Short answer questions and case study

The difference between the 1, the civil procedure law and administrative litigation law.

Answer: the difference between civil procedure law and administrative procedure law. (1) the subject of litigation in different. The civil litigation subject is a citizen, legal person, quasi legal organization of the plaintiff and defendant,, third of them equal obligation, litigation, litigation right equivalence, in different case, can change position, the obligation to the relationship between different substantive rights and lawsuit has. The subject of administrative litigation's position is fixed, is relative to the human the plaintiff in administrative management, administrative subject in administrative management for the position, not conversion. Legal status of both parties of administrative litigation is different, the defendant is often an advantage. (2) the object of action of different. civil litigation object obligation between rights refers to the subject of litigation object, namely the parties request the people's court has confirmed the two sides dispute the parties rights and obligations. The object of administrative litigation is the concrete administrative behavior in the implementation of administrative management, relative to act to the people's court, caused by the administrative litigation. (3) some different program, system. In the procedure, the civil procedure law in the ordinary procedure, also provides a simple procedure, where the mediation shall be capable of mediation. In order to improve litigation efficiency and quality, also provides mediation system. in administrative litigation provisions of the summary procedure, neither, nor the provisions of mediation. (4) the provisions of the different burden of proof. The provisions of the civil procedure law, the fact of the dispute is not clear, is unclear, the adverse consequences of litigation generally assumed by the plaintiff; in special circumstances, burden of proof, the defendant shall bear the burden of proof.

The provision of the administrative litigation law, the administrative subject by the defendant bear the burden of proof, provide evidential materials to prove that a specific administrative act of their own right and legal basis. (5) provide evidence for different time. In civil proceedings, the people's court before the judgment, the parties can provide proof materials, their claims to support, this is provided from the respect of lawsuit status and make. In 2001 the Supreme People's Court judicial interpretation, require the parties to comply with the contract by themselves or by the time limit specified by the people's court. However, the law does not change. In administrative proceedings, due to the special position of the defendant, the people's court does not support the defendant and his agent in the specific administrative act to collect evidence, under special circumstances, the defendant with permission of the people's court, can supplement the relevant evidence.

The difference between the 2, civil procedure law and criminal procedure law.

Answer: (1) the subject of litigation; (2) different litigation principle, system; (3) different political system; (4) special procedures are different; (5) executing the program with different.

What are the main contents of the 3, civil procedure justice including?

Answer: (1) the neutrality of the judge. (2) the parties have equal status. (3) the parties involved in litigation procedure. (4) the stability of the procedure.

4, the law of civil procedure of the content?

Answer: the notary law, mediation, arbitration law, procedure law, law enforcement.

What are the 5, the collegiate bench trial activities should follow the principle?

Answer: the judge responsible principle.

6, the principle of equality of civil litigation in the meaning of.

Answer: the principle of equality of civil litigation in the meaning of. (1) the parties of equal legal status. (2) the lawsuit right of equality. (3) the parties have equal to exercise their litigation rights means. (4) the parties bear the legal equality of obligation.

What are the 7, the collegiate bench trial activities shall follow the principle of?

Answer: (1) the judge responsible principle. The judge held by court or judge appointed judges a person; if the president or the chief judge in the trial, he shall act as the presiding judge; the jury can not serve as the presiding judge. (2) the minority is subordinate to the majority, the members of the collegial panel shall enjoy the same rights, we should promote democracy, common agreement, when disagreement, implementation of the principle of majority rule, in the opinion of the majority as a collegial panel decisions.

Action 8, civil litigants of their litigation rights in which several major performance?

Answer: the right to sue; the withdrawal right, request conciliation right, right of appeal, the right of application for retrial, execute the right to apply for.

9, the concept of public trial system. Which cases can not open trial?

Answer: the open trial system, is refers to the people's court trial of civil cases, in addition to collegiate bench, in accordance with the law to the public system. Do not open the trial of the case include the following: (1) cases involving state secrets. (2) cases involving personal privacy. (3) cases of divorce. (4) cases involving commercial secrets.

10, what is the level of jurisdiction? What is the territorial jurisdiction?

Answer: the jurisdiction, is refers to between the inferior people's Court Division of division of labor and rights in civil cases of first instance. Territorial jurisdiction, is that determining the people's courts at the same level in their respective jurisdictions accept the division of labor and rights in civil cases of first instance.

The 11, ruling jurisdiction includes which of the three kinds of jurisdiction?

