrusted litigation agency is obtained based on the authorization of the client and the acceptance of the entrustment by the client, which is expressed in the power of attorney
The power of entrusted litigation agency can be changed due to entrustment (not stipulated in our country), or it can be changed due to the increase or decrease of agency authority, and the court should be notified after the change
The entrusted litigation agency right is eliminated due to the end of the litigation and the performance of the agency's duties; the death of the agent or the loss of litigation capacity; the termination of the entrustment by the client or the resignation of the agent
Chapter IX Other Litigation Participants (Understanding)
Section 1 Witness
A person who is summoned to appear in court to make a statement knowing the relevant circumstances of a civil case
Citizens and units who know everything about the case are obliged to testify in court
Persons who must not be witnesses:
(1) Persons who do not know the circumstances of the case
(2) People who cannot express their will correctly (mentally ill, young people, those who can express their will correctly can be used as witnesses)
(3) Parties
(4) Litigation attorney
(5) Judges and jurors who hear cases, clerks, appraisers, translators and inspectors who participate in the litigation activities of cases
Witness rights:
(1) The right to provide testimonies in their native language, and the right to request translation
(2) The right to apply for supplementation or correction of their own testimony transcripts
(3) Anyone who is insulted, slandered, beaten or retaliated against in other ways for testifying has the right to demand legal protection
(4) The right to demand compensation for the expenses paid for testifying in court and the normal income affected
Witness duty:
(1) If it is really difficult to testify in court, written testimony may be submitted with the permission of the court
(2) Truthfully state what you know about the case and answer questions
(3) False statements shall not be perjured
(4) Keep state secrets
Section 2 Appraiser
Professional technicians who have obtained the practice certificate of judicial authenticators, practice in judicial authentication institutions, and use specialized knowledge or skills to scientifically identify and judge specialized technical issues involved in litigation, arbitration and other activities
The authenticator is a natural person
The difference between witnesses and witnesses:
(1) Subject qualifications and scope are different
(2) The requirements for presenting content to the court are different
(3) The time of knowing the case is different
(4) Whether you can apply for recusal is different
(5) Whether the choice is different from the replacement
The difference between appraiser and expert assistant:
The role of the expert assistant is to help the parties explain and review the evidence on specialized issues
(1) The basis for participating in the lawsuit is different
(2) The specific functions are different
The appraiser must appear in court for interrogation, and the appraiser shall be subject to the relevant regulations of withdrawal
Section 3 Translators and Inspectors
A translator is a person who translates different languages and texts between court judges and parties, litigation representatives, witnesses and other relevant personnel. Methods include oral and written. legally obliged to withdraw
Inspectors are specialized staff members who investigate and verify case scenes or physical evidence, and may be judges or other staff members of the court. legally obliged to withdraw
Chapter 10 The People's Procuratorate (Understanding)
Section 1 Functions of the People's Procuratorate
The supervisory organ of the law supervises civil trials. The procuratorate is not the subject of public interest litigation, nor is it the "organs and relevant organizations prescribed by law" stipulated in Article 55 of the "Civil Procedure Law".
Chapter 11 Jurisdiction (Comprehensive Review)
Section 1 Jurisdiction Overview
1. The concept of jurisdiction
Determining the division of labor and authority for accepting first-instance civil cases between courts at lower levels and between courts at the same level
2. Establish the principles of jurisdiction
(1) The principle of facilitating litigation for the parties
(2) The principle of facilitating the exercise of judicial power by the people's courts
(3) Guarantee the fair trial of the case and safeguard the legitimate rights and interests of the parties
(4) Taking into account the division of functions and the principle of balanced workload of the people's courts at all levels
(5) The principle of combining deterministic regulations with flexible regulations
(6) Conducive to safeguarding the principle of national sovereignty
Section 2 Level Jurisdiction
1. Overview of Level Jurisdiction
Refers to the division of labor and authority between upper and lower courts for accepting civil cases of first instance according to certain standards
2. Jurisdiction of the people's courts at all levels
(1) First-instance civil cases under the jurisdiction of basic people's courts
Generally, it is under the jurisdiction of the basic people's court, except as otherwise provided by law
(2) First-instance civil cases under the jurisdiction of intermediate people's courts
A. Major foreign-related cases
B. Cases with Significant Impact in the Jurisdiction
C. Cases determined by the Supreme People's Court to be under the jurisdiction of the Intermediate People's Court
a. Patent disputes
b. Major cases involving Hong Kong, Macao and Taiwan
c. Admiralty and maritime cases
(3) First-instance civil cases under the jurisdiction of the Higher People's Court
First-instance civil cases with significant impact in the jurisdiction
(4) First-instance civil cases under the jurisdiction of the Supreme People's Court
A. Cases with significant impact across the country
B. Cases considered to be tried by this court
Section 3 Regional Jurisdiction
1. Overview of territorial jurisdiction
Also known as regional jurisdiction and land jurisdiction, it refers to the determination of the division of labor and authority of the people's courts at the same level to accept civil cases of first instance according to the different jurisdictions of the people's courts
2. General geographical jurisdiction
The plaintiff is the principle for the defendant, and the defendant is the exception for the plaintiff
(1) The principle that the jurisdiction of the court where the defendant is located is general territorial jurisdiction
A. A civil lawsuit brought against a citizen shall be under the jurisdiction of the people's court at the place of the defendant's domicile;
B. A civil lawsuit brought against a legal person or other organization shall be under the jurisdiction of the people's court at the defendant's domicile (the place where the main office is located or the main place of business)
C. Where the domiciles and habitual residences of several defendants in the same lawsuit are within the jurisdiction of two or more people's courts, each of these people's courts has jurisdiction
(2) The exception that the jurisdiction of the plaintiff’s domicile court is general territorial jurisdiction
A. Proceedings concerning identity relations brought against persons not residing in the territory of the People's Republic of China
B. Proceedings concerning identity ties against persons whose whereabouts are unknown or declared missing
C. Proceedings against persons subject to compulsory educational measures
D. Proceedings against imprisoned persons
3. Special geographical jurisdiction
special jurisdiction, the special provisions made by the law on the jurisdiction of certain cases
(1) A lawsuit filed due to a contract dispute shall be under the jurisdiction of the people's court at the defendant's domicile or the place where the contract is performed
(2) A lawsuit brought on a dispute over an insurance contract shall be under the jurisdiction of the people's court at the place where the defendant is domiciled or where the subject matter of insurance is located
(3) A lawsuit brought on a negotiable instrument dispute shall be under the jurisdiction of the people's court at the place where the negotiable instrument is paid or the defendant's domicile
(4) Litigation arising from disputes over company establishment, confirmation of shareholder qualifications, distribution of profits, dissolution, etc. shall be under the jurisdiction of the people's court at the place where the company is domiciled
(5) Litigation arising from disputes over railway, road, water, air transport and combined transport contracts shall be under the jurisdiction of the people's court at the place of origin, destination or defendant's domicile
(6) A lawsuit filed for infringement shall be under the jurisdiction of the people's court at the place where the infringement occurred or where the defendant resides
(7) A lawsuit filed for damages due to a railway, highway, water or aviation accident shall be under the jurisdiction of the people's court at the place where the accident occurred or the place where the vehicle or ship first arrived, the place where the aircraft first landed or the defendant's domicile
(8) A lawsuit filed for damages due to ship collision or other maritime damage accidents shall be under the jurisdiction of the people's court at the place where the collision occurred, the place where the colliding ship first arrived, the place where the injuring ship was detained, or the place where the defendant is domiciled
(9) The lawsuit filed for repayment of salvage expenses shall be under the jurisdiction of the people's court at the salvage place or the place where the salvaged ship first arrives
(10) A lawsuit filed for general average shall be under the jurisdiction of the people's court at the place where the ship first arrives, the place where the general average is adjusted, or the place where the voyage terminates
4. Joint Jurisdiction, Alternative Jurisdiction and Consolidated Jurisdiction
Joint jurisdiction means that according to the law, two or more people's courts have jurisdiction over the same case
Choice of jurisdiction means that when two or more courts have jurisdiction over the lawsuit, the parties can choose one of the courts to file a lawsuit
Jurisdiction priority, where two or more people's courts have jurisdiction over a lawsuit, the plaintiff may file a lawsuit with one of the people's courts; if the plaintiff files a lawsuit with two or more people's courts that have jurisdiction, the people's court that files the case first shall have jurisdiction
Combined jurisdiction, that is, implicated jurisdiction, means that the people's court that has jurisdiction over a certain case can try other cases that are involved in the case together.
Section 4 Exclusive Jurisdiction
The law stipulates that certain cases can only be under the jurisdiction of specific people's courts, and other courts have no jurisdiction, and the parties cannot agree to change the jurisdiction court
Types of Exclusive Jurisdiction:
(1) A lawsuit filed for a real estate dispute shall be under the jurisdiction of the people's court at the place where the real estate is located
(2) Litigation due to disputes arising from port operations shall be under the jurisdiction of the people's court where the port is located
(3) A lawsuit filed due to a dispute over inheritance shall be under the jurisdiction of the people's court at the place where the decedent died or where the main estate is located
Section 5 Agreement Jurisdiction
Also known as agreed jurisdiction and consensual jurisdiction, it refers to the parties agreeing on the jurisdictional court of the case before or after the dispute occurs.
Express agreement jurisdiction, written agreement
The jurisdiction of the implied agreement, the defendant responds to the lawsuit, and does not raise any objection to the exercise of jurisdiction by the court receiving the lawsuit
Conditions for domestic civil litigation to be governed by the agreement:
(1) Jurisdiction by agreement is only applicable to contract disputes and other disputes over property rights and interests
(2) Jurisdiction by agreement is only applicable to cases of first instance
(3) Mandatory behavior, in principle, in written form
（4）当事人必须在法律规定的范围内选择管辖法院，即原告、被告住所地，合同履行地，合同签订地，标的物所在地等与争议有实际联系的地点
（5）对管辖法院的协议选择，不得违反级别管辖与专属管辖的规定
第六节 裁定管辖
人民法院通过裁定形式确定第一审民事诉讼案件法院管辖的制度
1.移送管辖
移送管辖指人民法院受理案件后，发现本法院对该案无管辖权，依照法律规定将案件移送给有管辖权的人民法院审理
适用移送管辖的条件：
（1）人民法院已经受理案件
（2）受理案件的人民法院对该案无管辖权或者不能实际进行管辖
（3）接受移送案件的人民法院依法享有管辖权
受移送的人民法院应当受理，其认为受移送案件依照规定不属于其管辖的，应当报请上级人民法院指定管辖，不得再自行移送
2.指定管辖
上级人民法院以裁定方式，指定下级人民法院对某一案件行使管辖权
适用情形：
（1）在移送管辖适用过程中，受移送的法院认为自己对受移送的案件无管辖权，应当报请上级法院指定管辖
（2）有管辖权的人民法院由于特殊原因，不能行使管辖权的，由其上级人民法院指定管辖
（3）人民法院之间因管辖权发生争议，由争议双方法院协商解决不了的，报请它们的共同上级法院指定管辖
3.管辖权转移
依据上级人民法院的决定或经其同意，将某个案件的管辖权由上级人民法院转交给下级人民法院，或者由下级人民法院转交给上级人民法院
（1）上调性转移
A.上级人民法院有权审理下级人民法院管辖的第一审民事案件
B.下级人民法院对它所管辖的第一审民事案件，认为需要由上级人民法院审理的，可以报请上级人民法院审理
（2）下放性转移
确有必要将本院管辖的第一审民事案件交下级人民法院审理的，应当报请其上级人民法院批准
第七节 管辖权恒定与管辖权异议
1.管辖权恒定
某个法院对某个案件是否享有管辖权，应当以原告起诉时为准，法院在原告起诉时依法对该案取得管辖权的，该案件自始至终由其管辖，不因据以确定管辖的因素发生变化而变更管辖法院
管辖权恒定的效力及于案件诉讼的全过程，不仅及于一审程序，还及于一审以后可能进行的其他程序
2.管辖权异议
After the people's court accepts the case, the party puts forward the claim and opinion that the people's court has no jurisdiction over the case according to law
Conditions for the establishment of an objection to jurisdiction:
(1) The court has accepted the case but has not yet conducted a substantive trial
(2) Objection to jurisdiction can only be raised against the court of first instance, and no objection to jurisdiction over the court of second instance may be raised
(3) The subject of the objection to jurisdiction must be the party to the case, usually the defendant, and the plaintiff must meet the following requirements:
A. After the plaintiff discovers that he has mistakenly filed a lawsuit in a court that has no jurisdiction
B. The co-plaintiff who was added after the lawsuit started believes that the court receiving the lawsuit has no jurisdiction (does it conflict with the provisions of Article 127 of the new law during the submission of the statement of defense?)
(4) The objection to the jurisdiction shall be raised in writing during the submission of the statement of defense
(5) The legal existence of the grounds for objection to jurisdiction is the substantive condition for objection to jurisdiction
The legal effect of the objection to jurisdiction raised by the parties:
without review or without a ruling after review, the substantive trial of the case shall not be entered
The ruling on objection to jurisdiction may be appealed, and the court of second instance shall make a written ruling
The objection to jurisdiction shall be reviewed by the trial organization that hears the case. The review period is 15 days. If the objection is justified, a (written) ruling shall be transferred to the people's court with jurisdiction. If the objection is not established, the ruling shall be dismissed.
