For non civil and administrative cases refer to the new "Civil Procedure Law" provisions limiting citizens agent no basis in law

At present, labor dispute arbitration departments to do the trial of the case, labor arbitration department of human resources and social security for ascertainment of a work-related injury cases, commercial arbitration mechanism for commercial arbitration cases, administrative organs for administrative reconsideration cases, the people's court for such a phenomenon in criminal cases: the party entrusts citizen as an agent according to the newly revised "the civil procedure law" article fifty-eighth (three) to limit the provisions of item, to request the parties to submit unit, community or village committee's recommendation. The author thinks, this kind of practice in violation of the law, for the following reasons:

One, the newly revised "Civil Procedure Law" does not provide the labor dispute arbitration department for labor arbitration cases, human resources and social security department for work injury cases, commercial arbitration mechanism for commercial arbitration cases, administrative organs for administrative reconsideration cases, the people's court trial of criminal cases of dealing with civil agency shall refer to the "civil procedure law".

"Civil Procedure Law" the third stipulation: "the people's court between citizens, legal persons, other organizations and between the three of them because the property relationships and personal relationships between civil lawsuit, apply the provisions of this law." Rule fourth: "Whoever engages in civil litigation in the people's Republic of China, must abide by this law."--The two rule is clear: only in civil proceedings to apply "Civil Procedure Law", not in civil proceedings, unless otherwise specially stipulated by law, otherwise it should not apply to "civil procedure law".

Two, labor arbitration law, ascertainment of a work-related injury, commercial arbitration law, law of administrative reconsideration law, criminal procedure law does not stipulate that citizens agent should refer to "civil procedure law". The law only to the people's court trial of administrative cases can refer to "civil procedure law".

"Labor dispute mediation and Arbitration Law"Article twenty-fourth states: "the parties may entrust an agent to participate in arbitration activities. To appoint an agent to participate in arbitration activities, shall be submitted to the labor dispute arbitration commission signed or sealed by the power of attorney, attorney shall specify the matters entrusted and permissions."-- the regulation only required to submit a power of attorney, did not require the parties entrusted agent shall be submitted to the unit where the citizens, community or village committee's recommendation.

"Rules on arbitration of labor disputes" Twentieth stipulates that: "the parties due to objective reasons not to collect evidence, the Arbitration Commission may, upon application of the party concerned, shall be collected according to the relevant provisions of the" PRC Civil Procedure Law "; the Arbitration Committee deems it necessary, may also decide to refer to" the people's Republic of China procedural law "the relevant provisions of the collection."Twenty-third the provisions of the third paragraph: "calculation during the arbitration and the arbitration documents mode of delivery, the relevant provisions of the Arbitration Commission may refer to the calculation of the period of civil litigation and mode of service execution."--The two rule is only applicable to calculate the labor arbitration committee exercise the power of investigation and evidence collection, period and mode of delivery, does not apply to the civil agent. Besides"Rules on arbitration of labor disputes" isHuman resources and social securityDepartment regulations,Human resources and social securityDepartmentDo not enjoy the power of judicial interpretation, the effectiveness level is relatively low, there is ultra vires made law, ultra vires explain "labor dispute mediation and Arbitration Law" too, the judiciary and legal scholars have criticized this.

"Regulations" provisions of article thirtieth of personnel dispute processing: "the parties, legal representative may entrust one or two lawyers or other agent to carry out arbitration activities. Appoint a lawyer or other agent to carry out arbitration activities, shall be submitted to the personnel dispute arbitration commission entrusted proxy signature or seal of the person. The power of attorney shall specify the matters entrusted and permissions."--The rule is only required to submit a power of attorney, did not require the parties entrusted agent shall be submitted to the unit where the citizens, community or village committee's recommendation.

The newly revised "industrial injury insurance regulations" and "approach" not provided for ascertainment of a work-related injury of civil agency. But for work-related injuries that are private rights of citizens, by the legal principle and the "general principles of civil law" sixty-third article, by inductrial injury worker has the right to entrust others agent. "General principles of civil law" sixty-third stipulates: "citizens, legal persons may perform civil juristic acts through agents."

