Objection to the jurisdiction of the case study on some problems

Objection to the jurisdiction of the case refers to the litigation parties according to the "PRC Civil Procedure Law" provisions of article thirty-eighth, the people's court cases in a period of jurisdiction objection, the people's court for review and make order to handle cases. It is because the plaintiff may use their own advantages to avoid the legal litigation initiator, to choose the most beneficial to their own court, but in the investigation stage, the judge solely on the basis of the prosecution to provide material for the procedural review, judge not the jurisdiction of the court does not have jurisdiction to their full cases excluded, after accepting the case found that the jurisdictional error is can hardly be avoided, therefore, the law the defendant within a reasonable period of time has the right to put forward ideas and suggestions against the jurisdiction. Such cases in legal consciousness is stronger and stronger today more and more, the system reflected the question is more and more obvious.
One, the current main problems right jurisdiction objection system and harmfulness
At present, the jurisdiction objection system has obvious characteristics of administrative authority, the conditions, procedures, evidence and testimony, certification and lack of detailed provisions, resulting in the abuse of objection to jurisdiction, litigation rights in judicial practice too much delay, processing procedures are not standardized and the loss of the right to self-determination problems, one hand prevent the right litigation activities, on the other hand also led to the part of the dissatisfaction. Mainly in the:
(a) objection conditions law does not make provisions , leads to the abuse of jurisdiction objection rights.
Civil Procedure Law of thirty-eighth only the provisions of the parties during the submission of defence put forward the objection to jurisdiction, "means to pay the cost of litigation" provisions of jurisdiction objection does not set up each to pay 50 yuan to 100 yuan, and as for the objection raised conditions and relevant evidence and materials aspects are not required, because the jurisdiction the objection of the threshold is too low, and the cost is very little, leading to the judicial practice of jurisdiction objection to the application state of disorder. Some parties are easy to use the jurisdiction objection power delay the litigation process, or to the jurisdiction objection to force the plaintiff to accept the mediation proposal detrimental. Even some jurisdiction very clear case, the parties in order to achieve the purpose of protracted lawsuit, also put forward the objection to jurisdiction, the jurisdiction objection process long, hysteresis of his right to protect, even use during this transfer, sell their property for execution.
(two) objection handling procedures are not standardized, leading to the people's court review procedures can not go, the procedures are not transparent.
According to the common practice of the people's court, the defendant for the jurisdiction objection is brought directly to the case handled by the judge, trial organization, the collegial panel or the single judge in conjunction with the review process, the second is to review the court responsible for processing. Because the jurisdiction objection review procedure is lack of legal norms, some courts have adopted a written examination, some courts use the hearing review, some court judges investigation, some courts have the burden of proof was adjudged to the parties, even the same court also have different practices, through the review process although eventually handled the case, but because not enough unified standard, let the judges and the parties are not know what course to take. In practice, the court ruled in the party refused to challenge the jurisdiction, but in accordance with the terms of reference, to transfer the case to a court of competent jurisdiction, resulting in some parties dissatisfied, and his petition, even refused to initiate litigation jurisdiction of court, resulting in some jurisdiction transfer case is not a long-term solution.
(three) objection handling way too in writing, the proof of evidence, cross examination and certification are not unified, resulting in some case results from reality, lead to strong dissatisfaction of the parties.
According to the provisions of the thirty-eighth civil procedure law, court should review, but for review form not clearly. In practice, often in the objection to jurisdiction for delivery to the plaintiff, the evidence material solely on the basis of the parties provide the written examination, rather than using the trial procedures for trial, the judge will not even a handful of jurisdiction objection notice on the plaintiff, in accordance with the terms of reference were reviewed, the final results and the objective reality. In the process of objection to the jurisdiction of the case, is often the only form of review, the relevant evidential materials not by evidence, cross examination and authentication. Objection handling written and administration, on one hand against the basic principles of evidence in the trial. The judge should give the parties full attack and both sides of the debate in the trial opportunities, so that both the original defendants for determining jurisdiction evidence through examination process necessary, then discard the false and retain the true, make a ruling. Because of this, the civil procedure law stipulates clearly that the sixty-sixth, the evidence shall be presented in court and cross examined by the parties concerned. On the other hand is malicious evasion provides convenient ways of jurisdiction. The parties may not confrontation and cross examination debate with the characteristics of judicial review, by altering or adding some under the jurisdiction of the content, or by other illegal means to falsify evidence, jurisdiction for the relevant court.
(four) the people's court jurisdiction over authority, neglect of the parties in the objection to the jurisdiction of cases in the litigation rights.
In ruling objection, the court on its own to a court of competent jurisdiction. When the people's court in accordance with the provisions of the transfer of cases that do not belong to the jurisdiction, the case to the court for the designation of jurisdiction, the court appointed by which the court, the case eventually specified by the court. In the process of determining a court of competent jurisdiction of the court, the relevant operating procedures do not consider the choice of court's rights, the plaintiff cannot actively participate in dispute settlement procedures. This resulted in the most of the time, the jurisdiction of the court and the final choice or lack of correlation with the case, which has resulted in many cases of litigation costs, ignoring the parties in the case of objection to the jurisdiction of the right.