Chapter 12 Basic Principles of Civil Procedure
Section 3 Debating Principles (Possible Discussion, Combining Patterns and Debating Principles to Answer)
The principle of debate means that the parties state their own claims and opinions on the facts of the case and the disputed issues, and refute and defend each other, so as to reveal the facts of the case and provide the court with basic materials for judgment.
The purpose of establishing the principle is to protect the litigation status of the parties. Facts that have not been debated by the parties cannot be used as the basis for adjudication
1. The main contents of the debate principles include:
(1) The scope of the parties' debate includes both procedural and substantive aspects
(2) The exercise of the right of debate by the parties includes oral debate and written debate
(3) The exercise of the right to debate runs through the entire process of litigation
(4) Facts and evidentiary materials that have not been debated by the parties cannot be used as the basis for court judgments
2. Guarantee for the implementation of the principle of debate:
The core content of the principle of debate stipulated in the Civil Procedure Law of our country is that the parties have the right to debate in the lawsuit.
(1) Judges should provide opportunities for parties to exercise their right to debate
Before the hearing, oral debate is guaranteed; during the hearing, equal opportunities for debate are given
(2) Judges should properly organize and guide the parties' debate activities
No restrictions, no laissez-faire, making the debate revolve around issues
(3) During the debate, the judges should maintain a "neutral" position
Do not participate, do not interfere, and do not express biased opinions
3. The content of debate doctrine:
(1) Presentation of facts
The facts of the case as the basis of the judgment should be presented by the parties, and the judge shall not use the facts not presented by the parties as the basis of the judgment
(2) Necessity of evidence
For the fact that there is no objection between the parties, the judge should directly approve it without proof
(3) Submission of evidence
The scope of the judge's investigation of evidence should be within the scope of the evidence presented by the parties, and the judge shall not conduct evidence investigation outside the scope of the evidence presented by the parties
Section 4 Disciplinary Principles (Understanding)
The principle of disposition reflects the essential characteristics of civil disputes, and means that in civil litigation, the parties can control their procedural rights and substantive rights according to their own wishes
(1) The parties have the right to decide on procedural rights
(2) The parties have the right to independently determine the form and scope of the right remedy
Section 5 The Principle of Direct Trial and the Principle of Uninterrupted Trial
1. The principle of direct trial
When a court tries a civil case, the judges of the court receiving the lawsuit must personally preside over the trial, listen to the statements and debates of the parties, personally examine the evidence and other relevant litigation materials, and personally make a judgment according to the law (not stipulated in our country)
(1) The case must be heard by the judge of the court receiving the lawsuit, and the statements and arguments of all parties must be heard in person
(2) The facts and evidence of the case must be personally reviewed and judged by the judge presiding over the trial
(3) The judgment result of the trial of the case must be made by the judge presiding over the trial
2. The principle of uninterrupted trial
Also known as the principle of centralized trial, it means that judges should continuously and intensively organize trial debates when handling a case until a judgment is made on the case (except for Austria and the Soviet Union, it is not adopted in civil law systems)
The positive meaning is:
(1) The principle of uninterrupted trial is conducive to ensuring the correctness of court decisions
(2) The principle of uninterrupted trial is conducive to improving the efficiency of litigation
(3) The principle of uninterrupted trial helps to optimize the structure of the procedure
Section 6 Court mediation principles (very important, may discuss)
Court mediation refers to the activities in which litigants reach an agreement through voluntary negotiation and resolve their civil disputes under the auspices of court judges.
1. Features of court mediation
(1) Court mediation is a kind of judicial activity of the court, and it is an act of the court's authority
(2) Court mediation is a combination of the court's exercise of judicial power and the parties' exercise of disposition power
(3) Court mediation is a way for the people's courts to conclude civil cases
2. The difference between court mediation and out-of-litigation mediation
Mediation outside litigation includes people's mediation by people's mediation committees, civil mediation by administrative agencies, and arbitration mediation by arbitration agencies
(1) Different in nature
Court mediation is a litigation activity conducted by the court, which has a judicial nature; mediation outside the lawsuit is the operation of non-state judicial power, and has no judicial nature
(2) Different legal effects of mediation
The effective mediation agreement has mandatory effect. When the obligor fails to perform its obligations, the obligee can apply for enforcement; mediation outside the lawsuit, except for arbitration mediation, does not have the effect of enforcement
3. Significance of court mediation
(1) Court mediation is conducive to the thorough settlement of civil disputes between the parties
(2) Court mediation is conducive to improving the efficiency of dispute resolution
(3) Court mediation is conducive to resolving conflicts and promoting the unity of the parties
4. History
From "Mediation-based" to "Voluntary and Legal Mediation"
5. Scope of application of court mediation
(1) Applicable court
Courts at all levels and specialized courts can mediate in civil cases
(2) Applicable cases
All cases that are of the nature of disputes over civil rights and interests and have the possibility of mediation can be resolved by the court through mediation
Not applicable are:
A. Cases that are tried by special procedures, public notice procedures, supervision procedures, and bankruptcy repayment procedures
B. Cases confirming marriage relationship and identity relationship
C. Other civil cases that cannot be mediated according to the nature of the case
(3) Applicable procedures
Applicable to the whole process of trial procedures for resolving disputes over civil rights and obligations, including first and second instance procedures and trial supervision procedures
Mediation is not applicable to non-litigation procedures and enforcement procedures
(4) Form and method of mediation
The mediation shall be conducted openly under the auspices of the people's court. If a party applies for a private mediation, the court shall allow it. During the mediation, all parties concerned shall be present, and if necessary, mediation work may be conducted separately.
(5) Contents of the mediation agreement
Negotiate and reach a mediation agreement within the scope of the claims of the parties, but the content of the mediation agreement exceeds the scope of the claims, the court may allow
Non-Confirmed Mediation Agreement:
A. Infringement of national interests and social public interests
B. Infringe upon the interests of outsiders
C. Going against the true intention of the parties
D. Violation of prohibitive provisions of laws and administrative regulations
6. Principles that should be applied in court mediation
(1) Principle of voluntariness
Mediation must be conducted on the voluntary basis of the parties
A. Procedurally voluntary
Whether the mediation started after the application of the parties or the people's court obtained the consent of the parties
Cases that should be mediated first include
a. Marriage and family disputes and inheritance disputes
b. Labor contract disputes
c. Disputes over compensation for damages arising from traffic accidents and work-related accidents where the relationship between rights and obligations is relatively clear
d. Homestead and Neighborhood Disputes
e. Partnership agreement disputes
f. Disputes where the subject matter of litigation is relatively small
B. Physically voluntary
The content of the mediation agreement reached must be the true intention of both parties
(2) Ascertain the basic facts and distinguish between right and wrong principles
(3) Principles of legality, fairness and reasonableness
The content of the mediation agreement reached should comply with the law as much as possible
7. Correctly handle the relationship between mediation and trial
(1) The court reasonably chooses to close the case through mediation or judgment based on the specific circumstances of the case
(2) Mediation is not a necessary procedure, and the court can directly judge
(3) If the original intention is to mediate but the mediation fails or the party repents before the mediation document is delivered, the case shall be closed in a timely manner
8. The mediation paper is signed and effective, and the mediation paper is generally closed without a judgment
However, if one party requests a judgment, it can make a judgment, including: divorce cases involving persons without civil capacity, foreign-related divorce cases
Section 7 Principles of Good Faith (New Law, Possibly Short Answer)
The principle of good faith means that courts and litigation participants should act in good faith and in good faith when trying civil cases and participating in civil litigation activities.
1. Application of the principle of good faith to the parties
(1) Prohibition of repentance and contradictory behavior
(2) It is forbidden to use improper behavior to obtain a favorable litigation status
(3) Prohibition of abuse of litigation rights
Including the abuse of the right of recusal, the right of appeal, and the right of appeal
(4) Loss of rights in litigation
Suspension of litigation rights for a long time will result in loss of rights
2. Application of the principle of good faith to the court
(1) Prohibition of abuse of discretion
(2) Respect the procedural rights of the parties and create equal litigation conditions for the parties
(3) Respect the procedural subject status of the parties and prohibit the implementation of surprise judgments
Chapter 13 Basic Civil Trial System
Section 1 Collegial System (sub-heading)
The collegiate system refers to a system in which three or more odd-numbered judges form a trial organization to exercise judicial power on behalf of the people's court, to hear cases and make judgments
The sole-appointed system refers to a system in which a judge independently tries a case and makes a judgment on this basis
Cases of first instance - judges and people's assessors, or judges
Cases of second instance - judges
Remanded for retrial—a collegial panel shall be formed in accordance with the procedure of first instance
Trial supervision program—composed according to the requirements of the first instance or the second instance
The presiding judge shall be appointed by the president or the head of the division. If the president or the head of the division participates in the trial, he or she shall act as the judge.
Judgments must be made in the name of a collegial panel, which is supervised and guided by the trial committee
Comments are included in the transcript (not public), and the principle of resolution is that the minority obeys the majority
Section 2 Avoidance System (sub-heading)
The avoidance system refers to the system in which judges and other relevant personnel withdraw from the trial or litigation of a certain case in accordance with the law when encountering the avoidance situation stipulated by law
1. Applicable objects
Judges, clerks, translators, appraisers, investigators, executives and prosecutors
2. Statutory grounds for avoidance
(1) Is a party to this case or a close relative of a party or legal representative
(2) Has an interest in the case
(3) Has any other relationship with the parties or litigation representatives of the case, which may affect the fair trial of the case
(4) Where adjudicators accept guests and presents from parties or attorneys ad litem, or meet with parties or attorneys ad litem in violation of regulations, the parties have the right to ask them to withdraw
The first three items apply to objects other than judges
3. Avoidance procedure
(1) Avoid by yourself
Applicable objects file a withdrawal application
(2) Application for withdrawal
In principle, when the case begins to be heard, the reasons should be explained. If the matter is known after the case starts, it can be raised before the end of the court debate.
(3) Make a decision orally or in writing within three days, and may apply for reconsideration once. The reconsideration decision will be made within three days. Before the decision is made, the work on the case will be suspended, except for cases that require emergency measures. The reconsideration period will not stop
(4) The president shall be determined by the judicial committee, the chief judge shall be determined by the president, and other personnel shall be determined by the chief judge
4. Consequences of Violation of Avoidance
(1) Remand for retrial
(2) Statutory reasons for protest or application for retrial
Section 3 Principles of Public Trial (Short Answers, Content, Significance)
Refers to the system that the court should disclose the trial activities of civil cases in accordance with the law, except for the deliberation of the collegial panel
1. Significance of public trial
(1) Enhance the transparency of trial activities and promote judicial fairness
(2) Restrain the parties to correctly exercise their rights and fulfill their obligations, which is conducive to the normal operation of the litigation process and the court's ascertainment of the facts of the case
(3) Conducive to legal education
2. Disclosure of the content of the trial system
(1) The names of the parties, the cause of action, the time and place of the hearing shall be announced before the hearing, so that the public can observe
(2) The masses are allowed to observe and journalists report during the court session, and live broadcast or rebroadcast on TV is allowed.
(3) The judgment should be announced publicly (even if the trial is not held in public, it should also be announced publicly)
3. Types of closed hearing cases
(1) Statutory private hearing (absolutely private)
A. Cases involving state secrets
B. Cases involving personal privacy
(2) Ruling that the trial will not be open to the public (subject to the application of the parties concerned)
A) a divorce case
B. Cases Involving Commercial Secrets
Section 4 Two-Instance Final Appeal System (sub-heading)
A system in which civil cases end after being tried by at most two levels of people's courts
Both the first and second trials are factual trials
The application of the final judgment of the two trials:
1. Applicable courts - except the Supreme People's Court, other courts are applicable
2. Applicable procedures - only applicable to ordinary procedures and summary procedures other than small claims litigation, special procedures, supervision procedures, public notice procedures, and small claims procedures are applicable to the final judgment of the first instance
3. Applicable cases - litigation cases that cause civil disputes due to property relations and identity relations, non-litigation cases without civil rights and obligations disputes are not applicable
Chapter 14 Period, Date and Delivery (Comparison of Concepts)
During the first quarter
The time limit for the court, the parties and other litigation participants to carry out the litigation acts respectively
1. Types include
(1) Statutory period
The period stipulated by the law is generally a constant period, such as the period of filing a case and the period of jurisdictional objection
(2) Specified period
The period specified by the court ex officio according to the specific circumstances of the case (the time limit for producing evidence has been abolished)
(3) Constant period
The period that cannot be changed, the violation of the lawsuit, has no legal effect, including the period of appeal and application for retrial
(4) Variable period
After the period is determined, due to changes in circumstances, it is difficult to carry out litigation within the determined period, and the court changes the period upon application or ex officio, such as the period during which the copy of the complaint is served, and the period during which the defendant submits a statement of defense
(5) Agreed period
The period during which the parties reach an agreement and are approved by the court in accordance with the provisions of the law or judicial interpretation
2. Calculation of period
(1) Calculated by hour, day, month, and year, and the hour and day when the period begins are not included in the period
(2) If the last day of the expiration of the period is a holiday, the first day after the holiday shall be the date of expiration of the period
(3) When calculating the statutory period, the period of transit of the litigation documents should be deducted, and the litigation documents are not overdue if they are mailed before the expiry date
3. Delay and remedy during the period
If the party delays the time limit due to irresistible reasons or other legitimate reasons, he may apply for an extension of the time limit within 10 days after the obstacle is removed.
second feast day
The time when the parties and other litigation participants conduct litigation activities together with the court
Including the date of preparatory procedure, the date of mediation, and the date of announcement of judgment
1. The difference between date and period
(1) The period is the time limit for the subjects of the legal relationship in the civil procedure to carry out litigation activities separately, and the date is the time for the subjects of the legal relationship in the civil procedure to jointly conduct litigation activities
(2) The period can be divided into statutory and designated, and the date is generally designated by the court according to the specific circumstances
(3) There is a constant period during the period, and the dates are all changeable
(4) A period has a beginning and an end, and the term has only the beginning date, and when it ends is determined by the court
2. Change and delay of due date
(1) The change of due date refers to the designation of a new due date to replace the old due date due to serious reasons after the designated due date and before the due date begins.
