During the validity of the second instance of civil trial court case decision

The Supreme People's court and Kan "guiding case" published can create legal norms

Civil cases of second instance court during the parties reached a settlement agreement and the withdrawal of appeal case first instance judgment on whether the entry into force of the great controversy. There are mainly two kinds of views, one is that during the trial of second instance withdrawal of appeal, deemed not appeal, the trial nature takes legal effect, the other is that the parties in the appeal appeal trial period, therefore has not yet entered into force, and the two sides reached a settlement agreement, unilateral or double side disposition corresponding substantive rights and litigation right, which includes parts of substantive rights or supported by the judgment of first instance, according to the spirit of the law of civil autonomy, the first instance did not have the force of law. Not long ago, according to the "Supreme People's courtProvisions concerning the case guidance"Released the first batch of guiding cases, which is involved in this case, and published in the case also issued a corresponding" guiding spirit "are as follows:

(two) Wu Meisu Sichuan Province Meishan Xicheng paper company sale contract dispute, to correctly handle the relationship between effectiveness of litigation settlement and judgment. The case confirmed: for the parties to reach a lawsuit in the second period and settlement after the withdrawal of the suit, the party concerned shall fulfill the. If one party fails to perform or not to perform the mediation agreement, the other party may apply to the people's Court of first instance judgment. Thus both respect the parties to the dispute of the free disposition, emphasizes the protocol must keep to rules, and maintain the people's court authority (case details see enclosure).

From the perspective of guidance, validity issues during the second instance of civil trial seems to settle out of court cases will now fall tuning hammer. Because according to the Supreme People's court "Provisions concerning the case guidance"The provisions of article seventh: Case guidance issued by the Supreme People's court, the people's courts at all levels shall refer to the trial of similar cases.The "guiding spirit" give people the feeling is more like "judicial interpretation", it has created a legal norm too.

People could not find the North place, judge whether the reference "similar case" itself to the referee, or directly by the Supreme People's Court promulgated the "case guiding spirit" content to the referee. These are apparently different trial logic thinking process, the quality of the former will contrast the case in court with "guiding case" feature, that "similar" confirmed after the reference referee, this is an analogy of the law, while the latter is the "logical thinking process deduction method". The results obtained from these two different trial process of logical thinking is not the same or different.

Ask: if you judge, you will choose what kind of trial logic to judge their case? Perhaps you will say I will play round two trial logic to judge. This answer quite a little eloquence, but really it is really not that thing, you will be in a dilemma. Because the processing according to the method of analogy applicable, you may find that your case with "guiding case" has the distinction of a lot of matter, even in all during the trial of second instance reached an out of court settlement agreement and withdraw, no other "similar" characteristics, should not reference; but in accordance with the "guiding spirit" the referee, can refer to, "the guiding spirit" has given "universality" of the "rules", "standard" -- For the parties to litigation in the second period of reconciliation agreement after the withdrawal of the suit, the party concerned shall fulfill the. If one party fails to perform or not to perform the mediation agreement, the other party may apply to the people's Court of first instance judgment. Of course, this "rule" is not dead, also seems to leave adequate leeway -- the other party just "can" for the first instance judgment, the final decision to enforce a judgment made by court rulings.

So, the validity of civil second instance trial court settlement during withdrawal cases will seem difficult to have the conclusion, but this is only theoretical over ideas, many of the lower court of law or judicial interpretation of "can", like "should be" to treat. Because the law that says "can" do, why I do not, must go to those who consider the "can't" or "can't" factor? Those who "can't" or "can not" find out maybe have not set the other clear legal norms, lane is bad to the whole a misjudged case.

Effectiveness in civil second instance trial during a court settlement in cases of withdrawal decision, the Supreme People's Court released the first batch of "guiding case" in the "guiding spirit" has offside suspicion, publishes guidance case is the meaning of "similar cases, the applicable law is similar to", rather than the creation of "judicial interpretation", and even is the "law", and the judicial interpretation formulation has been set program. Furthermore, China at present are not the case law, does not grant specific judge making law rules in the precedent, really want to do, have the legislative basis.

A case based on the inclusion of "guiding case", also with a "legal" characteristic "guiding spirit" was released, if the case is not representative of height, but the realization of individual justice, so it often caused by over the entire film error. Effect of civil second instance trial court settlement during withdrawal cases will should be through legislation or judicial interpretation of the way is clear, but not directly based only on a case that a universal standard new legal norms. All cases of second instance court settlement appears far more than publish in "guiding case" is much more complicated, especially in the case of the lawsuit and counterclaim joinder of reconciliation, on both sides is hardly a profit, also did not say must be a win-win situation, this is only when a parties after the evidence and the facts of a trial between the mutual compromise, in the meaning autonomous basically reached a settlement agreement, shall abide by the principle of good faith. If you simply think of second instance court settlement withdrawal, a trial takes legal effect, is likely to put aside the autonomy of the parties, to enforce a might as well have been a wrong judgment.

