Editor's note:2013Years1Month1Day, the amendment of civil procedural law after the formal implementation. Civil law as the basic guidance of civil litigation, significance. After the political, academic, judicial practice and social legal person fully discussed, repeated assessment, deliberations, the Standing Committee of the NPC approved by the twenty-eighth conference. The draft revision process more easily in the civil procedure law, compared to the original civil procedure law, the revision of the distinctive features of. Determine the position, civil mediation procedure and other hot issues aroused heated debate. The teacher Bao Bingfeng "Civil Procedure Law" revised interpretation lecture content as follows, to readers.

A,    The unique experience and Chinese mediation system

The court mediation "four in one" system: the people's court mediation, mediation, pretrial mediation and court mediation.

(a) the people's court mediation principle

The Civil Procedure Law (2013) article9Article:The people's court shall carry out mediation, on a voluntary and lawful basis; if conciliation is unsuccessful, a judgment shall be made without delay.

Two.Mediation

The Civil Procedure Law (2013) article122Article:The prosecution to the court for civil disputes, mediation, conciliation, the parties to the mediation except.

Interpretation:Because the mediation stage in the prosecution case after, before, can be called the filing period mediation. Mediation and court mediation not only, also can be the court mediation, in general people's mediation shall prevail, its essence is to fight for the litigation in the court outside the gate.

(three) the pretrial mediation

The Civil Procedure Law (2013) article133Article:The people's Court on the admissibility of the case before the court, can mediate, adopt mediationTimelySettlement of disputes.

(four) court mediation

The Civil Procedure Law (2013) article142Article:Prior to the rendering of a judgment, can also be used for mediation, the mediation fails, a judgment shall be made without delay.

Interpretation:At present, the courts at all levels of rigid requirements under the mediation, the mediation of substantive dispute function value is weak, greatly the use of mediation will soften the substantive law and the procedural law.

 

2011Years "people's Mediation Law" formally implemented, and now one year and more, the Civil Procedure Law (2013The procedure for determining the mediation agreement) to solve the problem of litigation and mediation.

The Civil Procedure Law (2013) article194Article:Apply for judicial confirmation of the mediation agreement by both parties in accordance with the law, the people's mediation method, within thirty days since the effective mediation agreement, mediation organization to the basic people's court at the place.

Interpretation:As the only confirmed the fact and legal status of non litigation procedure and special procedure, the determination of the case does not solve real disputes mediation agreement. Article194Is not simply refer to the cases by the people's mediation, "and" legal basis appeared word also embodies the space and flexibility of Xinmin litigation, does not exclude other possible forms of mediation. Apply for judicial confirmation to the parties together for voluntary expression of autonomy.

The Civil Procedure Law (2013) article195Article:The people's court after the acceptance of the application, after examination, in accordance with the law, that the effect of the mediation agreement, a party refuses to perform or fails to fully perform, the other party may apply to the people's court for enforcement; do not comply with the provisions of the law, the court rejected the request, the parties may change the original settlement agreement through conciliation or mediation agreement reached a new, also may bring a lawsuit to the people's court.

Interpretation:Give the order execution.

Two,    The principle of honesty and credit

The Civil Procedure Law (2013) article13Article:Civil actionWe should follow the principle of honesty and credit.

Interpretation:This article is a false litigation, abuse of procedural rights restrictions. In addition, this article not only constraint the constraints, also stems from the court, a court may abuse the jurisdiction.

Three,    Public interest litigation

The Civil Procedure Law (2013) article55Article:The pollution of the environment infringement of the legitimate rights and interests of consumers, many damages social public interests, the law of the relevant organs and organizations can bring a lawsuit to the people's court.

Interpretation:Public interest litigation in the special provisions. Public interest litigation type is defined as conduct harmful to the public interest litigation subject to legal provisions, and the relevant organs and organizations. At present, only the "marine environmental protection law" article90The provisions on behalf of the state to exercise the power of supervision and management of the marine department may initiate public interest litigation. The subject explicitly exclude the Procuratorates as public interest litigation. Relax the litigant may lead to the litigious right which the social instability.

Four,    The withdraw of the third person

The Civil Procedure Law (2013) article56Article:Third people, because you cannot blame me for not to participate in the litigation, but there is evidence that a legally effective judgment, ruling, mediation book all or part of the error, damage the civil rights and interests, can be self knows or should know within six months of the civil rights of the date of injury, to make the the judgment, ruling, the people's court mediation. The people's court, the claim is established, shall be changed or reverse the original judgment, ruling, mediation; litigation request is not established, dismissed the action request.