(2) The delay of the due date means that the parties or other litigation participants do not carry out litigation activities on the designated due date, and if there are reasonable reasons, they may apply for another designation; otherwise, they shall bear the adverse consequences
Section 3 Delivery (fill in the blanks possible)
Service is the act of the court ex officio delivering litigation documents to the parties or other litigation participants in accordance with legal procedures and methods
1. Features
(1) The subject can only be the people's court
(2) The object is the parties and other litigation participants
(3) The content is various litigation documents
(4) It must be carried out in accordance with the legal procedures and methods
2. way
(1) direct delivery
The court sends someone to deliver directly to the person to be served
(2) Lien service
When the addressee refuses to sign for receipt, leave the litigation documents at the addressee's residence. The mediation letter shall be delivered directly, and if the person himself cannot sign for it for some reason, the designated receiver shall sign for it
(3) Delivery by mail
Mail the litigation documents to the recipient through the post office
(4) Entrusted delivery
When it is difficult to serve directly, the court in charge of handling the case entrusts other courts to serve on its behalf
(5) Forwarding and delivering
The court sends the litigation documents to the unit of the addressee for collection, and then transfers them to the addressee
A. For soldiers, through the political organs of the unit above the regiment
B. For those who are imprisoned, through prisons or reform-through-labor units
C. Those who have been taken compulsory education measures, through their compulsory education institutions
(6) Electronic delivery
Judgments, rulings, and mediation documents are excluded
(7) Delivery of announcement
By posting announcements, publishing newspapers, etc., the litigation documents are made public, and after the statutory period (60 days after the announcement) is deemed to have been delivered, the conditions are:
A. The whereabouts of the person to be served is unknown
B. It must be delivered by none of the above six methods
In addition to the delivery of the announcement, the delivery receipt is required
3. Effectiveness
(1) Substantial effectiveness - the legal consequences of substantive rights and obligations
(2) Procedural effectiveness——effectiveness in the legal relationship of litigation
Chapter XV Property Preservation and Advance Execution
Section 1 Property Preservation (sub-heading)
Compulsory protective measures taken by the court to the property in dispute or the subject matter of dispute according to the application or power of the interested party before or during the lawsuit, which may damage the rights and interests of the interested party due to the behavior of one party
1. Kind
(1) Pre-litigation property preservation
A. The situation must be urgent, and the legitimate rights and interests of interested parties will be irreparably damaged if not taken immediately
B. The applicant must apply to the place where the property to be preserved is located, the place where the respondent is domiciled, or the court that has jurisdiction over the case
C. Guarantee must be provided, if not provided, it shall be rejected
A ruling shall be made within 48 hours, and the ruling shall be adopted and executed immediately. If the applicant does not file a lawsuit or apply for arbitration within 30 days after taking the preservation measures, the preservation measures shall be lifted
(2) Applicable conditions for interim preservation
A. It must be a case with property payment content, and it is a lawsuit for payment
B. It is necessary to take property preservation, and it will be difficult to enforce the judgment in the future or cause other damage to the parties
C. The principle is based on the application of the parties, and the exception is ex officio
D. It may be ordered to provide guarantee, and if it is not provided, it shall be rejected
If the situation is urgent, it shall be made within 48 hours; if the ruling is adopted, it shall be executed immediately
2. The scope and measures of preservation
(1) Scope of Preservation
Limited to the scope of the request and property relevant to the case
(2) Measures for property preservation
A. Seizure
Mainly applicable to real estate and other properties that are not suitable for movement
B.Seizure
Mainly suitable for movable valuables
c. to freeze
Notify the relevant banks and other financial institutions to temporarily deduct the deposit, and the applicant is not allowed to withdraw or dispose of it
D. Other methods prescribed by law
a. Restricted withdrawal of due benefits
b. Prohibition of liquidation
c. Sale of preservation price, etc.
3. Preservation procedures
(1) start
Pre-litigation - application, written form of principle
Litigation - application or ex officio, written form in principle
(2) Guarantee (the amount of guarantee is equal to the amount requested for preservation)
Pre-litigation - security must be provided
Litigation - can order security
(3) Ruling and execution
If it is deemed not to meet the requirements, it shall be rejected, and the pre-litigation preservation shall be made within 48 hours, and the inter-litigation preservation shall be made within 48 hours only when the situation is urgent
If a ruling to adopt preservation measures is made, it shall be implemented immediately
(4) Release of preservation
A. The pre-litigation property preservation applicant has not filed a lawsuit or applied for arbitration within 30 days after taking the preservation measures
B. Respondent provides guarantee
C. Reasons and conditions for property preservation do not exist or have changed
D. The preserved person has fulfilled the litigation obligation
E. The applicant withdraws the application during the property preservation period
(5) Remedies for wrongful preservation
A. If there is an error in the application, the applicant shall compensate for the loss
B. If the court makes a mistake in taking preservation measures ex officio, the court shall compensate
The second section is to be implemented in advance (mastery conditions, small questions)
Before the final judgment is made, the court, according to the application of one party, rules the other party to pay the applicant a certain amount of money or other property in advance, or to stop a certain action.
1. Scope of application
(1) Claims for alimony, child support, child support, medical expenses, pensions, labor remuneration
(2) Cases requiring prior execution due to urgent circumstances
A. It is necessary to immediately stop the infringement and remove the hindrance
B. Need to stop an action immediately
C. It is necessary to immediately return the payment for the purchase of production raw materials and production tools
D. Recourse to insurance claims urgently needed for the resumption of production and business operations
2. Pre-execution conditions
(1) The rights and obligations between the parties are clear
(2) There is an urgent need for pre-execution, and failure to pre-execute will seriously affect the life or production and operation of the applicant
(3) The parties file an application
(4) The respondent has the ability to perform
(5) If the jurisdiction has not been determined after the acceptance of the case before the judgment, it cannot be executed in advance (negative condition)
3. Pre-execution procedures
(1) After accepting the case and before making a judgment, the applicant may be ordered to provide a guarantee if an application is filed with the court. If no guarantee is provided, it will be rejected
(2) For eligible applications, the written ruling will take legal effect immediately after delivery, and those who are dissatisfied can apply for reconsideration once, and the execution will not be suspended during the reconsideration period
(3) If the applicant loses the lawsuit, the benefits obtained from the advance execution shall be returned and the losses suffered due to the advance execution shall be compensated
Chapter XVI Litigation Costs
Section 2 Burden of Litigation Expenses
1. Burden principle
(1) The principle of the losing party’s burden (the most basic)
(2) Proportional Burden Principle - Applicable to Cases Partially Winning and Partially Losing
(3) The principle of the burden of negotiation between the parties - divorce cases, cases where an agreement is reached through court mediation, if the negotiation fails, the court decides
(4) The principle of plaintiff and appellant's burden - the application for withdrawing the lawsuit or withdrawing the appeal
(5) The principle of the applicant's burden - if the debtor raises objections to the supervision procedure and the supervision procedure is terminated, the reminder procedure is publicized, and the application for preservation of maritime claims and maritime injunctions before litigation in maritime cases
(6) The parties shall bear it themselves—if the court investigation ends and the court proposes to reduce the amount of the litigation claim, the case acceptance fee for the reduced amount of the claim shall be paid; if new evidence is presented during the second instance or retrial, resulting in an increase in litigation costs
(7) The court decides to bear
No appeal can be made against the court's decision on litigation costs, and a review can be applied to the president, and the review decision will be made within 15 days from receipt
2. Fee reduction and exemption
Also known as judicial aid, it refers to a relief system in which parties who are required to pay litigation fees according to law can apply to the court for postponement, reduction or exemption of payment due to financial difficulties and cannot afford or temporarily cannot afford litigation fees
Chapter 17 Compulsory Measures in Civil Litigation
Section 1 Overview of Compulsory Measures in Civil Litigation (Browse)
In the process of civil litigation, in order to ensure the normal progress of civil trials and enforcement activities, the court adopts compulsory sanctions against those who impede civil litigation
Section 2 Composition and Types of Interfering with Civil Procedures (subtitles, fill in the blanks)
1. Elements
(1) There must be an act of obstructing civil proceedings
(2) Must be intentional
(3) It must be an act performed in the course of civil litigation
(4) Must reach the statutory level of obstruction of civil proceedings
2. Kind
(1) The defendant who must appear in court refuses to appear in court without justifiable reasons after being summoned twice by the people's court
defendant who must appear
A. Defendants who are obliged to support, bring up, and bring up, and cannot find out the facts of the case if they do not appear in court
B. Legal representatives of minors who cause damage to the state, collective or others
C. During the execution process, the legal representative or person in charge of the person subject to execution must go to the court for questioning
(2) Violating court rules and disrupting court order
(3) Obstructing the collection, investigation and blocking of litigation evidence, and other obstructive acts that interfere with the proceeding of litigation
(4) Units or organizations that are obliged to assist in investigation and enforcement refuse to perform their assistance obligations
(5) Recovering debts by illegally detaining others or illegally seizing other people's property
Section 3 Types of Compulsory Measures in Civil Procedures and Their Application (subtitles, fill in the blanks)
1. Kind
(1) arrest
Applicable to the defendant who must appear in court, who refuses to appear in court without justifiable reasons after two subpoenas
(2) admonition
Applicable to minor violations of civil litigation (generally, people who violate court rules)
(3) Order to leave court
Applies to persons who violate the rules of the court
(4) Fines
Applies to persons who have seriously impeded the conduct of civil proceedings
(5) detention
Applicable to those who seriously hinder civil proceedings
If the circumstances are particularly serious and constitute a crime, criminal responsibility shall be investigated
2. Applicable
(1) Application of arrest warrant
The collegial panel or the single-term panel puts forward opinions, approved by the president, fills out the summons, signed and stamped by the summoned person, the consequences should be explained before the summons, and it is applicable to those who refuse to appear in court after criticism and education
(2) Application of admonishment
Judges can use it directly, and record it, signed and stamped by the admonished
(3) Application of order to withdraw from court
Decided by the judges of the collegial panel or the sole panel, and recorded by the clerk
(4) Application of fines
For individuals, it is less than 100,000 yuan, and for units, it is more than 50,000 yuan and less than 1 million yuan
It cannot be continuously applied to the same act, but can be re-applied to a new act
The fine must be approved by the president, and the court will issue a fine decision letter. If you are not satisfied, you can apply to the higher court for reconsideration, and make a decision within 5 days after receiving the reconsideration, and notify the lower court and the fined person of the result. Execution will not be suspended during the reconsideration period.
(5) Application of detention
Can be applied individually or in combination with fines
The period is less than 15 days
Proposed by a collegial panel or a single-term panel and approved by the president, a detention decision should be made and sent by the judicial police to the local public security organ for custody
Those who are dissatisfied can apply to the higher court for reconsideration, and make a decision within 5 days after receiving the application, and notify the lower court and the fined person of the result, and the execution will not be suspended during the reconsideration period.
Part III Litigation Evidence Theory (Comprehensive Review)
Chapter 18 Summary of Litigation Evidence
Section 1 Definition of Evidence in Civil Procedure
Various bases used to prove and confirm the facts of the case in civil litigation
1. Function
(1) Evidence is the means by which the court finds out the truth and the basis for determining the facts of the case
(2) Evidence is a weapon for parties to safeguard their civil rights and interests
(3) Evidence is the basis for making referees credible
2. Characteristics of evidence in civil proceedings
(1) Objectivity
The factual materials used as civil evidence must exist objectively (affecting the force of evidence, does not affect the ability of evidence?)
(2) Relevance
Also known as the relevance of civil evidence, it means that civil evidence must have an internal connection with the facts to be proved in the case, including direct and indirect connections (affecting the strength of evidence, does not affect the ability of evidence?)
(3) Legality
The factual materials used as the basis for the decision of a civil case must conform to the legal form of existence (obviously anti-social means, restricting people’s spiritual freedom, accompanied by civil evidence collected by means of violating personality rights has no evidentiary capacity?)