Two, objection to the jurisdiction of trial procedure design
(a) the main objection to the jurisdiction of the proposed specification
The subject of the jurisdiction objection, there are the following disputes in the judicial practice: (1) the third party without independent claim if there is objection to jurisdiction right? The Supreme People's Court on the application of the "PRC Civil Procedure Law" opinions on several problems of sixty-sixth has been clearly stipulates: "the third people have no jurisdiction over the case in the first instance the right to raise an objection." Therefore, the third party without independent claim shall not have the right to challenge the jurisdiction. (2) the third party with independent claims have jurisdiction objection power? I think, no matter be notice to participate in the proceedings or the initiative to participate in the litigation, the third party with independent claims have no objection to the jurisdiction right. Court of the third party with independent claim lawsuit requests the merger trial is only in the legal system design in order to suit the convenience and improve the efficiency of trial. If the jurisdiction of the third party with independent claim does not recognize the court, can the self that has jurisdiction over the court, at the start of proceedings may suspend, resume trial of the third party with independent claim cases after completion, the third party with independent claims not put jurisdiction the right to dissent. (3) if necessary common lawsuit later to participate in the proceedings of the original defendants have the right to put forward objection to jurisdiction? In necessary joint action, take the initiative to apply for the defendant in the litigation situation should be relatively rare, and for the court's authority additional defendants have jurisdiction objection power should be no doubt. In necessary joint action, then take the initiative to participate in the litigation the plaintiff should be deemed to have accepted the court's jurisdiction, the problem; the court was added to plaintiffs that the cases before the court has no jurisdiction is controversial, some scholars think that the part of the necessary joint action in refusing to accept the jurisdiction of the court, it shall be regarded as the plaintiff did not reach consensus prosecution, prosecution condition does not have, should reject the prosecution. But in practice such disputes often co plaintiffs can't agree on conditions, such as husband and wife for divorce filed analysis of action, the people's court proceedings if refused, then the dispute will not long-term solution. Therefore, I think, at this time should not be given jurisdiction objection, but should pay full attention to their views, by judges whether it has jurisdiction over the hospital review. (4) non necessary common lawsuit later to participate in the litigation the original defendants have jurisdiction objection power? Ibid., in the non necessary common lawsuit, the court in accordance with the terms of the additional CO defendants also have jurisdiction objection power. Both the initiative application or co plaintiffs be added if there is no objection to the jurisdiction of the court of the right, as one of the litigation in other cases will not take effect, any person can not participate in the litigation, it has no right to challenge the jurisdiction.
(two) the acceptance procedure specification of jurisdiction objection cases
The objection to the jurisdiction of the case, should change the party now free to give way, and shall be made by the people's court review the form, namely the jurisdiction rules is relatively simple, only needs to review the form can be judged objection reason is established, and the apparent lack of evidence to support the application can not be accepted; and for those that have some reasons or evidence to support, or through the substantive review of the jurisdiction, is to be accepted, coding and independent jurisdiction objection case number, and hand over the case to the entity with the same trial organizations, according to the statutory review program review. Because in some cases the right of jurisdiction to the entity legal cases and decide, so I think, the jurisdiction of the trial or for dealing with entities of the same trial organization is appropriate.
Thus, the preliminary examination on the court, accept can regulate the jurisdiction objection, reduce the objection to the jurisdiction of cases, effectively prevent the abuse of jurisdiction objection rights, also can effectively supervise the objection to the jurisdiction of the trial period, to prevent the excessive delay action. In this way, but also conducive to the investigation and Research on the jurisdiction objection cases, to explore the rules of trial, and lay the foundation for the next step of the civil procedure law amendment.
(three) specification of jurisdiction objection procedure
Suggest that the Supreme People's court first through the review process in the form of judicial interpretation to the jurisdiction objection, including the jurisdiction objection to the book service, jurisdiction objection put forward evidence of the time and the trial, the trial period of time. Review the jurisdiction objection although a part only of trial procedure, but the cost of litigation, judicial satisfaction and substantive rights has great influence, therefore, the review system should be as same as trial procedure reflects the open, fair, impartial, and have higher requirements for efficiency. I think, the jurisdiction objection review procedures should adopt the adversarial trial mode, by the parties for their claims of testimony,, and of a debate, the parties to the present because of objective reasons can not be evidence, may request the people's court to adopt. To authenticate the prerequisite in fully listen to the views of the ruling on the basis of the provisions, relevant evidence and the law, and the Party of jurisdictional disputes testimony, opinions as well as certification analysis process and the laws of the people's court for written objection to the jurisdiction of the ruling, to the parties concerned by the case whether the court has jurisdiction. The right to the facts and the law. And in such cases special requirements on the efficiency, objection to the jurisdiction of the trial of the second instance cases, the term may be more stringent, the court of first instance to the trial court to file can only transfer the objection to the jurisdiction of the files.