Interpretation:The withdraw of the third person in third special section. Is a supplement to the retrial system is not perfect and the stranger dissent action of execution vulnerability. In the implementation process of the object of execution, an outsider raises a written objection, the people's court shall, within fifteen days from the date of receiving the written objection review date, reasonable, order to suspend on the target execution; reason not to set up, the court rejected. An outsider, party is dissatisfied with the ruling, the original judgment, ruling that the wrong, be dealt with in accordance with the procedure for trial supervision; has nothing to do with the original judgment, ruling, may institute proceedings in a people's court within fifteen days after the decision is served. Shall be handled in accordance with the procedure for trial supervision; has nothing to do with the original judgment, ruling, a separate action cannot be solved with the original judgment conflict. The withdraw of the third person premise: because you cannot blame my reasons; Objective: to change or revoke the effective judgment, ruling, mediation; time:6Months; the jurisdiction of the court: the original make parties: parties to the protocol. The withdraw of the third person may file an appeal to the court.

Five,    Malicious Litigation

The Civil Procedure Law (2013) article112Article:Between the parties malicious collusion, in an attempt to litigation, mediation, infringes upon the lawful rights and interests, the people's court shall reject the request, and according to the seriousness of the circumstances, impose a fine of detention; constitutes a crime, shall be investigated for criminal responsibility according to law.

Interpretation:The criminal responsibility of the academic bad conviction.

The Civil Procedure Law (2013) article113Article:The execution of malicious collusion with others, through litigation, arbitration, mediation and other ways to escape to perform the obligations specified in the legal document, the people's court shall according to the seriousness of the circumstances, impose a fine of detention; constitutes a crime, shall be investigated for criminal responsibility according to law.

Interpretation:Criminal responsibility is refusing to implement the decision, ruled that the crime.

Six,    The prosecution case

The Civil Procedure Law (2013) article123Article:The people's court shall safeguard the parties in accordance with the law to enjoy the right to sue. In accordance with the law article 119th prosecution, must accept. In line with the conditions for prosecution, shall be filed within seven days, and notify the party concerned; do not meet the conditions of prosecution, shall make a ruling within seven days, will not be accepted; the plaintiff is dissatisfied with the ruling, it may file an appeal.

Interpretation:In the beginning of legislation, academic esteem in the registration system established in China instead of filing review system, in order to maximize the protection of the right of action, which is strongly opposed by the court. The court thinks, the case review system of cases have been numerous case, cut open too large will enable the court to overload. In addition, this article applies to exclude court self limiting prosecution of the background, all the parties have the right to sue, shall file the case, the court must accept. And7Ruled inadmissible Book days, is inadmissible ruling must be presented in written form, to a certain extent solved the problem of oral shall not accept relief channel is not smooth.

Seven,    Pretrial, distributary of cases

The Civil Procedure Law (2013) article133Article:The people's Court on the admissibility of the case, respectively, to deal with:

(a) if the parties do not dispute, comply with the procedure prescribed conditions, can be transferred to the supervising procedure(the order of payment mode, legal fees charged 1/3.);

(two) before the court can mediate mediation to resolve disputes, to take timely(mediation litigation fees charged by half);

(three) according to the circumstances of the case, to determine the application of simple procedure or the ordinary procedure(simple procedure litigation fees charged by half, the summary procedure in the applicable rate of legal practice in China's current at80%);

(four) the court session is required, by requiring the parties concerned to exchange evidence and so on, clear the focus of controversy.(to the centralized trial purposes)

Interpretation:For the case without any dispute, is not entirely without controversy, in addition, meet the conditions provided for the supervising procedure, the supervising procedure does not require the consent of the parties agree that.

Eight,    Small claims procedure

The Civil Procedure Law (2013) article162Article:In trying a simple civil case in accordance with the law 157th the provisions of the first paragraph of the basic people's court and the tribunals dispatched by it, subject to the provinces, autonomous regions, municipalities directly under the central government last year's annual average wage of employees below thirty percent, execute a court.

The Civil Procedure Law (2013) article157Article:In trying a simple civil case facts are clear, the relationship between the rights and obligations are clear, the controversy is the basic people's court and the tribunals dispatched by it, the provisions of this chapter shall apply. The trial of civil cases prescribed in the preceding paragraph at the basic people's court and the tribunals dispatched by it, the parties may agree to apply summary procedure.