A. The form of existence is legal
B. Get legal
C. The procedures for submission and identification are legal
Section 2 Classification of Evidence in Civil Procedures
1. According to whether there is a burden of proof (objective burden of proof)
(1) This certificate
Evidence presented by a party that bears the burden of proving the facts to be proved to prove the existence of the facts it asserts
(2) Rebuttal evidence
Evidence presented by a party not bearing the burden of proof to prove that the facts claimed by the other party are not true
(3) Differentiate meaning
A. The proof requirements for this proof and counter proof are different
This evidence needs to meet the high probability standard that makes the judge feel convinced, and the counter-evidence only needs to reach the level that makes the judge feel that the truth of the facts is unclear
B. Clarify the order in which evidence is investigated
The original evidence should be investigated first, and the evidence meets the proof requirements before investigating counter-evidence
2. According to the connection between the evidence and the facts to be proved
(1) Direct evidence
Evidence that is directly related to the facts to be proved and can independently prove the facts of the case directly proves the essential facts
(2) Indirect evidence
Evidence that has an indirect relationship with the facts to be proved cannot prove the facts of the case alone, but must be used in combination with other evidence to prove the facts of the case.
3. According to different sources of evidence
(1) Original evidence
Evidence derived directly from the original source
(2) Evidence passed
Evidence derived from original evidence and obtained indirectly through copying, retelling, copying, etc., is also called derived evidence
4. According to the carrier and form of expression on which the evidence is attached
(1) Verbal evidence
Various evidences in the form of human beings and his statements, also known as authentication
(2) Physical evidence
All kinds of evidence that use objectively existing objects or the contents of objects as evidence, also known as physical evidence
Section 3 Types of Evidence in Civil Procedures
1. Documentary evidence
Evidence that proves the facts of a case by means of content recorded or expressed in words, symbols, graphics, etc.
(1) Features:
A. Prove the facts of the case with the ideological content recorded in it
B. The thought content recorded can be recognized and understood by people
C. There can be many kinds of carriers, but these carriers must be able to express certain ideological content
D. have strong authenticity and objectivity
(2) classification
A. Official documents
Official documents produced by state organs and social groups ex officio
B. Private documents
Documents that are not other than official documents generally have less probative force than official documents
C. Disposal Documentary Evidence
Documentary evidence with the purpose of establishing, changing or extinguishing a certain civil legal relationship and recording certain civil legal acts
D. Reporting Documentary Evidence
It is not intended to produce certain legal consequences, but to record or report certain facts that have occurred or are known to the producer
E. originally
original text produced by the producer
F. Original
Refers to a document that is copied or printed according to the original and has the effect of an official text
g. copy
A document made according to the full text of the original, delivered to the parties, and generally having the same legal effect as the original
H. Excerpt
A document that extracts parts of the original, original, or copy
I. Copy
A text obtained by duplicating the original, original, copy, etc. by a photocopier
2. Physical evidence
Refers to the evidence that proves the facts of the case by the existence of the object itself and its physical characteristics such as shape, weight, quality, and specifications
(1) Features
A. have strong objectivity
B. Irreplaceable
C. has better stability
D. has strong reliability
(2) The difference between physical evidence and documentary evidence
A. Documentary evidence is to prove the facts of the case by the ideological content it expresses, and physical evidence is to prove the facts of the case by its own existence and physical characteristics
B. The law has special requirements for certain documentary evidence, but no requirements for physical evidence
A specific piece of evidence may be physical evidence or documentary evidence
3. Audio-visual materials
Refers to the use of audio-visual materials reflected in audio recordings, video recordings, etc., or data and materials stored in computers to prove the facts of the case
(1) Features
A. Special carrier
B. Some audio-visual materials can vividly prove the facts of the case
C. Audio-visual materials are easy to preserve and forge
(2) Differences from documentary evidence
A. The connection is to prove the facts of the case with a certain ideological content
B. The difference is that the audio-visual materials do not simply express the ideological content with words and symbols, but express the ideological content visually and dynamically
(3) Difference from physical evidence
Physical evidence proves the facts of the case by its own existence and physical characteristics, and audio-visual materials prove the facts of the case by sounds, images, and stored materials with ideological content.
4. Witness testimony
Including unit witnesses and personal witnesses
If the unit testifies, its relevant person in charge or an insider should testify in court, and the unit should affix the official seal on the written testimony
(1) Those who cannot be witnesses
A. People who cannot express their will correctly (mental patients and young people who can correctly express the facts to be witnessed, and whose expressions are suitable for their age, intelligence, and health status, can be used as witnesses)
B. Agents ad litem may not serve as witnesses in the same case
C. Judges, clerks, appraisers, inspectors, translators and prosecutors who handle the case
(2) Rights of witnesses
A. The right to provide testimony in the native language
B. Supplementary and corrective rights—for misrecording and omission of transcripts
C. Right to Compensation for Loss – Compensation for Necessary Expenses to Testify in Court
D. Right to protection – against retaliation
(3) Obligations of witnesses
A. Obligation to appear in court
B. Obligation to testify truthfully
C. Exceptions to the duty to appear
Under any of the following circumstances, with the permission of the people's court, one may testify through written testimony, audio-visual transmission technology or audio-visual materials, etc.
a. Unable to appear in court due to health reasons
b. Unable to appear in court due to long distances and inconvenient transportation
c. Unable to appear in court due to force majeure such as natural disasters
d.其他有正当理由不能出庭的
（4）特征
A.主观性很强
B.具有不可替代性
C.必须采取法定的形式
5.当事人的陈述
当事人就争议的民事法律关系发生、变更或者消灭的事实向人民法院所作的陈述
（1）特征
A.真实性与虚假性并存
B.主观性较强
C.不可替代性
（2）当事人的陈述的证据效力
A.具有免除对方当事人证明的效力（存在于自认中）
B.具有证据效力（所作有利于自己的陈述，查证属实的，是定案的依据）
C.不具有证据效力，除非例外（对主张只有本人陈述，除对方当事人认可外，法院不予支持）
6.鉴定意见
受聘请或指派的单位或个人，运用自己的专门知识和技能，以及必要的技术手段，对与案件有关的专门性问题进行检测、分析、鉴别所形成的判断性的意见
（1）特征
A.专业性——专业人员经专业手段鉴别
B.中立性——鉴定者中立，在不受外界干扰的情况下所作的意见
C.法定性——必须符合法定程序
（2）鉴定机构、鉴定人的确定
A.协商确定
B.指定确定——当事人协商不成的，法院指定
C.自行委托——当事人未经协商，可自行委托，另一方有证据足以反驳并申请重新鉴定的，应当允许
（3）鉴定人的权利
A.了解权——有权了解进行鉴定所需的诉讼资料，有权参加现场勘验
B.自主鉴定权——鉴定意见独立作出，意见不一致的，有权写出自己的意见，认为检材有问题的，可拒绝鉴定
C.报酬和其他合理费用的请求权
D.获得保护权
（4）鉴定人的义务
A.不得弄虚作假
B.应当出庭接受当事人的质询
当事人对鉴定意见有异议或者人民法院认为鉴定人有必要出庭的，鉴定人应当出庭，拒不出庭的，鉴定意见不得作为认定事实的依据，当事人可要求返还鉴定费用
（5）鉴定人与证人区别
A.是否需要专业知识不同
B.了解案件事实的时间不同
C.能否回避不同
D.能否被替代不同
E.向法庭提供的信息不同——鉴定人提供判断性意见，证人提供案件本身的情况，不能评论推断
（6）与专家辅助人的区别
专家辅助人指，由一方当事人聘请，经法院允许，帮助该当事人向审判人员说明案件事实中的专门性问题，协助该当事人对案件中的专门性问题进行质证的人，其只存在于审判期日里
A. Produced differently
The appraiser shall be determined through negotiation between the two parties or appointed by the court, or may be entrusted by one party. The expert assistant can only be hired by one party alone.
B. It works differently
The appraisal opinion is evidence, and the explanation of the expert assistant cannot be used as evidence
7. Inspection records
The records made by the staff of the people's court when conducting on-site or physical investigation and inspection of the scene or physical evidence involved in a civil case, including transcripts, photos, schematic diagrams, etc.
feature
A. Can only be made by the case handling personnel of the people's court
B. It is an objective record of the inspection situation and results
Chapter 19 Proof in Civil Actions
Section 1 Proof object
Proof is an activity in which the people's court and the parties use evidence to determine the facts of the case
1. The scope of the object of proof
(1) The essential facts determined by legal norms
(2) Indirect facts used to infer the existence of essential facts
(3) Auxiliary facts related to evidentiary capacity and force
(4) Facts of procedural law
(5) Local regulations, customs and foreign laws
(6) Special rules of thumb - the formation of rules is based on facts acquired by special knowledge or experience
2. Facts that do not need to be proven
(1) Well-known facts (including general rules of thumb, common sense, customs)
(2) Natural laws and theorems
(3) Presumed facts
Presumption refers to the assumption made on the basis of the existence of a certain fact that another fact related to it exists or does not exist
A. Presumption of fact
Based on the presumption of empirical rules, the counter-evidence of the empirical rules can be raised, and the counter-evidence of the presumed facts and premise facts can also be raised
B. Legal Presumptions
According to the presumption directly stipulated by the law, no counter-evidence can be provided for the presumption rule, but counter-proof can be provided for the presumed facts and pre-existing facts
(4) Predetermined facts
Facts ascertained by a judgment that has become effective for the people's court
The facts identified in the main text of civil and administrative judgments have prejudgment effect on subsequent civil lawsuits, and the criminal acts identified in criminal convictions have prejudgment effect
(5) Facts that have been confirmed by the main body of the arbitration institution's effective award
(6) Facts that have been proved by valid and impartial documents
(7) Facts admitted in the lawsuit
That is to say, in a lawsuit, one party makes a clear acknowledgment or representation of the unfavorable facts claimed by the other party, which results in corresponding legal consequences.
Requirements for confession in litigation
A. The timing must be made during the proceedings
B. The expression of self-admission in the formal requirements should be clear, and neither acknowledgment nor denial constitutes a fictional self-admission
C. In terms of substantive requirements, the object of self-admission is the facts of the case, which must be consistent with the factual claims of the other party
Confessed validity
A. The effect on the parties is to exempt the other party from the obligation to prove the fact, and the confessor shall not withdraw the confession at will.
