The "divorce" of the female party suffers from mental illness to jump off building, encounter various incidents was forced to drop out of school to kill at home son looked helpless mother think, how should I do? If the original sympathy too naive? Haidian court has made clear its inability to dissolve the marriage decision to start the retrial procedure, and4I don't know what will happen the day. "Civil Procedure Law" article202The positive solution is what? Urgent urgent

 

To provide legal aid to how to "divorce"

    -- "Civil Procedure Law" article202A really broken "divorce" the right way

 

[The basic facts of the case]

Ms. Zhang because her husband affair highly emotional and mental illness painstakingly found the "missing" years of husband Lee information, he at the Haidian detention center serving sentences for the crime of contract fraud held, sentence a year. She went to visit him when to give Li Mousongqian, Lee on the spot cry and shed bitter tears to tell the truth, a few years ago he to each other One's whereabouts is a mystery. grounds by Haidian court divorce. Which know Ms. Zhang next time with because no dad protection being bullied and forced to drop out of school the son to visit, Lee told a house of detention the divorce has refused to visit.

Ms. Zhang the lawyers reminded to Haidian court record room query, the court of Haidian in2010Years4Month7Make a judgment by default, ", grant Lee and Zhang divorce; two, the marriage of Li Beibei by Zhang raising, Lee since two0A0March monthly payment of child support fee of RMB eight hundred yuan, child until the age of eighteen; three, the common property: Hong Wah brand back head one hundred and thirty-three cm color TV one, Rowles sofa, Tiantan stone wood table set (with four chairs), a (table with six chairs), Jiajie brand double cylinder full automatic washing machine, Haier range hoods, stoves and disinfection cabinets, each have a Haier brand wall air-conditioning four Taiwan, Mitsubishi brand air-conditioning Guiji a double bed, Rowles card two, Tiantan brand wardrobe four, above all to Zhang all property."

Look at the copy of the trial materials, Ms. Zhang be hardly worthy of belief: how could I One's whereabouts is a mystery.? I was looking for him for so many years, I looked for his parents, to find his brother, they are not willing to tell me Lee information. How can the court did not find me, not for my parents just issued a notice in the newspaper, how can I know Li Mou to sue me? How can the court what are not investigated completely listen to Lee's one-sided statement, what did he say how sentences? What should I do? What about my son?

Ms. Zhang pointed out that the judgment has the following problems:

1Lee knew Ms. Zhang has a mental illness, but told the court the parties without mental illness (Huilongguan Hospital of medical materials include Li Mousong Ms. Zhang went to the hospital, but Ms. Zhang sick because of Li Mouyou's affair of the blow through);

2Ms. Zhang parents and sister home has remained the same, both in Beijing, Lee is that can't find them;

3The legitimate son named Li Mouyu, the court in the absence of household registration information or birth certificate of evidence, the verdict that call Li babe;

4Li Mouyu whereabouts only Lee one-sided statement, is in accord with the objective reality but there should be evidence;

5Lee offered Ms. Zhang address where the house1Years ago no longer there, housing for the Lee not loans by banks to withdraw, Lee knew Ms. Zhang has moved back in with my parents, the court only to the address to send a judicial post post, how could she get? If the judge had to ask the property you know Ms. Zhang contact, and Lee to the court to provide the marriage registration information also includes her home address, Ms. Zhang is parents' home;

6In the2009Years9Month29On the trial judge to Lee for a week before (interrogation record9Month23Day), Ms. Zhang due to find Lee Lee home requirements by the beat, Ms. Zhang still alarm, also corroborated Lee not only to find Ms. zhang;

7The court in the notice served on the duplicate copy of the indictment, the summons of ane judicial post post, did not come to check;

8The confirmation of the common property of the couple's status (only the furniture and appliances) only by Lee one-sided statement, no other evidence. Ms. Zhang questioned, we were in the Zhongguancun furniture shop, tens of millions of assets which go to?

[Ms. Zhang a situation]

Ms. Zhang still have major depression, bipolar disorder, son has very good learning from his social youth beaten hospital treatment after a period of time due to unaccompanied at school temporarily suspended at home, one family, Ms. Zhang father2000To block the money retired gold day, the whole family has run into extreme difficulties.

[Why did I agree to apply for retrial of the free agent: I asked the son to verify her sister, her mother, Ms. Zhang, to Ms. Zhang and his son situation based on sympathy, based on the rule of naive]

   2013Years4Month17Afternoon, I accompanied Ms. Zhang mother to Haidian court for retrial, because as a lawyer, I didn't understand "Civil Procedure Law" article202The provisions effective judgment on dissolution of marriage, the parties shall apply for a retrial still accept agent and suffered "look down", but I still insist on delivery. After the judge sent me to the "Civil Procedure Law" article202Different views of the NPC Law Committee, that based on the legislation background on the interpretation of article, the intentional structure of the "divorce", should not limit its appeal to the relationship.