Interpretation:Small claims procedure specified in the summary procedure changes, itself is not completely independent. Implementation of the "small quick judging" concept, the trial period is one month, litigation fees charged by half. The small case although not appeal, but does not prohibit the application for retrial. In this article: the paradox of lawsuit against the application for retrial, in accordance with the procedure of first instance trial, the judgment made by the court, can be appealed, and in accordance with the procedure of second instance retrial cases, cannot be appealed. Therefore, small claims cases can be prohibitive provisions to avoid cannot be appealed by the application for retrial in essence. Small litigation is compulsory, and strive to be destroyed in the base case, in order to reduce the pressure of the superior court.

Nine,    Procedure of second instance

The second instance trial

The Civil Procedure Law (2013) article169Article:The people's Court of second instance cases on appeal, shall form a collegial panel, trial. After the examination, investigation and questioning the parties, no new facts, evidence or reason, the collegial panel considers that it is not necessary to conduct a trial, the trial can not.

Interpretation:Changes in hearing cases will not be restricted in the absence of new facts, evidence or reason, the original size judgment (not the trial judge) limit.

The court of second instance judgment

The Civil Procedure Law (2013) article170Article:The people's Court of second instance cases on appeal, after hearing, according to the following circumstances, respectively:

(a) the original judgment, ruling that the facts are clear, the correct application of law, judgment, ruling way to dismiss the appeal, upheld the original verdict, ruling;

(two) the original decision, ruled that the error error of fact or law, the judgment, ruling way, the judgment shall be amended according to cancel or change;

(three) the original verdict that the basic facts are not clear, rescind the original judgment, the people's court remanded retrial, or find out the facts adjudged;

(four) the original judgment or missing judgment by default, illegal partiesSeriousViolation of legal procedures, rescind the original judgment, back to the trial court for a retrial.

The people's court ruled on rehearing of the case, the parties filed an appeal, the people's Court of second instance shall not remand.

Interpretation:Article (three), the lack of evidence from the general principle, to determine the basic facts are not clear. Article (four), missing the parties occurred in necessary common litigation procedure can not be a.

Ten,    The application for retrial

Jurisdiction over the parties to apply for a retrial

The Civil Procedure Law (2013) article199Article:The parties to a legally effective judgment, ruling, that is wrong, may apply to a people's court at a higher level for retrial; one party or both parties for the large number of civil cases, it may appeal to the trial court for retrial. The parties apply for a retrial, judgment, execution of the ruling shall not stop.

Interpretation:Where one party or both parties for the large number of civil cases, it may appeal to the trial court for retrial main source for the steady pressure.

The change of the party applying retrial

The Civil Procedure Law (2013) article200Article:The application of the parties in accordance with the following circumstances, the people's court shall review:

(a) there is new evidence, to reverse the original judgment, ruling;

(two) the original decision, ruled that the basic facts of the lack of evidence;

(three) the original judgment, ruling the main evidence for ascertaining the facts is false;

(four) the original judgment, ruling the main evidence for ascertaining the facts without quality certificates;

(five) the necessary for the trial of the caseThe main evidenceBecause of objective reasons, the parties can not be collected, the people's court for a written investigation and collection, the people's court has not collected;

(six) the original judgment, that there is some error in the application of the law;

(seven) the judicial officers. Judicial organization of illegal or should be avoided in accordance with the law without avoidance;

(eight) without the capacity for action without statutory agent or litigation shall be parties, because you cannot blame themselves or their agents ad litem reasons, did not participate in the proceedings;

(nine) in violation of the provisions of laws, depriving party debate right;

(ten) has not been served with a summons, judgment by default;

(eleven) the original decision, ruled that the omission or beyond the litigation request;

(twelve) according to legal instruments to make the original decision, ruled that the revocation or modification;

(thirteen) the trial of the case with corruption and bribery, play favouritism and commit irregularities, perverted the law behavior.

Interpretation:Delete the provisions of jurisdiction in error. Generally, the internal behavior under the jurisdiction of court system, and perform the jurisdiction clause implied agreement (a party suing, litigant plea, considered to have jurisdiction). Remove the Miscellaneous Provisions, limiting discretion court high power.