B.对法院的效力在于应受自认事实的拘束，不得将与自认相反的事实作为判决的基础（但当事人恶意串通，法院可依职权调查）
自认的撤回
A.对方同意的，或者
B.有充分证据证明自认在重大误解、受胁迫下作出的（与事实不符）
（8）法官依职务可知的事实？
第二节 证明标准（高度盖然性标准）
证明尺度、证明额度、证明强度或证明度，指当事人为说服裁判者相信其主张，对其主张形成心证而必须达到的最低证明程度
1.高度盖然性标准（我国的标准）
又称高盖然性、大盖然性、安全的盖然性，有说服力的盖然性、生活需要的确信度、对真相的心证，指一项事实主张具备非常可能的盖然性，一个理性的人不再怀疑或者看起来其他的可能性都被排除了，这种情况足够形成法官的心证
（1）《证据规定》第73条是高度盖然性标准的法律依据
（2）能够使判决获得广泛的社会认同和较强的司法公信力
（3）能够维护司法秩序
（4）能够保障法官心证的客观化
2.客观真实标准
3.法律真实标准
第三节 证明责任（分配和倒置是重点）
举证责任，指当事人对自己提出的事实主张有责任提供证据进行证明，当作为裁判基础的法律要件事实在诉讼中处于真伪不明的状态时，不尽举证证明以为的当事人应承担败诉的风险
1.分类
（1）主观的证明责任，行为意义上/形式意义上的举证责任，当事人对自己提出的主张有提供证据的责任（举证的必要性）
（2）客观上的证明责任，结果意义上/实质意义上的举证责任，待证要件事实真伪不明时由依法负有证明责任的人承担败诉风险
证明责任一般指客观的证明责任
（3）两者区别
A.涉及对象不同
B.承担责任的原因不同
C.责任在诉讼中是否发生转移不同
D.法律依据不同
F.存在的时间不同
G.能否由律师和法院协助履行方面不同
（4）两者联系
A.都是证据制度不可或缺的组成部分
B.客观证明责任是主观证明责任的前提和基础
C.负担证明责任的一方总是负担提供证据的责任
D.提供证据的活动直接影响着证明责任
2.证明责任的分配
Refers to the distribution of the risks of unknown facts between the two parties according to certain standards, so that the plaintiff bears some risks of unknown facts and the defendant bears other risks of unknown facts
The distribution of legal elements: any party should bear the burden of proof for the factual elements of the legal norms that are beneficial to him
The burden of proving the occurrence of the right is on the party claiming the occurrence of the right
The burden of proving the fact that the right is obstructed shall be borne by the party who claims that the right does not occur
3. my country's regulations on the distribution of the burden of proof
(1) The principle is "whoever asserts shall provide evidence"
(2) General provisions of our country
A. In a contract dispute case, the party who claims that the contractual relationship is established and valid bears the burden of proof for the conclusion and effectiveness of the contract; In the event of a dispute over the performance of a contract, the party with the obligation to perform shall bear the burden of proof
B. In the event of a dispute over the power of agency, the party claiming the power of agency shall bear the burden of proof
C. In a labor dispute case, if a labor dispute arises due to the decision of the employer to expel, dismiss, dismiss, terminate the labor contract, reduce labor remuneration, calculate the number of working years, etc., the employer shall bear the burden of proof
(3) Regarding the inversion of the burden of proof and other provisions
A. Litigation for Infringement Patent Invention of New Product Manufacturing Method
The unit or individual that manufactures the same product bears the burden of proof that the manufacturing method of the product is different from the patented method—inverting the burden of proof for "illegal behavior"
B. Tort Litigation Regarding Human Injury Caused by Highly Dangerous Operations
The infringer bears the burden of proof for the fact that the victim intentionally caused damage—limiting the defense of the infringer, not inverting
C. Litigation for damages caused by environmental pollution
The injurer bears the burden of proof on the grounds for exemption and the absence of causal relationship—the burden of proof of "causal relationship" is reversed
D. Litigation for infringement of buildings or other facilities and objects placed or suspended on buildings that collapse, fall off, or fall and cause damage to people
Has the owner or administrator to bear the burden of proof for its fault - inverting the burden of proof for "fault"
E. Tort litigation for human damage caused by raising animals
The animal breeder or manager bears the burden of proof that the victim is at fault or the third party is at fault—not an inversion, but a general distribution
F. Tort lawsuits for damages caused by defective products
The producer of the product bears the burden of proof for the exemptions stipulated by law - not an inversion, but a general distribution
G. Tort litigation for personal injury caused by joint dangerous behavior
由实施危险行为的人就其行为与损害结果之间不存在因果关系承担举证责任——倒置“因果关系”的证明责任
H.因医疗行为引起的侵权诉讼
由医疗机构就医疗行为与损害结果之间不存在因果关系及不存在医疗过错承担举证责任——倒置“因果关系”和“过错”的证明责任，但《侵权法》的实施，对“过错”实施法律推定原则，因此，过错或其前提事实的证明责任由受害人承担
4.法律推定与事实推定的区别
（1）是否有法律明文规定不同
（2）推定规则是否可以被反证推翻不同
（3）推定事实真伪不明时，承担败诉风险的当事人不同
5.法律推定与事实推定的联系在于
（1）都是从基础事实推断推定事实
（2）它们都缓解了推定事实证明上的困难
6.在法律没有具体规定，依司法解释无法确定举证责任承担时，法院根据公平原则和诚信原则，综合当事人举证能力等因素确定举证责任的承担
第四节 证据的收集与保全
1.证据的收集
（1）当事人及其诉讼代理人自行收集
（2）法院依职权调查收集证据
原则上需要当事人本人或其诉讼代理人提交书面申请
范围为
A.属于国家有关部门保存并须经人民法院依职权调取的档案材料
B.涉及国家秘密、商业秘密、个人隐私的材料
C.当事人及其诉讼代理人确因客观原因不能自行收集的其他材料
2.证据保全
在证据可能灭失或以后难以取得的情况下，人民法院根据利害关系人或诉讼参加人的申请或依职权采取措施，对可能灭失或今后难以取得的证据，予以调查收集和固定保存的行为
（1）保全的程序
A.当事人提交申请→B.裁定（可以要求其提供相应的担保）
必要时可依职权保全
（2）保全的方法
A.向证人进行询问调查，记录证言
B.对文书、物品等进行拍照、录像、抄写或者用其他方法加以复制
C.对证据进行鉴定或者勘验
D.采取查封、扣押、拍照、录音、录像、复制、鉴定、勘验、制作笔录等
第二十章 民事诉讼证据的审查判断
第一节 质证（证据规定为重点，举证时限已废除）
质证时当事人、诉讼代理人在法庭的主持下，对所提供的证据进行辨认、质疑、说明、辩驳等，以确认其是否具备客观性、关联性、合法性以及证明力大小的诉讼活动
（1）质证的主体
parties, attorneys
(2) The object of cross-examination
For all kinds of evidence entering the litigation procedure, the testimony of witnesses can be interrogated, and the original or original evidence can be required for documentary evidence, physical evidence, and audio-visual materials
(3) Contents of cross-examination
Examine whether the evidence has the three characteristics of evidence, and question, explain and refute the strength of the evidence
(4) Procedures for cross-examination
A. to produce evidence
B. Identification Evidence
C. questioning and rebuttal
D. The order is identification, interrogation and refutation by other parties after the plaintiff presents → identification by other parties, interrogation and rebuttal after the defendant’s production → identification by other parties, interrogation and refutation after the third party’s production
(5) Evidence exchange
The behavior of the court to organize the parties to exchange the evidence collected by each other's investigation before the trial
The function is
A. Sort out and clarify the points of contention
B. Organize the evidence
C. Facilitating a settlement or reaching a mediation agreement
There are methods of initiation (the exchange of evidence generally does not exceed two times, except for major difficult cases and the court considers it necessary)
A. The parties can apply for an exchange
B. The court should organize the exchange of evidence in cases with a large amount of evidence or complicated and difficult cases
exchange time
A. The time when the parties have reached a consensus and been approved
B. Evidence Exchange Time Directly Designated by the Court
After the defense period expires, before the hearing
exchange object
All evidence related to the subject matter in dispute
Section 2 The judge is convinced (knows)
Based on all the materials and conditions that appear in the trial, the judge's choice of evidence, the probative force of various evidence, and the determination of the facts of the case are based on his own conscience and rational principles.
features
A. The object of the judge's conviction is mainly limited to various evidences presented by the parties during the evidence investigation process and collected by the judge ex officio
B. It is based on the fact that the trial judge enjoys freedom in the judgment of probative force
C. It must be realized according to one's own conscience, rationality and other principles
Section 3 Judge's Convincing Principle (Understanding)
Judges shall comprehensively and objectively review evidence in accordance with statutory procedures, follow legal provisions, follow judges' professional ethics, use logical reasoning and daily life experience to independently judge whether the evidence has probative force and its probative force, and disclose the reasons for the judgment and result
Part IV On Trial Procedures
Chapter 21 Litigation and Litigation Rights
Section I v. Overview (Understanding)
Based on a certain relationship of civil rights and obligations, one party makes a request to a specific court for trial with the other party as the opposite party
1. Features
(1) Litigation can only be triggered by disputes over civil rights and obligations
(2) It can only be brought by the subject who has an interest relationship with the case
(3) Only to the people's court
(4) A lawsuit is a request for the court to make a judgment
(5) Litigation is an important way to practice the right of litigation
2. Elements of a complaint
(1) The parties - the subject requirements
(2) The subject matter of the lawsuit - the objective elements, the substantive legal relationship between the parties who have a dispute and submit it to the people's court for trial
Section 2 Types of Complaints (Three Kinds of Complaints)
1. Appeal for Confirmation
A party's request for the people's court to confirm the existence or non-existence of a certain legal relationship with the other party
(1) classification
Positive (affirmative) affirmation action - requesting the court to confirm the existence of a certain civil legal relationship with the other party
Negative (negative) affirmation action - requesting the court to confirm that there is no civil legal relationship with the other party
Original Confirmation Action - A Confirmation Action brought by the Plaintiff to the Court during the Prosecution Phase
The lawsuit of intermediate confirmation - in the course of the lawsuit, regarding the premise of the lawsuit, the parties raise a lawsuit to confirm a certain legal relationship
(2) Features
A. The purpose of the parties filing the confirmation lawsuit is only to ask the court to make an authoritative determination on the existence or non-existence of a certain legal relationship
B. The judgment of the court on the action of confirmation is not enforceable
(3) Submit the conditions
A. There must be a dispute over the existence or non-existence of a civil legal relationship between the parties
B. There is a need to eliminate the ambiguity of the legal relationship
2. Action for payment
A party's request to the people's court to order the other party to perform certain civil obligations
(1) Features
A. The purpose is that one party requests the court to order the other party to perform specific civil obligations in order to realize its rights
B. The affirmative judgment of the court on the action for payment is enforceable
(2) classification
A. Property payment lawsuit and behavior performance lawsuit
B. Action for present payment and action for future payment
(3) Submit the conditions
A. There is a payment dispute between the parties
B. The performance period has expired and the obligor has not performed or refuses to perform the obligation, or it is necessary to request in advance
3. Appeal for change
Formation lawsuit, one party requests the court to modify or eliminate the existing civil legal relationship with the other party
(1) Features
A. Generally, there is no dispute between the parties about the legality and validity of the existing legal relationship. What is in dispute is whether the legal relationship should continue to exist in its current content and form
B. Before the modification judgment made by the court takes effect, the existing civil legal relationship remains in its original state
Section 3 Subject matter of litigation (emphasis is on identification—dispute legal relationship)
1. The subject of the lawsuit refers to the civil legal relationship in which a dispute arises between the parties and is submitted to the court for trial and judgment (the object of the court trial)
2. Standards for identifying the object of litigation
(1) The theory of the old subject matter of litigation
In the identification standard of the old substantive law, the object of action is the relationship of rights and obligations on the entity, and the identification standard is based on the right of claim on the entity. If one legal constituent element is met, one entity claim is generated. There are as many object of action as there are entity claims.
(2) Theory of the new subject matter of litigation
Procedural Law Identification Standard Says
A. The theory of two parts - the object of action should be the combination of the statement of the lawsuit and the facts of the lawsuit as the identification standard of the object of the lawsuit. When any element of the statement of the lawsuit and the facts of the lawsuit is in the majority, the object of the lawsuit is the majority
B. One-legged theory - the object of action can only be identified by the statement of the action. If there is only one statement of action, even if there are different facts and reasons, there is still only one object of action
Section 4 v. Merger and Separation (Understanding)
1. Consolidation of v.
The court combines two or more independent lawsuits for trial and judgment in one procedure.
(1) Consolidation of subjects of lawsuits—subjective consolidation of lawsuits, where the court merges lawsuits involving more than two parties in one or both parties for trial
(2) Consolidation of objects of lawsuits—objective consolidation of lawsuits. The court combines several lawsuits that exist independently but are implicated in object elements in the same litigation procedure for trial.
(3) Mixed merging of lawsuits - joint merging of the subject and object of the lawsuit, where the court merges several independent lawsuits involving several litigation subjects in the same litigation procedure for trial
2. Conditions for merger of suits
(1) Several lawsuits to be merged must have an implicated relationship
(2) The joint trial of lawsuits can achieve the purpose of litigation economy
3. Separation of v.
After the court accepts the case, separate several lawsuits from the same case and try them separately as several independent cases.
(1) Separation of ordinary joint action
(2) Separation of several lawsuits filed by the same plaintiff against the same defendant
(3) Separation of counterclaims
(4) Separation of the suit with the participation of a third party with an independent claim
4. Conditions of Separation of v.
(1) The court has consolidated multiple lawsuits
(2) The trial of the consolidated lawsuit will complicate or delay the lawsuit
(3) The separation of the lawsuit does not violate the mandatory norms of the law
Section 5 Counterclaim (Key Points)
The defendant's counterclaim against the plaintiff, that is, in the proceedings that have already begun, the defendant in this lawsuit, with the plaintiff in this lawsuit as the opposing party, files an independent counterclaim that is implicated in this lawsuit to the court
1. Features
(1) The parties to the counterclaim are specific
(2) The time for filing a counterclaim is limited—before the conclusion of the oral argument at the trial of fact
(3) The counterclaim is relatively independent
(4) The purpose of the counterclaim is adversarial
2. File a condition
(1) A counterclaim can only be brought by the defendant in this action against the plaintiff in this action
(2) The counterclaim should be filed during the proceedings
(3) The counterclaim must have an implicated relationship with the present lawsuit
(4) The counterclaim can only be brought to the court that accepts the suit
Chapter 22 Ordinary Hearing Procedures
Section 1 Prosecution, Acceptance and Response (Compulsory Prosecution Conditions)
1. Sue
The litigation act of requesting the court to make a judgment in this case, that is, the civil subject believes that his own interests or the civil rights and interests under his own management have been infringed or has a dispute with others, and he files a lawsuit request to the court in his own name, requesting the court to start the trial procedure and resolve the dispute. litigation in which judgments are made
(1) Features
A. Suing is the action of the plaintiff
B. Prosecution is a request made by the parties to the court for trial, and the subject and object of the lawsuit are specified
(2) Conditions for prosecution
A. Substantial conditions
a. The plaintiff is a citizen, legal person or other organization that has a direct interest in the case
b. has a clear defendant
c. There are specific claims, facts and reasons
d. Belonging to the scope of civil cases accepted by the people's court and the jurisdiction of the people's court accepting the lawsuit
B. Formal conditions
In principle, it is required to submit a written indictment, and submit copies according to the number of defendants. If it is difficult to write the indictment, an oral indictment can be filed.