"The twenty-second way" provisions of the second paragraph: "the ascertainment of the work-related injury ascertainment of a work-related injury" decision "and" not work-related decision "to refer to relevant provisions of the civil service."--This provision applies only to the Department of human resources and social security service of legal documents of the ascertainment of a work-related injury, do not apply to the civil agent. Besides"Approach" is the ascertainment of a work-related injuryHuman resources and social securityDepartment regulations,Human resources and social securityDepartmentDo not enjoy the power of judicial interpretation, the effectiveness level is relatively low, there is ultra vires made law, ultra vires interpretation of "Regulations" industrial injury insurance too, the judiciary and legal scholars have criticized this.

"Arbitration Law"Article twenty-ninth states: "the parties, legal agent may appoint a lawyer or other agent to carry out arbitration activities. Appoint a lawyer or other agent to carry out arbitration activities, authorization shall be submitted to the arbitration commission."-- the regulation only required to submit a power of attorney, did not require the parties entrusted agent shall be submitted to the unit where the citizens, community or village committee's recommendation.

"Administrative review law" tenth paragraph fifth:"The applicant, the third party may entrust an agent to participate in the administrative reconsideration."--This provision does not require the parties entrusted agent shall be submitted to the unit where the citizens, community or village committee's recommendation.

"Administrative complexDiscussion of Law Implementing Regulations "provisions of article tenth:"The applicant, the third party may entrust1To2Agents to participate in administrative reconsideration. The applicant, third agent, authorization shall be submitted to the administrative reconsideration department. The power of attorney shall specify the matters entrusted, power and time limit. Citizens under special circumstances can not be written authorization, can be orally. Orally, the administrative reconsideration department shall verify and record the volume. The applicant, third people to lift or change the entrusted, shall submit a written report to the administrative reconsideration department."--The rule is only required to submit a power of attorney, did not require the parties entrusted agent shall be submitted to the unit where the citizens, community or village committee's recommendation.

"Administrative procedure law"Article twenty-ninth states: "the parties, legal representative, may appoint one or two persons litigation. Recommend a lawyer, social group, filed a lawsuit against a near relative of the citizen or units of the people, and the other citizens of the people's court permission, may be entrusted as an agent ad litem."--This article shows that, the client citizens agent, the agent may be close relatives, can be recommended to the relevant unit, also can be other citizens of the people's court permission.

"The Supreme People's Court on the implementation of<Administrative procedure law of the people's Republic of China>Interpretation of several issues"The twenty-fifth stipulation:" the parties to entrust agents ad litem, shall submit a signed or sealed by the principal's power of attorney to the people's court. The power of attorney shall specify the matters entrusted and the specific permissions. Citizens under special circumstances can not be written authorization, can also be oral entrust. Orally, the people's court shall verify and record the volume; the organ or other obligation to assist the authorities refused to court to verify the restriction of personal freedom of citizens, as authorized. Parties to revoke or modify the entrustment, it shall make a written report to the people's court, the people's court to inform the other party."Article ninety-seventhRegulations.The people's courts shall, except in accordance with the administrative procedure law and the relevant provisions of this interpretation, can refer to civil litigation."-- althoughThe provisions of article twenty-fifth show, party entrusts citizens agent, the agent may be close relatives, can be recommended to the relevant unit, also can be other citizens permitted by the people's court, the general should submit a power of attorney, can also be oral entrust. But the provisions of article ninety-seventh show, the people's Court concerning the trial of administrative cases, the relevant provisions of the civil procedure law can refer to, means that the people's court litigation can refer to the rules of the new "Civil Procedure Law" in article fifty-eighth, request the parties entrusted agent shall be submitted to the unit where the citizens, community or village committee's recommendation. The Supreme People's court has judicial interpretation in accordance with the law.