The provisions of the trial period

The Civil Procedure Law (2013) article204Article:The people's court shall review within three months from receipt of the application for retrial, in accordance with the provisions of this law, ruling retrial; do not conform to the provisions of this law, the court rejected the application. If extension is needed, approved by the president of the court.

For the retrial jurisdiction

The Civil Procedure Law (2013) article204Article:The application of a party concerned, ruling retrial cases tried by a people's court above the intermediate people's court, but the parties in accordance with the provisions of law 199th choice except to the grassroots people's court for retrial.

Not to suspend the execution situation

The Civil Procedure Law (2013) article206Article:In accordance with the procedure for trial supervisionRetrialThe case, ruled that the suspension of the original judgment, ruling,Mediation bookThe execution, but the recourse of alimony, maintenance, upbringing, pension, medical expenses, labor compensation and other cases, it may not suspend the execution(same as before performing range).

Apply for a retrial time limit

The Civil Procedure Law (2013) article205Article:Parties to apply for a retrial, the judgment, ruling shall take legal effect within six months are presented; the 200th article of this law the first, third, twelfth, thirteenth regulations, self aware or should be made within six months to know the day.

Procuratorial suggestions

The Civil Procedure Law (2013) article206Article:The Supreme People's Procuratorate of the people's courts at all levels have a legally effective judgment, ruling, the people's Procuratorate at a higher level to the lower level people's court a legally effective judgment, ruling, found the law the 200th regulation circumstances, or the discovery of mediation book damage to national interests, social public interests, it shall lodge a protest.

Local people's procuratorates of the people's courts at the same level a legally effective judgment, ruling, found the law the 200th regulation circumstances, or foundPublic interest mediation book damage the interests of the state, societySureThe procuratorial suggestions to the people's court at the same level,And report for the record the higher people's Procuratorate; can also draw a superior people's Procuratorate protest to the people's court at the same level.

Illegal judicial personnel of people's procuratorates at all levels except for the procedure for trial supervision other trial procedure, have the right to put forward the proposal to the people's courts at the same level.

The parties to the procuratorate for procuratorial suggestions

The Civil Procedure Law (2013) article209Article:In one of the following cases, the parties may apply to the people's Procuratorate procuratorial suggestions or protest:

(a) people's court rejected the application for retrial;

(two) the people's court fails to apply for retrial ruling;

(three) if the second judgment, ruling is obviously wrong.

The people's Procuratorate shall conduct examination within three months of the request of the parties concerned, made or not present procuratorial suggestions or protest decision. The parties may not apply again to the people's Procuratorate procuratorial suggestions or protest.

The people's Procuratorate investigation right

The Civil Procedure Law (2013) article209Article:The people's Procuratorate for the performance of the legal responsibilities of supervision required procuratorial suggestions or protest, can the party or an outsider investigations to verify the situation.

Author brief introduction:Bao Bingfeng, male,1981Born in Yuhuan County, Zhejiang province. Southwest University of Political Science and Law law school associate professor, master's tutor, doctor of law.1998He was admitted to Southwest University of Political Science and Law,2002Years to2005Years of study for a master's degree in Southwest University of Political Science and Law,2008Years to2011From the Southwest University of Political Science and Law phd.2005Years after graduation to teach in the University, mainly introduces the "Civil Procedure Law", "civil difficult case analysis (double -)" and "lawyers notary and arbitration" courses.

Bao Bingfeng presided over the subject of Ministry of education "study of civil litigation reconciliation system -- on the dispute settlement system of strengthening and expansion as the center" from the perspective of contract selection process, the main research topic "Chongqing City Board of education law practice innovation mode of research", and to participate in other five national and provincial research. In the "modern law", "Journal of Southwest University of Political Science and Law" and other journals40Papers. Personal publishing monographs "Research on the system of obstruction of evidence in civil litigation", co-author of "Civil Procedure Law", "according to the guidelines and basic principle of civil procedure law and system" etc.. Among them, personal monograph "spoliation of evidence in civil litigation system research" was awarded the third outstanding achievements in scientific research of young civil procedure law books category the first prize. This book is based on his doctoral thesis on the revisions, the doctoral thesis won"2011Southwest University of Political Science and Law doctoral thesis "and" the Chen Guangzhong lawsuit outstanding dissertation award".2011Years won the excellent award of Southwest University of Political Science and Law "wonderful lesson" teaching competition.

(collator:2010Li Tao)