(3) The legal effect of the accepted lawsuit
A. The litigation procedure begins, and the court receiving the lawsuit obtains jurisdiction over the case in accordance with the law
B. The litigation status of the plaintiff and the defendant is determined
2. Acceptance
The people's court, after investigation, finds that the plaintiff's lawsuit meets the conditions stipulated in the civil procedure, and decides to file the case for trial
(1) Features
A. Acceptance is the performance of the court exercising its judicial power
B. Acceptance is the court’s formal review of the content of the lawsuit filed by the party
(2) Cases in which the application is not accepted
A. If it falls within the scope of accepting administrative litigation, inform the plaintiff to file an administrative litigation
B. In accordance with the law, if the parties voluntarily reach a written arbitration agreement on a contract dispute and apply to an arbitration institution for arbitration, but are not allowed to bring a lawsuit to the court, the plaintiff shall be informed to apply for arbitration to the arbitration institution
C. For disputes that should be handled by other agencies in accordance with the law, inform the plaintiff to apply to the relevant agencies for resolution
D. For cases not under the jurisdiction of this court, inform the plaintiff to sue in a people's court with jurisdiction
E. For cases where the judgment or ruling has taken legal effect, if the party files a lawsuit again, the plaintiff shall be informed to handle the complaint. Except for a ruling of the court allowing dismissal
F In accordance with the law, a case that cannot be prosecuted within a certain period of time shall not be accepted if it is prosecuted within the time limit
G. Divorce cases where the judgment refuses to allow the divorce and the mediation is reconciled, or the case where the adoption relationship is maintained through judgment and mediation, if there is no new situation or new reason, if the plaintiff sues again within six months, it shall not be accepted
H. If the plaintiff withdraws the lawsuit or handles the divorce case according to the withdrawal, if there is no new situation or new reason, if the lawsuit is filed again within six months, it will not be accepted
(3) Cases that should be accepted
A. If the plaintiff sues again for a case that is ruled not to be accepted or dismissed, it shall be accepted if it meets the conditions for prosecution
B. After the party withdraws the lawsuit or the court decides to withdraw the lawsuit, if the party sues again with the same claim, the court shall accept it
C. If the arbitration clause reached by the parties is invalid, invalid or unclear and unenforceable, or the arbitration institution selected by the parties in the arbitration agreement does not exist, or the matter selected for adjudication exceeds the authority of the arbitration institution, the court has the right to accept a lawsuit filed by one party. If one of the parties fails to declare that there is an arbitration agreement when filing a lawsuit with the court, and the other party responds to the lawsuit after the court accepts the case, the court shall be deemed to have jurisdiction.
D. If the patient and his relatives have no opinion on the medical malpractice appraisal conclusion made by the medical malpractice technical appraisal committee, but only require the medical unit to file a lawsuit in the court for medical malpractice compensation for economic losses, the court shall accept the case
E. If the defendant files a lawsuit against the court in a divorce case where the judgment does not allow the divorce, mediation and good divorce, or a judgment or mediation to maintain the adoption relationship, it shall be accepted
F. The whereabouts of one of the husband and wife is unknown, and the other party sues to the court, only asking for a divorce and not applying for a case where the missing person is missing or dead, the court shall accept the case, and serve the litigation documents on the missing person by public announcement
G. In cases of alimony, child support, and child-care expenses, after the judgment becomes legally effective, if one party sues again to request an increase or decrease in fees due to new circumstances or new reasons, the court shall accept it as a new case
H. If the party files a lawsuit beyond the statute of limitations, the court shall accept it. If it is found after acceptance that there is no reason for suspension, interruption, or extension, the judgment shall reject the claim
3. Responding
The act of the defendant responding to, defending against, and participating in the proceedings against the plaintiff's claims
After the court accepts the complaint, the complaint shall be served within 5 days, and the defendant shall file a statement of defense within 15 days from the date of receipt of the copy of the complaint
The defendant has the right to:
A. Defend against the plaintiff's lawsuit (if the defendant fails to make a defense, it will not affect the trial of the case)
B. Objection to Procedural Matters
C. File a counterclaim
D. Gather and provide evidence
Section 2 Preparations before trial (browsing)
1. Serve the litigation documents within the statutory period (the copy of the statement of complaint will be served within 5 days after the filing of the case, and the copy of the statement of defense will be served within 5 days after receiving the statement of defense)
2. Informing the parties of their litigation rights and litigation obligations
3. Establish a collegial panel and inform the parties within three days after confirmation
4. Parties exchange evidence
5. Issues to settle
6. Review litigation materials, investigate and collect necessary evidence
7. Other situations such as adding parties
Section 3 Hearing (Pay attention to the procedure)
1. Legal procedure of court hearing
(1) Preparation before court
A. Inform the parties and other litigation participants of the date of appearance in court - summon the parties 3 days before the hearing, and notify other parties with a notice
B. Announcement of court opening - 3 days in advance
(2) Announcing the hearing
Avoidance applications are filed at this stage
(3) Court investigation
Proceedings in which judges comprehensively review, verify and authenticate evidence in court
A. Party statement
Read out the statement of complaint → read out the statement of defense → the third party with independent right of claim states the claims and reasons (the third party without independent right of claim makes a statement of defense against the statement of complaint or statement of defense) → the plaintiff and the defendant respond to the statement of the third party
B. Examination of Witness Statements
Witnesses testify → parties ask questions
C. Examination of documentary, physical and audio-visual material
cross-examination
D. Review of expert opinion
The appraisal opinion was read out in court, and the appraiser appeared in court for questioning
E. Review of Inquest Transcripts
Read the transcript in court, show photos and charts in court, and ask questions to the inspector
F. The presiding judge summarizes the issues of the court investigation, announces the end of the court investigation, and enters the court debate
(4) Court debate
Under the auspices of the judges, the litigants and litigation representatives expound their opinions on the facts and evidence found in the court investigation, refute the opponent's claims, and debate each other's litigation activities
A. The plaintiff made a statement
B. The defendant made a statement
C. The third party speaks
D. Arguing with each other
E. Proceed to the next round of debate
After obtaining the consent of all parties, the presiding judge may mediate in accordance with the law;
(5) Collegial panel deliberation
After the conclusion of the court debate, comment on the determination of the facts of the case, the division of right and wrong responsibilities, applicable laws and handling results
The review results and comments are recorded in the review transcripts, which are not made public and signed by the members
The minority is subject to the majority, and a majority cannot be formed, or for major and difficult cases, it shall be submitted to the review committee for decision
Ordinary procedures shall be concluded within 6 months from the date of filing the case. If an extension is required under special circumstances, it may be extended for 6 months upon approval of the president. If further extension is required, it shall be reported to the higher people's court for approval.
2. Trial transcript
During the court hearing, the written record made by the clerk of the whole process of the court hearing is the only evidence method that can prove the status of the court hearing
(1) Fixed facts and evidence
(2) Fixed trial process
The transcript shall be read out in court, or the parties or other litigation participants shall be informed to read it within 5 days, and may apply for amendments or corrections. If no amendments or amendments are made, it shall be recorded
Section 4 Handling of Special Circumstances in Case Trial (Withdrawal, Postponement and Suspension are the focus)
1. Withdrawal
According to the application of the parties or according to the law, the lawsuit that has been accepted by the court is revoked, thus ending the initial litigation procedure
(1) classification
A. Withdrawal of the complaint and withdrawal of the counterclaim
B. The parties apply to withdraw the lawsuit and the court handles it as withdrawing the lawsuit
C. Withdrawal of Prosecution and Withdrawal of Appeal
(2) Application for withdrawing the lawsuit
A litigious act in which a party files a request to the court for withdrawing the lawsuit before the court's trial of the case ends
condition is
A. The parties voluntarily
B. It must be submitted before the end of the case trial (before the judgment)
C. Approved by court review
(3) Handled as a withdrawal
If the behavior of the litigant complies with the legal provisions, the court will regard it as a withdrawal of the lawsuit.
A. After being summoned by subpoena, the plaintiff refuses to appear in court without justifiable reasons, which can be handled accordingly
B. The plaintiff withdraws from the court without permission, which can be handled accordingly
C. If the plaintiff should pay in advance but fails to pay the case acceptance fee in advance, and the court has not approved its postponement or exemption from payment, it can be handled accordingly
Applicable to third parties with independent claims
(4) Legal consequences of withdrawing the lawsuit (the lawsuit is eliminated retrospectively)
A. End of proceedings
B. Litigation costs are borne by the plaintiff
C. The statute of limitations restarts
2. Postponement of trial
In case of statutory reasons, the people's court can't continue the trial date already fixed or the ongoing trial, and postpone the trial to another date.
(1) If the parties who must appear in court and other litigation participants fail to appear in court for legitimate reasons, the trial may be postponed
(2) If the party files a withdrawal application temporarily, the extension may be extended
(3) It is necessary to notify new witnesses to appear in court, obtain new evidence, re-identify, inspect, or supplement investigation
(4) Others
3. Default Judgment
Compared with the judgment of the bench, the judgment made by the court on the case in accordance with the law when one party refuses to participate in the trial without justified reasons or leaves the court without permission
(1) If the defendant refuses to appear in court without justifiable reasons after being summoned by a subpoena;
(2) If the plaintiff applies for withdrawing the lawsuit, and the court rules that the withdrawal is not allowed, if the plaintiff refuses to appear in court without justified reasons after being summoned, the judgment may be made in absentia
(3) After the case is accepted, if the defendant files a counterclaim, the plaintiff refuses to appear in court without justifiable reasons after being summoned, or withdraws from court without the permission of the court, the judgment may be made in absentia.
(4) Applicable to legal representatives of parties without capacity for civil litigation
4. Suspension of proceedings
In the process of litigation, if there is a statutory cause, the court will temporarily suspend the proceedings, and resume the lawsuit after the statutory cause disappears.
(1) When one party dies and it is necessary to wait for the heir to indicate whether to participate in the lawsuit
(2) One party loses the capacity for litigation and has not yet determined a legal representative
(3) The legal person or other organization as one of the parties is terminated, and the successor of rights and obligations has not been determined
(4) One party is unable to participate in the litigation due to irresistible reasons
(5) The case must be based on the trial result of another case, and the other case has not yet been concluded
(6) Others
5. End of litigation
A system in which the court rules to terminate the proceedings if a statutory cause arises during the proceedings, making it impossible or unnecessary to continue the proceedings
(1) The plaintiff is dead and has no heir, or the heir waives the right to sue
(2) The defendant dies, has no estate, and has no person who should bear the obligation
(3) One party to the divorce case dies
(4) One of the parties involved in the case of claiming alimony, child support, childcare, and termination of adoptive relationship dies
Once the ruling is made, it will take effect immediately and cannot be appealed or reviewed
Chapter 23 Summary Procedure (Small Claims, Small Claims)
Section 1 Overview of Simplified Procedures
Procedures applicable to the trial of simple civil cases by basic people's courts and their dispatched tribunals
1. Applicable court
Only limited to basic level courts and their dispatched courts
2. Applicable cases
Simple civil cases with clear facts, clear rights and obligations, and little controversy
The parties may also agree to apply the summary procedure
Small claims lawsuit, final trial at first instance
3. Non-Applicable Cases
(1) Where the defendant's whereabouts are unknown at the time of the prosecution
(2) Remanded for retrial
(3) Where one party or both parties to a joint action is numerous
(4) The law stipulates that special procedures, trial supervision procedures, supervision procedures, public notice procedures and corporate bankruptcy debt repayment procedures should be applied
(5) The court deems it inappropriate to apply the summary procedure
Section 2 Specific Provisions on Summary Procedures
1. Method of prosecution
Written prosecution, if it is really difficult to write a complaint, you can file an oral complaint
2. Case acceptance
Immediately admissible/inadmissible, or immediate hearing
3. Organizational form of the trial
single court
4. Procedure
The parties and witnesses can be summoned, the litigation documents can be served, and the case can be tried in a simple way, but the right of the parties to state their opinions should be guaranteed
5. Trial period
The trial will be concluded within 3 months from the date of filing the case, if the trial cannot be concluded, it will be transferred to the ordinary procedure
If during the trial, it is found that the summary procedure is not suitable, the ruling shall be transferred to the ordinary procedure
Chapter 24 Civil Judgment (understand)
Section 1 Civil Judgment
Through the trial of civil cases, the court makes a legally binding conclusive judgment on the substantive issues of the case based on the ascertained facts and relevant laws
1. Features
(1) Must be based on civil jurisdiction
(2) It must only be made on the civil substantive issues of the dispute between the parties, or the legal facts or rights that the parties request to confirm.
(3) It is a conclusive judgment with legal binding force
(4) All in written form
2. Negative judgments in the lawsuit for payment and the lawsuit for modification are affirmative judgments
3. When the court hears a case, some of the facts are already clear, and a judgment may be made on that part first
4. Content
(1) Header
(2) Reason
Judgment reasons refer to the reason and reason for the court to make a specific judgment conclusion, and the judgment reasons do not have res judicata
(3) The main text of the judgment
The main text of the judgment is also called the conclusion of the judgment, only it has res judicata
(4) Tail
5. Effectiveness
Determining (validating) the legal effect of a judgment
(1) Binding force
A. The parties must abide by
B. The court shall not arbitrarily revoke or change (in addition, the court shall not arbitrarily revoke or change after the announcement before confirmation—self-binding force)
C. Society must respect
(2) Form determination
The parties may not seek to vacate or vary the judgment by appeal
(3) Execution
The payment judgment can realize the content determined by the judgment through court enforcement and other methods
(4) Formation force
The legal relationship with which the judgment was formed is formed or eliminated by the judgment
(5) res judicata
Determining the general force or certainty of the judgment on the subject matter of the lawsuit in the main text of the judgment
Section 2 Civil Ruling
During the trial and execution of a case, the court makes a judgment on the procedural issues of the case and certain substantive issues, rather than deciding on substantive issues.