Answer: (1) transfer of jurisdiction, is the people's court has accepted the case, the court had no jurisdiction to the case, in accordance with the law to transfer the case to a court of competent jurisdiction trial system; (2) specify the jurisdiction, is refers to the people's court at a higher level in the ruling way, if the people's court to exercise the jurisdiction specified on a case system; (3) jurisdiction transfer, refers to the people's court at a higher level to decide or agree, the jurisdiction of a case by a higher court to a lower court, or by the people's court at a lower level to a superior people's court system.

Type 12, exclusive jurisdiction.

Answer: (1) the immovable property dispute lawsuit, not under the jurisdiction of the people's court by the real estate is located; (2) brought on a dispute over port operations in the litigation, the port where the jurisdiction of the people's court; (3) due to inheritance lawsuit by the time of his death was home or the main legacy lies under the jurisdiction of the people's court.

Special legal characteristics, the plaintiff and the defendant has 13.

Answer: special legal characteristics of the plaintiff and the defendant has. (1) the plaintiff is caused by the procedure of people; (2) the defendant is by the people's court summons to the people; (3) the plaintiff and the defendant is in the relative position.

The difference between the 14, the third party with independent claims and the third party without independent claim.

Answer: is there a difference right to request an independent third party and the third party without independent claim. (1) to participate in the litigation according to different.

The former is to participate in the proceedings of the dispute according to the object of action has an independent claim; the latter to participate in the proceedings of the plaintiff was according to the controversial subject matter of litigation without independent claim, but the outcome of the case and he has interests in law. (2) the different lawsuit status. The former is the plaintiff in the lawsuit; the latter is not the plaintiff, the defendant is not, but the action of one party to stand together, but also has the independent legal status of the participants. (3) legal rights of different. The former is entitled to all the rights of the plaintiff; the latter is not the plaintiff, not the defendant, has an independent legal status to participate in. (4) to participate in the litigation in different ways. The former is determined by the parties themselves to participate in the litigation, court shall not force; the latter can apply to participate in the proceedings, the court also can notify them to participate in the proceedings.

What are the characteristics of the 15, common lawsuit people?

Answer: (1) the subject of litigation in the more than two people or two people; (2) the object of action is common or the same kind.

16, the civil service manner.

Answer: the civil service mode. (1) direct service. The people's court sent the litigation documents directly to the recipient of the service. (2) retention of service. The recipient of the service has no reason to refuse to sign the litigation documents, service will be in accordance with the law litigation documents are placed in the recipient of the service shall be deemed the way home. (3) commissioned service. The people's court served directly is difficult, the other court for delivery of the consignment. (4) the mail delivery and delivered to. Mail delivery is the people's courts will need to be served by post litigation documents by registered letter form, mail to the recipient of the service. The court will be delivered to the litigation documents to the addressee unit collecting forwarded to the recipient. (5) announcement service. In the addressee in a special mode of service people One's whereabouts is a mystery. or adopting the method cannot be adopted during the service.

What are the 17 mandatory measures, obstruction of civil litigation?

Answer: according to the provisions of the civil procedure law, hamper the civil litigation compulsory measures include five categories: (1) compulsory summon (2). (3) ordered out of the courtroom (4) fine (5) detention

18, the civil litigation evidence should have the condition.

Answer: evidence in civil litigation shall have the conditions. (1) the evidence must be objective facts; (2) must be objective facts have inner connection with the case; (3) must be the law allows the objective facts as evidence; (4) must be objective facts made in accordance with the statutory procedures.

19, the type of evidence in civil litigation.

Answer: the types of evidence in civil litigation. (1) documentary evidence (2) (3) as the Xin data (4) testimony of witnesses (5) statements of the parties (6) the identification conclusion (7) the written record of the inspection.

Division 20, theoretically, the evidence of civil litigation can be divided into several categories?

Answer: (1) according to the sources of evidence, the government is divided into the original evidence and derivative evidence; (2) according to the relationship between evidence and facts to be proved, the government can be divided into direct and indirect evidence; (3) according to whether the evidence presented by the proof should and can prove the facts the evidence, can be divided into the certificate and proof.

21, the prosecution condition.

Answer: (1) form elements. First of all, must submit the complaint. (4) Secondly, must pay the cost of litigation. (2) substantial elements. firstly, the citizen, legal person or other case has a direct interest in the relationship with. Secondly, there are definite defendant. third, there are specific claims, and the facts. Fourth, belonging to the people's court accepts a civil action range and governed by the people's Court of appeal.

22, the indictment content.

A; (1) the basic information of the parties concerned. Include name, sex, age, occupation, work units, domicile, legal representative name etc.. (2) the claim and the facts and reasons. (3) the evidence and its source.