Three, several other issues about the jurisdiction objection cases
(a) the time limit of objection to the jurisdiction of the case against the
Some people think that, the court of first instance must be in receipt of the jurisdiction objection after application of make a decision within 15 days, and when the court ultimately ruled may the time limit for adducing evidence protester has not yet expired, it is possible to forcibly deprived of the right of the parties, and therefore the time limit for adducing evidence court of objection review should be the expiry of the year began, in order to ensure the right of the parties. And I think, the jurisdiction objection does not conflict with the time limit, the jurisdiction objection is the people's court for the parties to the jurisdiction objection to review the legality of treatment, should stop the case entity processing during the period under review, no decision, and for the procedures, can be normal, such as the preservation of property, the specified the time limit for adducing evidence, identification, the people's court in the review process during the objection to jurisdiction, the parties shall still submit relevant evidence in accordance with the specified term of court. In the case of jurisdiction to determine, whether or not the jurisdiction of the people's court shall change, can no longer specified time limit for adducing evidence, to trial in accordance with the law.
(two) treatment of objection to the jurisdiction of the trial the plaintiff applies for withdrawal of the case
In the present jurisdiction objection, the plaintiff withdrawing, which belongs to the entity principle courts on the withdrawal of the suit, should be left aside, the objection to the jurisdiction of a review and make a treatment, and then by a court of competent jurisdiction to review the withdrawal application conforms to the legal provisions. But in judicial practice, in order to improve judicial efficiency, also can consider to allow the defendant to withdraw the jurisdiction objection, then allow the plaintiff to prosecute.
(three) to the jurisdiction dispute cases applicable reconciliation and mediation if the solution
In March 7, 2007, the Supreme People's Court promulgated the "on the further play the lawsuit mediation in a number of opinions" constructs the socialism harmonious society the positive role of the courts, to further raise awareness, increase the mediation efforts, effectively resolve contradictions and disputes, maximize factors conducive to harmony, reduce disharmonious factors. The Supreme People's court jurisdiction dispute cases have also been through the settlement between parties to withdraw the case precedent. In judicial practice, we can use this as an example, as much as possible to grasp the way the real psychological, can not follow the prescribed order, to hear and decide, but tries to promote reconciliation and mediation. A new way which may be a dispute resolution.
(four) the frequency and effectiveness of jurisdiction objection
On the same case, the parties can challenge the jurisdiction question several times, many disputes in practice. Specific in several ways: one is the court of jurisdiction objection ruled, was later added the defendant raises objection to jurisdiction. In this regard, I think the court ruled that the book once made, should be the case for all parties after binding, the additional party cannot again raised the objection to jurisdiction; two is the power of courts to change the jurisdiction or according to the party objects to the jurisdiction of the ruling to the case, the parties accept the jurisdiction, and put forward the objection to jurisdiction. I think, the court's jurisdiction objection review procedures should be performed only once, if a party objects to the jurisdiction of the jurisdiction again after the change occurs, the people's court shall not start the program again, if the people's court that he does not have the jurisdiction, it shall timely report to the superior people's court for the designation of jurisdiction and the common, should not make a ruling.
(five) apply for retrial jurisdiction objection decision right
In the Civil Procedure Law revised in October 2007 before, this problem is not in dispute. But in the revised version, some people think that the civil procedure law, according to the 179th paragraph (seven) of the Convention, in violation of the law of jurisdiction in error, should enter retrial. The jurisdictional error should be a retrial, the jurisdiction objection decision may apply for retrial. I think, this kind of understanding is too one-sided, this provision is to prevent the court randomly for jurisdiction and illegal make substantial judgment situation, should be to the entity ref retrial. Discovery of jurisdictional error, it shall revoke the entity ref, transferred to the jurisdiction of the court. If the application for retrial on the jurisdiction objection ruled review or retrial, will greatly delay the proceedings, and even make the jurisdiction over cases in long-term in a state of uncertainty, the entity trial remain stagnant, delay of cases. Moreover, the Supreme People's court "on the application of 'problems of Civil Procedure Law of the PRC' opinions" 208th rules "on not accepting, rejecting prosecution ruling, the parties may apply for retrial". I think, the current laws and regulations and judicial interpretations is, cannot apply for a retrial for other rulings include the jurisdiction objection.
(six) the jurisdiction objection system needs time to improve efficiency
China's existing laws and judicial interpretations not be clear on the second review period, a trial period is not strict enough, add a second instance court between, for the deportation of files to be occupied for a certain period of time, all these lead to the jurisdiction processing duration. At the same time, in determining the case to another court case, should also identify a relatively short time requirements relating to court in a relatively short period records and costs transferred out. Of course, these all need to improve legislation and judicial interpretation, to provide a clear legal basis.