1. Features
(1) The subject is the court
(2) Most of the objects are procedural issues
(3) Both written and oral
2. The relationship and difference between the judgment and the ruling
The connection is that they are all manifestations of exercising judicial power, and they are all judgments made in accordance with legal procedures.
The difference is that
(1) Applicable objects are different - entity or program
(2) Whether it can be appealed is different - there are only three types of rulings that can be appealed
(3) The appeal period is different - 15 days for judgment and 10 days for ruling
(4) Different forms - the judgment must be in written form, and the ruling is only in writing
3. Scope of application of the ruling
(1) Inadmissible
(2) Objection to jurisdiction
(3) Dismiss the prosecution
(4) Property preservation and advance execution
(5) Approval or disapproval of withdrawal
(6) Suspension or termination of litigation
(7) Correcting clerical errors in the judgment
(8) Suspension or termination of execution
(9) Non-enforcement of the arbitral award
(10) Non-execution of creditor's right documents that have been given enforcement effect by the notary public
(11) Others
4. Form
If made orally, it must be recorded in the transcript
5. Effectiveness
(1) The rulings of the Supreme Court and the court of second instance will take effect once served
(2) For other courts, except for the ruling that can be appealed, it will become effective once served
Section 3 Civil Decision
Judgments made by the court in accordance with the law on special matters in litigation
Decisions without appeal
The form can be in written or oral form, and the oral decision is recorded in the record
Scope of application:
(1) Whether to avoid
(2) Take compulsory measures to exclude obstruction of civil proceedings
(3) Extension of the litigation period
(4) Postponement, exemption and reduction of litigation costs
(5) Suspension of execution
Once the decision is made, it takes effect immediately and cannot be appealed
Section 4 Civil Mediation Letter
A legal document made by the court that records the content of the agreement between the parties
1. Cases where a mediation agreement is reached, but no mediation statement is required
(1) Mediation and settlement of divorce cases
(2) Mediation in cases of maintaining the adoption relationship
(3) Cases that can be performed immediately
(4) Other cases that do not require a mediation statement
2. Effectiveness - has the same effect as a definite judgment (quasi res judicata)
(1) To determine the validity of the civil legal relationship between the parties
(2) The effect of ending the proceedings
(3) Effectiveness of enforcement
Section 5 Responsibility (too difficult, almost impossible to test)
1. The role of res judicata
(1) The parties cannot make claims or requests in the subsequent litigation that are contrary to the judgment of the previous litigation that has produced res judicata
(2) The parties are not allowed to sue the same party again on the same subject matter and on the same grounds
(3) The court of the subsequent appeal must take the pre-appeal judgment that produces res judicata as the premise in the judgment of the later appeal
2. Subject boundaries
limited to opposing parties
3. Object boundaries
Only the judgments in the main body of the judgment have res judicata, and only the judgments about offsetting the defense and the reasons for the judgment have res judicata
Chapter 25 Second Instance Procedures (Mastery)
Section 1 Overview of Second Instance Procedures (Conceptual Comparison 1 Second Instance Differences)
The procedure applicable to the trial of the case by the higher court in accordance with the law when a party appeals against the undecided first-instance judgment or ruling of the local court at all levels
The relationship between the procedure of the second instance and the procedure of the first instance
1. Difference
(1) The nature of the procedure is different - the final review and the preliminary review
(2) The purposes of setting are different—the second instance is for trial and supervision, and the first instance is for confirming the legal relationship between the parties
(3) The basis for the occurrence of the procedure is different - the second instance is based on the right to appeal and trial supervision, and the first instance is based on the right to prosecute and jurisdiction
(4) The method of trial - the second instance may not be heard in court, but the first instance must be heard in court
(5) The time limit for the conclusion of the trial is different - the second trial of the judgment is 3 months, the president approves the extension, the second trial of the ruling is 30 days, the first trial is generally 6 months, and the simplified procedure is 3 months
(6) The time for the legal effect to take place is different——the judgment of the second instance will become effective once it is delivered
(7) The composition of the trial organization, the object of the trial (claims or dissatisfaction), and the results of the trial
2. contact
(1) The first trial is the premise and basis of the second trial, and the second trial is the continuation and extension of the first trial
(2) Many procedures of the second instance are the same as those of the first instance
(3) In addition to collecting new litigation materials, the second trial will also use the litigation data of the first trial (continued trial)
Section 2 Trial of appeal cases
1. Appeal
The litigious act of a party declaring dissatisfaction with a first-instance judgment or ruling that has not yet been determined by the court, and requesting the higher court to retry the case and revoke the original judgment or ruling in accordance with the law
(1) Submit the conditions
A. There must be a statutory object of appeal
B. There must be a statutory appellant and appellee
C. Must file an appeal within the statutory time limit
D. Must comply with the provisions of the jurisdiction of the appeal case
E. Complaint must be filed - must be in writing
(2) Initiate procedures
A. In principle, through the original court
B. It is not prohibited to file an appeal directly to the second-instance court, and transfer it to the original court within 5 days
C. The original court sent the petition to the other party 5 days after receiving it
D. After the other party receives it, reply within 5 days
E. The court of first instance shall submit the statement of defense to the court of second instance within 5 days
2. Trial
(1) The second instance is a trial of fact, and in principle the trial is conducted within the scope of the evidence of the first instance, unless new evidence is submitted (discovered after the trial of the first instance; the application for transfer is not approved, but the court of second instance thinks it should be allowed)
(2) Trial organization
Collegiate panel - composed entirely of judges
cannot be a single court
(3) Trial method
Hearing in court is the principle, and direct judgment is the exception
Follow the referee's request
A. Must be heard by a collegial panel
B. The collegial panel must go through file reading and investigation
C. The parties should be asked
D. After checking all the facts, the collegiate panel decides that it is not necessary to hold a trial, and make a judgment
Scope of application of direct refereeing
A. Ruling
B. The appeal request is obviously untenable
C. The facts are clearly identified, but the law is wrongly applied
D. Violating legal procedures, which may affect the fair trial, and need to be remanded for retrial
(4) Withdrawal of appeal
A. Application to withdraw the appeal
a. The subject is limited to the appellant and the legal representative of the appellant
b. Pre-judgment application
c. Voluntary submission, the court shall not mobilize
d. court permission
B. Treat as withdrawal of appeal
If the appellant still fails to pre-pay or apply for postponement of payment within 7 days after receiving the notice of court pre-payment, it shall be handled accordingly
C. Legal Consequences (First Instance Procedures and Judgments Not Affected)
a. Withdrawal loses the right to appeal the case
b. The court of second instance terminates the trial procedure of the case of second instance, and the judgment and ruling of the first instance take effect
c. The person who withdraws shall bear the litigation costs of the second instance
3. Closing method
(1) Case closed through mediation
After the civil mediation document of the court of second instance is served, the judgment of the court of first instance is deemed to be revoked
(2) The referee closes the case
A. If the original judgment finds the facts clearly and the applicable law is correct, the appeal shall be rejected by way of judgment or ruling, and the original judgment shall be upheld
B. If the original judgment determines the facts wrongly or applies the law wrongly, the judgment shall be amended, revoked or changed in accordance with the law in the form of judgment or ruling
C. If the basic facts identified in the original judgment are not clear, the original judgment shall be revoked and sent back to the original court for retrial, or the judgment shall be changed after the facts are clarified
D. If the original judgment omits the parties or the illegal default judgment seriously violates the statutory procedures, the original judgment shall be revoked and the people's court of the original trial shall retry the case.
The court of second instance shall not remand for retrial
Judgments and mediation documents are effective as soon as they are served
Chapter 26 Trial Supervision Procedures (Reason for Retrial Needs to be Known)
Section 1 Overview of Trial Supervision Procedures (Department of Law Amendment)
The procedure for the court to retry the case when the judgment, ruling and mediation document that have taken legal effect meet certain statutory circumstances
No application for retrial shall be made against the effective judgment of dissolution of marriage
Section 2 Trial of Retrial Cases (Three Ways to Initiate Retrial)
1. The court filed ex officio
(1) Presidents of courts at all levels + adjudication committees
For the effective judgment or ruling of this court, if an error is found and a retrial is considered necessary, it shall be submitted to the review committee for decision
(2) Supreme Court and Superior Court
If an error is found, the right to arraign or order a retrial
2. The procuratorate filed a protest in accordance with the law
(1) Circumstances of protest
The Supreme People’s Procuratorate discovers one of the legal grounds for a party’s application for retrial against a legally effective judgment or ruling made by a court at any level, or a higher-level procuratorate finds that a party concerned has filed an effective judgment or ruling against a lower-level court’s judgment or ruling, or finds that the mediation document damages the interests of the state or the public. should file a protest
Local procuratorates at various levels may request higher-level procuratorates to appeal to the court at the same level
(2) Program
If the procuratorate lodges a protest, the court that accepts the protest shall make a ruling for retrial within 30 days from the date of receipt of the protest letter, and may submit it to the next level of court for retrial under statutory circumstances.
3. The parties apply for retrial
The party concerned thinks there is an error in the effective judgment or ruling of the court, or submits evidence to prove that the legally effective mediation agreement violates the principle of voluntariness or the content of the mediation agreement violates the law, and applies to the higher court for a retrial of the case litigation
(1) The subject is the party and the legal representative of the party
(2) The objects are effective judgments and mediation documents
(3) There may be errors in the effective judgment and mediation statement
A. There is new evidence sufficient to overturn the original judgment or ruling
B. The basic facts identified in the original judgment or ruling are not supported by evidence
C. The main evidence for the original judgment and ruling to determine the facts is forged
D. The main evidence of the factual determination in the original judgment or ruling has not been cross-examined
E. For the main evidence required for the trial of the case, the parties concerned cannot collect the evidence by themselves due to objective reasons, and apply in writing to the people's court for investigation and collection, but the people's court fails to investigate and collect
F. The original judgment or ruling was wrong in applying the law
G. The composition of the judicial organization is illegal or the judicial personnel who should withdraw according to law have not withdrawn
H. Persons with no capacity for litigation who have not been represented by a legal representative or parties who should participate in the litigation but fail to participate in the litigation due to reasons that cannot be attributed to themselves or their litigation representatives
I. Violating the law and depriving the parties of their right to debate
J. Judgment by default without subpoena
K. Where the original judgment or ruling omits or exceeds the claims
L. The legal document on which the original judgment or ruling was made is revoked or changed
M. The judges were involved in corruption, bribery, favoritism, malpractice, and perverting the law when trying the case
(4) Apply for retrial within the statutory time limit
If the party believes that the effective judgment or ruling is wrong, it shall apply to the people's court at the next higher level for retrial within 6 months after the judgment or ruling becomes effective.
For the effective mediation agreement, if evidence is presented to prove that the mediation violates the principle of voluntariness or the content of the mediation agreement violates the law, it has the right to apply for retrial within 6 months after the mediation agreement becomes effective
(5) Apply in writing to a court with jurisdiction
Generally, an application is made to the higher court, but if one of the parties involved is large in number or both parties are citizens, an application may also be made to the original court for retrial
4. Hearing procedure
(1) Form a collegial panel
(2) Examination of the application for retrial
Send a copy of the application to the other party within 5 days, submit a written opinion within 15 days, review within 3 months, and decide to retrial or reject the application
(3) Ruling to suspend the execution of the original judgment
Cases of four fees, one gold and one remuneration may not suspend execution
(4) Hearing in court
The original trial was the first-instance procedure, according to the first-instance procedure, the original trial was the second-instance procedure, according to the second-instance procedure;
(5) Closing method
A. Ruling
a. Ruling to terminate the retrial procedure
Applicable to withdrawal of retrial application
b. Ruling leave to withdraw the prosecution
Applicable to the retrial according to the first-instance procedure, and at the same time rule to revoke the original judgment and mediation agreement
c. Ruling to revoke the original judgment and remand for retrial
Applicable to the second instance procedure
d. Ruling to reject the application for retrial
Applicable to the retrial against the mediation letter
B. Mediation
After the mediation statement is signed, the original referee is deemed to have been revoked
C. Judgment
a. to maintain
Applicable to cases where the original referee determined the facts clearly and applied the law correctly
Or the original referee has flaws in finding facts, applying law, and explaining reasons, but the result of the judgment is correct, and it shall be maintained after correction.
b.