23, the trial procedures.

Answer: the trial procedure. (1) court preparation (2) announced the court (3) the court investigation (4) (5) the court debate after court mediation (6) (7) of collegiate bench judgment

The difference between the 24, the second instance procedure and the procedure of first instance.

Answer: (1) the reason of different procedures. The first procedure is based on the parties to exercise the right of action. Occurrence of the procedure of second instance is given to the parties to exercise the right of appeal. (2) trial object. The object of trial procedure of first instance, the plaintiff, defendant disputed civil legal relationship and the facts. The object of trial of second instance procedure in adjudication of first instance, is determining whether the facts and the applicable law is correct. (3) the application procedure is different. The court of first instance trial of civil cases, can apply the ordinary procedure, also can apply summary procedure, and must be hearing, can not make a judgment. The second instance court cannot apply summary procedure, the facts are clear, do not need to appeal the court hearing, may make a judgment. (4) the effect of different. The first trial decision and allowed the determination of appeals, legal effect does not occur during the appeal is made in accordance with the procedure of second instance; the referee, the declaration and delivery, which takes legal effect, is the final judgment no appeal.

25, the simple procedure:

Answer: (1) the prosecution way is simple, the simple civil cases, the plaintiff may indict verbally, do not attach any conditions and restrictions.

(2) the acceptance procedure is simple; (3) to summon the parties, witnesses are simple, can at any time to summon the parties, witnesses; (4) the trial organization is simple, a single judge; (5) the trial procedure is simple; (6) concluded a shorter duration, 3 months.

26 different points, appeals and charges.

Answer: (1) causes the different lawsuit; (2) filed a lawsuit for different purposes; (3) a lawsuit time requirements are different; (4) filed a lawsuit in different forms.

27, the protest conditions.

Answer: protest conditions. (1) proposed by the people's Procuratorate has the right to protest; (2) only in the presence of the legal situation, to the people's procuratorate. The original judgment, ruling the main evidence for ascertaining the facts in the original judgment, ruling is insufficient; the law applicable to an error; the people's court violates the legal procedure, may affect the correct judgment, ruling of the case; the judges who take bribes, in the hearing of cases play favouritism and commit irregularities, perverted the law behavior. (3) the people's court have jurisdiction to submit the right to protest.

28, the characteristics of trial supervision.

Answer: (1) the trial object is the effective legal documents; (2) the trial is the reason for the judgment is wrong; (3) cause the body to the procedure for trial supervision occur is of adjudication supervision power of the state organs, people's courts and the people's procuratorates; (4) special trial procedure is not set, not suitable for pretrial procedure is the procedure of second instance.

Three cases filed trial supervision procedure 29, the people's court.

Answer: three cases about the procedure for trial supervision by the people's court. (1) of the people's courts at all levels, found the hospital to be effective umpire, mediation is wrong, need the retrial, the retrial can. (2) the Supreme People's court has effect on the local people's courts at various levels of judgment, mediation book mistakes are found, to the retrial procedure. (3) the superior people's court has effect on the lower level people's court finds definite error in judgment, mediation, the retrial procedure.

30, the party applying retrial conditions.

Answer: the party applying retrial conditions. (1) the main application for retrial is enjoys the right of application for retrial citizens, legal and quasi legal organizations according to law. (2) that the people's court a legally effective judgment, ruling error. (3) an effective judgment, ruling, mediation has the statutory subject matter. (4) within the statutory time limit, apply for retrial.

31, the people's court in accordance with the terms of the retrial must have what conditions?

Answer: (1) the subject of retrial should be statutory authorities or public servants; (2) the object of retrial should be the people's court which has taken legal effect is a wrong decision, ruling; (3) must mention the procedure for trial supervision organizations to make rulings.

32, the protest conditions.

Answer: protest conditions. (1) proposed by the people's Procuratorate has the right to protest; (2) only in the presence of the legal situation, to the people's procuratorate. The original judgment, ruling the main evidence for ascertaining the facts in the original judgment, ruling is insufficient; the law applicable to error; the people's court violates the legal procedure, may affect the correct judgment, ruling of the case; the judge to have taken bribes in the trial of the case, judge play favouritism and commit irregularities, perverting the law. (3) the people's court have jurisdiction to submit the appeal

What are the main features of 33, protest?

Answer: (1) the protest is the main body of people's Procuratorate has the function of legal supervision. (2) the protest is the object of people's court has sentenced verdict, ruling. (3) the protest according to legal procedures. (4) a protested case shall retry the case.

34, the people's Procuratorate to present legal circumstances of protest of what?