   After the trial supervision tribunal, the judge informed me5Month13Afternoon to ask. I think there will be a ray of hope, but hope to soon dashed. The judge very patiently for me to read the "Civil Procedure Law" and Ms. Zhang202Regulation and legislation background, clearly unable to dissolve the marriage decision retrial, if the decision object and there is evidence only child support and property division of application for retrial, as the judge said she is helpless, if not change the request, she had to end the conversation. Ms. Zhang mood was out of control, to ease the deadlock, I put forward to judge and give us a week to consider.

Time passed, Ms. Zhang constantly call, send text messages to ask me what strategy. And I doubt not, legal protection of the "divorce"? She told me she was going to jump off building, her son is going to put her father killed. I in addition to comfort, but now I don't know what to do. I searched all possible sentence database, search through the network information has not found a case of dissolution of marriage decision revoked example.(a case)

In this case, Ms. Zhang, if re not married, her rights except possibly prosecute Lee take the difficulties of life beyond help, basic not any possible. But the marriage relationship has lifted, Lee on what legal basis to assume the obligation to help couples each other based on the life? They had a furniture store in the Lee sued for divorce before the property has been cancelled, transfer, no "marriage" shell, she can to which institution for investigation of property? And the survey each other a few years ago the property?

Now consider period and from a week4Day, I really worry about4Situation of Ms. Zhang a day after! I was worried, Lee has to4Month24Day release, if he is to seize the time to "wise" and other registration of marriage, the case will be no room for rotation. We can expect him after labor after the transformation of conscience active family responsibilities?

   

★The following is my "Civil Procedure Law" article202A view

 

      

As everyone knows, in the early1991Years of "Civil Procedure Law" formally promulgated and implemented, the original181The specified"The parties to a legally effective judgment on dissolution of marriage, shall apply for a retrial." Since the "Civil Procedure Law" has been amended several times, this provision has not changed, the latest revision of the2013Years1Month1Began implementation of the "Civil Procedure Law" article202A more clear as the "parties to a legally effective judgment, the dissolution of the marriage mediation book, shall apply for a retrial".

For the spirit of the legislation of the civil law, the NPC Law Committee room, "Civil Procedure Law" provisions of resolution decisions (hereinafter referred to as the "interpretation" "") said: "the people's court to dissolve a marriage judgment or mediation book, once the legal effect, male or female any party may remarry with others. If the man and the woman with the feelings of others to remarry, unruptured grounds for divorce, retrial has lost any sense, because the man and others marriage impossible to remove, so the law does not allow for a legally effective judgment for dissolution of marriage, apply for retrial."

1"Divorce" should not assume wrongly consequences

    The above explanation, if both parties to participate in the trial, and on both sides of the litigation rights are fully protected, lift the judgment or mediation of marriage after the entry into force, the parties shall apply for a retrial is understandable. The problem is, when one party does not know the divorce suit, "One's whereabouts is a mystery." by default judgment of divorce and the service by public notice, such provisions shall apply for a retrial is reasonable? Even as in this case, the plaintiff that Ms. Zhang has a mental illness, and sent to hospital for treatment, but to evade obligation exclusive joint property of husband and wife, and malicious to Ms. Zhang "One's whereabouts is a mystery." Sue divorce by the court for a divorce, or the verdict deprived of Ms. Zhang "divorce" apply for retrial right? Moreover, the court did not exercise reasonable due diligence service of legal documents and facts of responsibility.

The lawyer thinks, this explanation, it is may be wrong decision responsibility is undertaken by the parties, but the reality is often a "divorce" a bear; and the court during the trial may be illegal, and even illegal problems lead to erroneous but don't activate the error correction mechanism, to make up for the fault, safeguard judicial authority. This seems to be the "draw further apart of justice for the people" principle.

Moreover, for the dissolution of a marriage between effective judgment, mediation agreement shall apply for a retrial regulations, more is to prevent a party with the entry into force of a divorce judgment, mediation and others after marriage, a marriage can not be forcibly removed embarrassing situation. And don't say whether sufficient reason (such as a party involved bigamy, after a marriage must be forced to be invalid without considering the second marriage when the thing person will or not), even so, for both parties and others do not marry, divorce judgment, mediation effect, if the parties apply for retrial if established the original judgment shall be revoked, and there will be no "innocents" may. Why not to make it rigidly uniform to apply for a retrial? The court can be considered completely distinction.

2The court shall not evade the crucial point correction

The establishment of the procedure for trial supervision, in addition to as much as possible to protect the rights and interests of the parties, also is to correct the court illegal behavior, even for illegal responsible persons shall be accountable.