New evidence proves original referee was wrong
(6) The retrial limit shall be in accordance with the first-instance or second-instance procedure. The court itself can only retry, arraign, and protest once, excluding the case where the party’s application is rejected by notice
Chapter 27 Special Procedures (the revised part is the focus, and the two new sections are hardly examined)
Section 1 Overview of Special Procedures (Browse)
Non-litigation procedure
Section 2 Voter Qualification Case Procedures (Browse)
1. The prosecution should be filed 5 days before the election day, and all citizens can file
2. Jurisdiction of the grassroots court where the constituency is located
3. The collegial panel—composition of judges—trial, no appeal, and the trial will be concluded before the election day
Section 3 Announcement of Missing Citizen Cases (Understanding)
1. The whereabouts have been unknown for 2 years, and the interested party submits an application
2. Jurisdiction of the basic court at the respondent's domicile
3. The announcement period is 3 months
4. Those whose whereabouts are unknown during the war shall be counted from the day when the war ends
5. If the declared missing person reappears, a new judgment is made to revoke the original judgment upon application by the person himself or the relevant interested party
Section 4 Procedures for Declaring the Death of a Citizen (Understanding)
1. Whereabouts have been missing for 4 years, and whereabouts have been missing for 2 years due to accidents, interested parties (there are order restrictions) submit an application
2. Jurisdiction of the basic court at the respondent's domicile
3. The announcement period is 1 year. If the whereabouts of the accident is unknown and it is proved by the relevant authorities that it is impossible to survive, the announcement period is 3 months.
4. Those whose whereabouts are unknown during the war shall be counted from the day when the war ends
5. If the declared missing person reappears, a new judgment is made to revoke the original judgment upon the application of the person or the original interested party (not in order)
Section 5 Procedures for Determining Citizens Incapacitated and Restricted for Civil Conduct (Browse)
1. Application by interested parties, including other close relatives and friends
2. Jurisdiction of the primary court at the place where the identified object resides
3. The trial will not be open to the public, the judgment should appoint a guardian, no appeal, and it will take effect immediately
Section 6 Trial Procedures for Cases Determining Ownership of Property (Browse)
1. Anyone may apply, in writing
2. The grassroots court of the place where the ownerless property is located
3. The announcement period is 1 year
4. The judgment is rejected and the owner is notified to take it back, or the judgment is determined that the country (collective) has
5. The owner or his successor reappears, the judgment clarifies the ownership, the original judgment is revoked, the price is returned or negotiated according to the quality, and the discount is returned
Chapter 28 Supervision Procedures (sub-headings)
Section 1 Overview of Supervision Procedures
Non-litigation procedure
The applicable conditions are
(1) The applicant's request is limited to the payment of money and securities
(2) The money or securities requested for payment have indeed expired
(3) There is no civil dispute between the claimant and the respondent over payment (including the absence of offsetting circumstances)
(4) The applicant must apply to the court in writing
(5) The payment order can be served on the debtor
Section 2 Payment Order
1.5 days to notify the decision whether to accept or not, no appeal or reconsideration
2. After acceptance, the sole judge will not open a court review
3. In principle, direct delivery will take effect upon delivery and will be issued within 15 days
4. The debtor shall pay off within 15 days of receipt
5. Payment orders are enforceable
6. Objection by the debtor
(1) Must be filed within 15 days of receiving the payment order
(2) There are grounds for confrontation—the grounds for shaking the legal relationship between them and the grounds for undermining the basis for the application of the supervisory procedure
(3) Submit in written form
7. If the objection is upheld, it shall be ruled to terminate the supervision procedure, the payment order shall be invalidated, and it shall be automatically transferred to the litigation procedure, unless the applicant does not agree to initiate a lawsuit.
8. After the payment order takes effect, the debtor may not object, and the relief method is to adopt the trial supervision procedure of the president of the court + the trial committee
Chapter 29 Public Notice Procedures (sub-headings)
Section 1 Overview of Public Notice Procedures (Browse)
Reminder + ex-right
1. The primary court where the bill is paid is the competent court
2. Applicable to the loss of bills that can be transferred by endorsement
Section 2 Hearing of Public Notice Cases (Understanding)
1. Written application, the applicant is the real loser
Review and make a ruling within 2.7 days
3. Within 3 days after acceptance, the announcement of declaration rights will be issued, and a notice of stop payment will be issued
4. The announcement of rights shall not be less than 60 days, and the unknown interested party (note holder) shall declare the rights during this period, and then rule to terminate the public announcement procedure
5. If no one declares, according to the application of the applicant, the collegial panel shall make a judgment of ex-rights, and the applicant may demand the payer to pay
The fifth part is about execution procedure
Chapter 30 Overview of Enforcement Procedures (Relationship between Trial Procedures and Enforcement Procedures, Revised Part)
Section 1 Execution and Execution Procedures
1. Conditions of execution
(1) Based on effective legal documents
(2) Payment judgment
(3) It must be based on the premise that the obliged party refuses to perform the obligation without reason
(4) The statutory time limit for execution has not expired—two years, counting from the last day of the performance period specified in the legal document
2. Relationship between execution procedure and trial procedure
(1) contact
A. Both are based on the Civil Procedure Law
B. The trial procedure is the premise and basis of the execution procedure, and the execution procedure is the succession and realization of the trial procedure
(2) Difference
A. The basis of the execution procedure is the judicial execution power of the court, and the basis of the trial procedure is the judicial power
B. The function of the execution procedure is to realize the payment content in the effective legal documents, and the function of the trial procedure is to resolve civil disputes and confirm the rights and obligations of civil entities
C. The content of the execution procedure consists of various execution methods and compulsory measures, and the trial procedure consists of the first instance, second instance, trial supervision procedure and non-litigation procedure
Section 3 Principles of Implementation (Short Answer)
1. The principle of combining compulsory implementation and persuasive education (the former is the main and the latter is the auxiliary)
2. The principle of combining enforcement by the people's courts with the assistance of relevant units
3. The principle of protecting the legitimate rights and interests of both parties involved in the enforcement
(1) Protect the legitimate rights and interests of the enforcement creditor
(2) Protect the legitimate rights and interests of the person subject to execution
A. Strictly abide by the relevant provisions of the law (keep the necessities of life of the person subject to execution and his dependent family members)
B. Clarify the scope of execution of the property of the person subject to execution
C. Find out the order of the property of the person subject to execution
D. The person subject to execution should have the ability to perform
4. Implement the principle of limited subject matter
(1) The subject of compulsory execution is the property or behavior of the person subject to execution, not the person of the person subject to execution.
(2) The necessary living expenses of the person subject to execution and his dependent family members shall be retained
Chapter 31 General Provisions on Enforcement Procedures (Simple Enforcement Guarantee and Objection, Other Subtopics)
Section 1 Execution Subject, Execution Basis and Execution Jurisdiction (Browse)
The legally effective civil judgments and rulings, as well as the property part of criminal judgments and rulings, shall be enforced by the people's court of first instance or the people's court at the same level as the people's court of first instance in the place where the property to be executed is located. Other legal documents stipulated by the law to be executed by the people's court shall be executed by the people's court at the place where the person subject to execution is domiciled or where the property to be executed is located.
Section 2 Execution Guarantee (Short Answer)
The condition is
1. The initiation of the execution guarantee procedure can only be initiated by the person subject to execution, and the court shall not take the initiative to rule on the execution of the guarantee by ex officio
2. Subject to the consent of the enforceable creditor
3. The person subject to execution or other guarantors shall provide sufficient and reliable guarantees to the court
4. It is up to the court to decide whether to allow the execution of the guarantee and decide the period of suspension of execution
Section 3 Enforcement Objection (Short Answer)
condition
1. The subject of the objection can only be the interested person other than the enforcement case
2. The time to file an execution objection can only be after the start of the execution procedure but before the end
3. The third party can only raise objections in written form and provide corresponding evidence
4. The content of the objection is that the party outside the case has ownership of all or part of the subject matter of execution or other rights sufficient to exclude execution
deal with
No grounds, dismissed
The reason is established, and the ruling is to suspend/stop execution
Chapter 32 Implementation Measures (sub-headings)
Section 1 Implementation Measures for Property Payments (Understanding)
1. Execution measures for money payment claims
(1) Inquiry, freeze (one-time period of 6 months, if it fails to continue after the time limit, it will be automatically released), and transfer the deposit of the person subject to execution
(2) Withholding and withdrawing the income of the person subject to enforcement
2. Execution measures for payment of claims on non-monetary chattels
Sealing up, detaining, freezing, auctioning off, and selling off the part of the property of the person subject to execution that should perform the obligation
3. Enforcement measures on real estate
forced eviction
forced exit from land
Section 2 Implementation Measures for Behavior (Understanding)
1. Execution measures for the delivery of specific property and tickets
The executor summons both parties to appear in court or to the designated place, deliver in person, or be handed over by the executor, and be signed by the delivered person
2. Completing the implementation measures of the specified behavior in legal documents
Entrust others to complete, and the cost shall be borne by the person subject to enforcement, or detention, fine, or mandatory payment of late performance fees (indirect enforcement)
3. Execution measures for handling property right certificate procedures
Issue an enforcement assistance notice to relevant units, prohibiting the person subject to enforcement from transferring intellectual property rights
Section 3 Safeguard Implementation Measures (Understanding)
1. Search - the superintendent issues a search warrant
2. To order the person subject to execution to pay the interest on the delay and the late performance fee
3. Continue to implement the system
4. Execution of the third party's due creditor's rights
5. Property reporting system
6. The system of restricting exit, recording in the credit investigation system, and announcing debtor information in the media
7. Compulsory measures to hinder execution - summons, detention, fines
Chapter 33 The Process of Implementation (sub-headings)
Section 1 Execution Begins (Transfer Execution, Entrusted Execution Understanding)
1. Transferring for execution, ex officio execution, for some special cases, the judge voluntarily handed over the effective legal documents to the enforcement agency inside the court in accordance with the law, thereby initiating the execution procedure
apply to
(1) Four fees, one gold and one reward case
（2）已生效刑事法律文书中的财产部分
（3）法院作出的程序性民事裁定书、决定书
2.委托执行，经执行债权人申请或法院依职权开始后，如果被执行人或被执行财产在外地，法院直接执行确有困难时，可委托有关人民法院代为执行
（1）委托法院立案后1个月办妥委托执行手续
（2）收到执行函件15日开始执行
（3）未经受托法院同意，委托法院不得自行执行
（4）受委托法院不得自行裁定中止或者终结执行
第二节 执行中止（了解）
法定情形
（1）申请人表示可延期执行
（2）案外人对执行标的提出确有理由的异议
（3）作为一方当事人的公民死亡，需要等待继承人继承权利或者承担义务
（4）作为一方当事人的法人或者其他组织终止，尚未确定权利义务的承受人
（6）法院认为应当中止执行的其他情形
第三节 执行终结（了解）
1.执行终结情形
（1）申请人撤销申请的
（2）据以执行的法律文书被撤销的
（3）作为被执行人的公民死亡、无遗产可供执行，又无义务承担人的
（4）追索赡养费、抚育费、扶养费案件的权利人死亡的
（5）作为被执行人的公民因生活困难无力偿还借款，无收入来源，又丧失劳动能力的
（6）人民法院认为应当终结执行的其他执行
2.执行结案的情形
（1）生效法律文书确定的内容全部执行完毕
（2）裁定终结执行
（3）裁定不予执行
（4）当事人间达成执行和解协议并已履行完毕——执行中有和解无调解
第四节 执行回转（了解）
法院在执行过程中或执行完毕后，因据以执行的法律文书被依法撤销或者变更，由执行人员采取措施，将执行标的物恢复到执行程序开始前的状态的一种制度
可由当事人申请，也可依职权进行，执行回转应重新立案
第三十四章 对执行过程中特殊情况的处置（小题）
第一节 执行承担（浏览）
1.公民死亡，没放弃继承的继承人承担义务，可裁定变更被执行人，在遗产范围内偿债，放弃继承的，可直接执行遗产
2.法人或其他组织分离、合并的，由变更后的法人或其他组织承受
3.法人或其他组织被撤销的，由承受其实体权利义务、接受其财产的人、单位、组织承担
4.其他组织，由对该组织承担义务的人承担
第二节 执行和解（了解）
条件
1. It must be voluntary by both parties involved in the execution
2. Should be carried out during execution
3. It should be in written form or recorded by the executor (signature to take effect)
Section 3 Executing Competition and Cooperation (Understanding)
A state in which two or more enforcement creditors request the court to enforce the same property of the debtor at the same time or successively based on different enforcement grounds, but there is exclusion between the requests, and the rights of each creditor cannot be satisfied at the same time
Section 4 Participation in Assignment (Browse)
When the person subject to execution is a citizen or other organization, during the execution process, other creditors of the person subject to execution who have obtained the basis for money execution find that the property of the person subject to execution cannot pay off all the creditor's rights, and file an application to the court. There is a system of distribution of property
The claims that actually participate in the distribution must be money claims or claims that have been converted into money claims
Section 5 Executive Supervision (Browse)
1. The Supreme Court supervises the enforcement work of local courts at all levels and higher courts over lower courts
2. When the superior court notifies the suspension of execution, it shall specify the period of suspension of execution at the same time, which generally shall not exceed 3 months
Part Six: Civil Procedures Involving Hong Kong, Macao, Taiwan, and Foreign Countries (Browse briefly)