Answer: (1) the original judgment, ruling the main evidence for ascertaining the facts is insufficient. (2) the original judgment, that there is some error in the application of the law. (3) the people's court violates the legal procedure, may affect the correct judgment, ruling of the case. (4) the judicial officers have corruption and bribery, in the hearing of cases play favouritism and commit irregularities, perverted the law behavior.

35, what is the court mediation? What are the principles of the court mediation?

Answer: the court mediation, refers to the judicial personnel of people's court under the auspices of the both parties in dispute, substantive rights, obligations of voluntary consultation, to reach agreement, dispute settlement activities. Including the principle of court mediation: (1) the principle of voluntariness. The principle of voluntary contains program on voluntary (i.e., both parties voluntarily apply to settle the dispute by mediation or the parties agree that the people's Court of the settlement of disputes by mediation) rent entities on the voluntary (i.e., the content of the mediation agreement must be the true meaning of the parties.).(2) the authenticity principle. To request the people's court to ascertain the parties disputed the basic legal relationship. (3) the principle of legality. One is the legal procedures, according to legal procedures; two legal entity, the agreement must comply with the laws and regulations.

36, according to the civil procedure law and the relevant provisions, which are to be the default judgment?

Answer: (1) the plaintiff having been served with a summons, refuses to appear in court, or midway without permission by the court adjourned, defendant, may make a judgment by default. (2) the plaintiff applies for withdrawal of the case, court decides not to withdraw, after the subpoena refuses to appear in court, may make a judgment by default. (3) the defendant after the subpoena, refuses to appear in court, or the court midway without permission by the court, may make a judgment by default. (4) without the capacity to engage in litigation plaintiff statutory agent, after the subpoena refuses to appear in court or midway without permission by the court adjourned, may make a judgment by default.

What are the 37 types, the civil judgment?

Answer: (1) according to the nature of civil judgment, can be divided into the confirmation decision, payment judgment and change decision; (2) according to the content of judgement, can be divided into full sentences and sentence; (3) according to the nature of the case to make judgment, can be divided into litigation and non litigation cases judgment; (4) according to whether the parties in court, can be divided into the bench trial and judgment by default; (5) in accordance with the decision of the legal effect, can be divided into effective judgment and not effective judgment.

38, the special procedure.

Answer: (1) the nature of the case hearing is special; (2) the special; (3) special trial organization; (4) a trial; (5) the trial period is short; (6) does not apply to the procedure for trial supervision; (7) the exemption of the litigation fee; (8) special procedures are not universal practicability.

39, the declaration of a death case must have what conditions?

Answer: (1) there must be a citizen to leave their last domicile or residence, One's whereabouts is a mystery. fact, (2) One's whereabouts is a mystery. shall be covered with the statutory time limit; (3) must be made by the parties to the people's court may apply for declaration of death; (4) interested parties shall apply to the declaration of death One's whereabouts is a mystery. the basic people's Court of the place of domicile.

40, the declaration of a missing conditions?

Answer: (1) there must be a citizen to leave his domicile or residence, One's whereabouts is a mystery. facts; (2) One's whereabouts is a mystery. time, must be continuous period of 2 years; (3) must be interested in One's whereabouts is a mystery. citizens who proposed to apply to the people's court; (4) a written application; (5) by the jurisdiction One's whereabouts is a mystery. citizen's last domicile or residence of the grassroots people's court.

41, the supervising procedure

Answer: (1) the special procedures; (2) specific applicable cases; (3) payment to the conditionality; (4) the selectivity of application.

42 characteristics, formula for exhortation program

Answer: (1) scope of application has specific; (2) the applicant has a specific; (3) to the other party with uncertainty.

43, conditional execution

Answer: (1) must take effective legal documents as the basis; (2) as a legal instrument on the basis of the implementation must have the benefit contents; (3) must be the obligor refuses to perform the obligation of.

44, foreign civil litigation performance:

(1) the main dispute legal relationship of one party or both parties are foreigners, stateless persons, foreign enterprises and organizations; (2) the legal fact generation of legal relationship, the change in foreign countries; (3) controversial subject matter in a foreign civil case.

45, the characteristics of civil action

Answer: (1) relates to national sovereignty; (2) the trial of civil cases involving foreign element, has the problem of applicable law; (3) some actions should be completed abroad; (4) during the long civil litigation.

What are the 46 general principles, foreign-related civil procedure?

Answer: (1) the application of our civil procedure law (2) the principle of national sovereignty (3) application of relevant international treaties (4) the principle of judicial immunity principle.