Explanation for similar cases: a contract dispute, a sues B request payment100Million, B is the counterclaim that the goods have quality problems, requirements cut payment and compensation for direct economic losses50Million. A trial of a litigation and counterclaim are successful, B lost. B the verdict of the first trial to appeal. During the appeal to the two sides reached a settlement agreement: a abandon insisted100Million payment, adjustment70Million, Party B is returned goods part of surviving conditions, and B give up cut procedure payment and compensation for economic loss claim. The two sides signed the settlement agreement, B withdrew the appeal. Then, in the performance of the settlement agreement, a back rejected B returns, and to the trial court for enforcement of a judgment.

In the example above, if the appeal trial withdrawal grounds that a legally effective judgment and enforcement, which is obviously very passive and unfair to B in terms of. A behavior let people feel "deception", the settlement agreement does not keep the faith performance instance instead for the greater good. The original objective fact is fair or not, God.. The original judgment problem? Whether the quality of the goods have any questions? B is the economic loss? The cognizance of facts and evidence is correct? All these questions because the second reconciliation"STOP". To enforce a judgment for people to see the equity of the law, in contrast to this case, think strictly fulfill the second settlement agreement is consistent with the rules of good faith the king principle.

Civil cases of second instance court during the parties reached a settlement agreement and the withdrawal of appeal case first instance verdict is in force, people tend to agree with the second view, during the trial of second instance of the parties as an out of court settlement and withdrawal of appeal should not lead directly to a judgment have legal effect, one party does not perform the mediation agreement, the other a party may be based on the reconciliation agreement be prosecuted, this is a new protocol, does not violate the principle of non bis in idem, unless the parties expressly agreed in the agreement, not to perform the mediation agreement accepted by a trial results -- in the legislation should be clear.

                                                                          Text / Chen Youwei lawyer

                                                                           2012.01.07

The accompanying text:

Guiding cases2Number (the first announcement of guiding cases.)

Wu Meisu Sichuan Province Meishan Xicheng Paper Co.

The company disputes

(discussion through the judicial committee of the Supreme People's court2011Years12Month20Day release)

Keywords civil execution reconciliation to withdraw the appeal does not fulfill the settlement agreement for the execution of a judgment

　Each point

In civil cases of second instance, the parties reached a settlement agreement, the people's court to withdraw the appeal, the settlement agreement without the approval of the people's court mediation, which belongs to the litigation agreement. Where a party does not perform the mediation agreement, the other party applies for enforcement of a judgment, the people's court shall support.

　　Related articles

"The second paragraph of article 207th of the PRC Civil Procedure Law"

　The basic facts of the case

The plaintiff Wu Mei Department of Meishan City, Sichuan Province Dongpo District Wu Mei of the old station owners, engaged in salvage operations. Since about2004Year, Wu Mei sold the scrap book to the Sichuan Meishan Xicheng Paper Company Limited (referred to as the West Paper Co).2009Years4Month14The two sides through the settlement, West Paper Co to issue IOUs stated: this Wu Mei owed to Wu Meifei for Yibaijiu seven million yuan ($1970000). The same year6Month11Day, both sides of the late payment settlement, West Paper Co to issue IOUs stated: this Wu Mei owed to Wu Mei waste for Wu Shi Siwanba thousand yuan (RMB548000). Because of repeated collection the payment without fruit, the people's court to prosecute Wu Mei Dongpo District of Meishan City, request the court to order the West Paper Co payment251.8Million yuan and interest. The defendant Xicheng Paper Co to owe Wu Mei money251.8Million yuan of no objection.

Court of the first instance judgment: defendant Xicheng Paper Co within ten days of the plaintiff Wu Mei loans in the decision on the date of entry into force251.8Million and default interest. After the verdict, West Paper Co to the Meishan City Intermediate People's Court of appeal. During the trial of the second instance, West Paper Co2009Years10Month15Day and Wu Mei signed a repayment agreement, West Paper Co agreed repayment plan, Wu Mei gave up the interest payment request. The same year10Month20Japan, West Paper Co to reach a voluntary settlement agreement with the other party by requests to withdraw his appeal. Meishan City Intermediate People's court ruled to approve the withdrawal from the west, the Paper Co has not completely fulfill the settlement agreement, the Wu Meixiang trial court for enforcement of a judgment. Meishan City Dongpo District People's court for enforcement of a judgment on Wu Mei to support. West Paper Co to Meishan City Intermediate People's court for enforcement supervision, that the original judgment not be enforced.

　The results

Meishan City Intermediate People's court2010Years7Month7Make (2010The governor) eyebrow No.4Reply: No. that according to Wu Mei's application, a trial court execution of effective legal documents is not inappropriate, should continue to perform.

　The reason of judgment

The court thinks: West Paper Co for withdrawal shall be the legal consequences that, once the court ruled to approve its withdrawal of appeal, a trial of Meishan City Dongpo District People's court decision is the effective judgment, with the effectiveness of enforcement. Although the settlement agreement reached between the two parties during the trial of second instance on a voluntary basis to make an agreement on the relevant rights and obligations, West Paper Co due to the signing of the agreement and give up the exercise of right of appeal, Wu Mei gave up the interest, but the settlement of the parties litigation agreements, without the approval of the people's court shall confirm mediation, has not compulsory execution. West Paper Co fails to perform the obligation of repayment by the settlement agreement, both sides agreed and violates the principle of honesty and credit, so the two sides reached a settlement agreement as to the execution of the original judgment, claim shall not be not support the request.