"Criminal Procedure Law" the thirty-second stipulation: "the suspect, the defendant in addition to exercising the right to defend himself, also may entrust one or two persons as his defenders. The following persons may be appointed as the defender: (a) law; (two) recommend people groups or criminal suspects, defendants unit; (three) the suspect, the defendant's guardian, relatives and friends. In accordance with the law are under criminal punishment or deprivation, restriction of personal freedom of the people, shall not serve as defenders."This article shows --, criminal suspects and defendants, relatives and friends also can serve as defenders. Relatives and friends of the range is very wide, not limited to close relatives, relatives, served as counsel without the defendant unit recommendation, only the people's court verification.

"The Supreme People's Court on the application<The criminal procedure law of the people's Republic of China>Interpretation of "the thirty-seventh stipulation:" lawyers, recommend people groups, the defendant unit, or the defendant's guardians, relatives and friends to be appointed as the defender, the people's court shall verify the identity and authorization." Rule thirty-eighth: "a defendant may entrust one or two persons as his defenders."Article fifty-fifth states: "the parties to entrust agents ad litem, the relevant provisions on the application of criminal procedure law and the thirty-second to explain the."--This article shows that, criminal suspects and defendants, relatives and friends also can serve as defenders. Relatives and friends of the range is very wide, not limited to close relatives, relatives, served as counsel without the defendant unit recommendation, only the people's court verification.

"The Supreme People's Court on the implementation of 'interpretation of the people's Republic of China Criminal Procedure Law' issues"Article 100thRegulations."The people's court for trial the incidental civil lawsuit, in addition to the application of criminal law, criminal procedure law, should also apply the general principles of the civil law, civil procedure law."-- the interpretation of January 1, 2013 abolished, no longer apply.

"The specific provisions of the Supreme People's Court on the trial of criminal procedureArticleRule thirty-one: "recommend a lawyer, people's organization or the defendant units of the citizens, and the defendant's close relatives, guardians are appointed or designated as a defender, the people's court shall verify the defenders were proof of identity and the defense attorney. Other citizens as a defender, the people's court in the review, decide whether to permit." Rule thirty-second: "a defendant to entrust defenders shall not exceed two. The joint crime, a lawyer shall not be more than two co defendants. Thirty-fifth designated by the people's court shall defender, is a lawyer; the appointed lawyer is difficult, you can specify the organs, organizations, enterprises, and institutions recommended staff."-- the gaugeThe January 18, 2013 wasteStop, no longer apply.

Three, handle a case, labor and personnel arbitration work injury cases, commercial arbitration, administrative reconsideration cases and criminal cases refer to "Civil Procedure Law" article fifty-eighth (three) the provisions of item on the parties entrusted as an agent to limit citizens belonging to the applicable law errors, also violated "the exercise of public authority without authorization not for", "private rights without law prohibition to the principle of".

The authority for the non civil cases, in the exercise of public power. The law does not clearly defined provisions dealing with civil agency can refer to "Civil Procedure Law" when, do not refer to "Civil Procedure Law"Article fifty-eighth (three) itemsRegulations. Party to entrust other citizens agent, in the exercise of rights. As long as the law does not prohibit sexual regulation, have the right in accordance with the provisions of relevant laws and not the "Civil Procedure Law"Article fifty-eighth (three) itemsThe provisions of the authorized agent.

"According to the law, the law, strict law enforcement, law" is the basic principle of socialist legal system. "The law, be strict in enforcing the law," requires the units and their staff strictly according to law, the law does not specify the circumstances, the boundaries between the legal department, not to be confused with the arbitrary, but not the units of the Department since the establishment of "rules", "build" indigenous law soil policy, otherwise it should be "illegal".

Four, China's legal system is a civil law, the statute law (only applicable case law to apply the Anglo American law system countries). In some areas, individual units for non civil cases, restriction of citizens agent in laws and does not specify the circumstances of practice, should be illegal and invalid, should not become the other area, other units "imitate", refer to the applicable basis.

(the writer Du Yamin China law society member, Shaanxi Province law society Police Law Research Association)

The following URL to view all of Du Yamin's splendid legal Bo Wen↓

  Http://blog.sina.com.cn/u/2338452437