The trial of the divorce cases, the first review is necessary after the dissolution of the marriage, is the problem of child rearing and the division of matrimonial property. The establishment of this system, itself is heavy family personal relationships than property relations performance, and this is the essence of marriage. However, "Civil Procedure Law" article202Article, the dissolution of the marriage valid judgment, mediation agreement shall apply for a retrial, regardless of the court proceedings unfair practices, in fact, is ignoring the relationship between husband and wife, the relationship between parents and children, and the judgment rules are clearly contradict.

Especially for the default judgment of divorce, the presence of malicious to conceal the facts, make up the "One's whereabouts is a mystery." situation, originally this case justice may be illegal (such as: the plaintiff without sufficient evidence that the couples have been broken; the plaintiff in addition to one-sided statement without evidence that the defendant One's whereabouts is a mystery. court not sufficient delivery obligations; divorce cases; in addition to the important of one-sided statement without evidence of case, sentence), if not allowed the defendant to apply for retrial, is clearly contrary to justice Chang Ming, justice principle. The provisions of the law, to a certain extent, in fact is the legal protection to the court's judicial mistakes. I don't think that this is the legislators intent.

3Don't cancel the marriage decision alone child support and property of retrial, and can not maintain the "divorce" rights and interests

"Explain" said: "divorce judgment or mediation book takes legal effect, male or female neither party and others remarried, if the two sides feelings do not completely broken, the law also provided both sides with relief channel. Provisions of article thirty-fifth, marriage after divorce, both parties desire to resume their husband and wife relationship, can go to the marriage registration organ for the registration procedures. Therefore, a party to the feelings of unruptured grounds, apply for retrial on divorce judgment makes no sense". This explanation, it is a most probably it did not actually happen view of marriage, it is logical. Since "if the feelings of both sides has not been completely broken, and the court" in the party does not agree to divorce case judgement both divorced, this decision is a mistake. The law should give the parties of the relief is -- revocation decision, safeguard judicial justice -- and should not let the parties were forced to accept a wrong judgment. Even if the two sides have in the future may remarry, but once a wrong judgment ceased to exist?

The parties to the marriage decision shall apply for a retrial, not only is that still has the feeling of husband and wife is so simple, more parties especially "divorce" apply for retrial is need each other to assume responsibility for marriage, family responsibility. But the "marriage" is not complex, the responsibility is in?

Not to dissolve the marriage decision to apply for a retrial, means a divorce judgment has certain effect. Then, the marriage ended in divorce verdict on the same day, the relationship of rights and obligations between husband and wife also check the effect on divorce, "raising a controversial divorce" about children, especially the division of matrimonial property dispute time node will also ended in divorce verdict on that day. Just imagine, some years ago the child is an objective existence, but several years ago, the property is what? Especially a party intentionally play missing and calling each other "One's whereabouts is a mystery.", in addition to property may stand in the not good move, other assets are likely to be transferred. "Divorce" between how the joint property of husband and wife, "divorce" can afford the burden of that? If not proof, the consequences of this let the "divorce" alone?

Only when the decision to withdraw the divorce, marriage again, even if one of the parties will still want to divorce, to have "divorce", she (he) will have at least "marriage" basis can be more easily burden of the joint property of husband and wife, the property survey application also can have "marriage" protection for more investigation may. Moreover, there is no evidence to infer the revocation of divorce after judgment, the parties must end in divorce, and there is no need to waste the judicial resources and then sentenced to a divorce. Of course, even if the future is still a party firmly for a divorce, but divorce and then the divorce covered the procedural justice is different.

4A divorce case shall apply for a retrial conditions should be more detailed operation

As the "explanation" said: "the parties shall apply for a retrial cases, civil procedure law only stipulates the case. Other countries legislation while more regulation, but also is not consistent. And in some countries, decided to get a divorce case can also be a retrial. Visible, in which case shall apply for a retrial is not a simple theoretical problems, mainly should be based on the acceptance of specific judicial practice and social, prudent decision-making."

It is based on the "see the legislation should be based on the acceptance of specific judicial practice and social, prudent decision-making", on the dissolution of a marriage between effective judgment, mediation agreement shall apply for a retrial of the regulations, cannot simple stipulations, but should be different based on the introduction of more refined, operating rules, at least have to distinguish a divorce case defendant in the trial or not. The court fails to fulfill the service duty caused the defendant is absent, "divorce" with the objection application for retrial on marriage decision, shall revoke the retrial.

The court based on the fault, not to "divorce" for a "husband" or "wife", say sorry, wrong retrial should. After all, the civil misjudge no state compensation.

 

Note:

☆ NPC Law Committee of civil law department cited the explanation: from civil law department of the National People's Congress Standing Committee, eds., "2012Modification of the civil procedure law determines the interpretation "provisions, Chinese Legal Publishing House2012Year edition, No.272Page.