Some views on the "civil trial activities and supervision of administrative litigation (for Trial Implementation)" the interpretation of

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Some views on the "civil trial activities and supervision of administrative litigation (for Trial Implementation)" interpretation of the

Construction of the civil administrative procuratorial supervision system

Time: October 25, 2012 source: Ningxia attorney network
Some views on the "civil trial activities and supervision of administrative litigation (for Trial Implementation)" interpretation of the
 
 
In order to implement the requirements of the reform of the justice system, the Supreme People's Procuratorate and the people's Supreme Court in 2011 March issued a "On the civil trial activities and administrative litigation lawSeveral opinions supervision (for Trial Implementation) "is high will [2011] document No. 1 (hereinafter referred to as the" opinions ") and" the Supreme People's court, the Supreme People's Procuratorate on the part of the local development of civil execution supervision pilot notification "is high will [2011] document No. 2. "A high two sign file" is the civil administrative procuratorial supervision system construction achievements, has the very strong instruction function to the development of the civil administrative procuratorial work. In order to correctly understand the significance of the "opinions", and further promote the study on related issues, and actively and steadily implement the "two high two sign documents", the interpretation of No. 1 document.
One, the civil trial activities and the prosecutorial supervision of administrative litigation scope
The connotation and accurate understanding of "civil trial activities" and "administrative lawsuit", in accordance with the law to justice exercise procuratorial authority, to perfect the procedure, has an important positive significance. "Opinions" provisions of the existing law adheres to the principle, at the same time to the development of vision to treat the civil trial and the prosecutorial supervision of administrative litigation scope.
(a) in accordance with the legislative intent of the current method to understand the "scope of civil trial activities"
The definition of "civil" depends on the definition of "civil" and "trial" two concepts. From the orientation about the constitution "the people's Court of the people's Republic of China are the judicial organs of the state", the court adjudication of disputes, confirm or create, destroy the relationship of rights and obligations of the activity, all belong to the judicial activities. "Civil" includes not only the civil procedure rules, the court on the basis of civil procedures, supervision procedure, the procedure of public summons, the bankruptcy procedure trial activities, including the court applied the enterprise bankruptcy law, the special maritime procedure law case. The 2007 amendment to the civil procedure law "chapter from the bankrupt procedure", because the state has developed a special law of bankruptcy procedure. Method fourth: "enterprise bankruptcy provisions of insolvency proceedings, not the provisions of this law, the relevant provisions of the civil procedure law applicable." Special Maritime Procedure Law second stipulation: "maritime litigation within the territory of the PRC, application of the" PRC Civil Procedure Law "and the law. With the provisions of this law, in accordance with the provisions of." The past practice, the procuratorial organ supervises the court shall apply the ordinary procedure of first instance, the simple procedure, the trial procedure and trial supervision procedure trial activities. To supervise the court applies for bankruptcy, maritime procedure trial, prosecutors also need to be explored and summarized according to the new situation encountered in practice.
(two) the civil mediation and conciliation into the scope of prosecutorial protest
"Opinions" provisions of article sixth: "the people's Procuratorate of the people's court has found a legally effective civil mediation, conciliation to harm the interests of the state, social and public interests, it shall lodge a protest." Procuratorial organs mediation as protest object, mainly based on the following considerations:
First, mediation is one of the major features of the judicial system in China, is another lawsuit litigation judgment, ruling, court presided over the mediation activities belong to the judicial activities. In practice, the majority of civil litigation and administrative compensation litigation mediation under the auspices of the court. In Litong District Court as an example, in 2011 received a total of civil and commercial cases and administrative cases, a total of 2700 pieces, 76% cases with mediation. In the past, the procuratorial organs supervision of illegal or wrong mediation is mainly present procuratorial suggestions to the court, the lack of rigid binding. Through retrial correction, ensure that the mediation legal justice, safeguard judicial credibility requirements. Thus, for effective mediation refuses to accept the case, it is necessary to give a relatively rigid relief.
Secondly, the mediation can be corrected through the retrial procedure. Existing laws and regulations, if a party refuses to accept the mediation can appeal, the court can review in accordance with the application of provisions of the criminal procedure law, article 182nd: "civil parties to a legally effective mediation book, provides evidence proving that the mediation violates the principle of voluntariness or mediation agreement in violation of law, may apply for retrial. The people's court to review the case, shall the retrial." The Supreme People's court "on the application of < > the procedure for trial supervision of civil procedure law interpretation of several issues" thirtieth stipulates that: "the parties fails to apply for a retrial, procuratorate not a protested case, the court found that the original judgment, ruling, the mediation agreement is damaging the interests of the state, social and public interests and so does the error condition, should be in accordance with the provisions of the 177th civil litigation the law retrial." Since the law of mediation can retrial, it is necessary to grant the procuratorate authority on mediation, civil mediation organization refuses to accept the application for retrial, an additional layer of security.
Thirdly, practice, illegal behavior of a considerable part of the false litigation appropriation or public property, rights by the parties malicious collusion, reach a mediation agreement to achieve. According to the current procedure law, litigation cases involving public interest, often without the corresponding public interest representative to participate in the proceedings. The "opinion" clearly defined the damage to national and social public welfare of mediation, procuratorial organs can protest, is equal to protect the public interest and individual interest.
The "opinion" mediation shall be included in the scope of procuratorial organ has far-reaching significance to carry out the civil administrative procuratorial business. "Jiang Dynasty and folk lending dispute case of Wang Xiaole" is our hospital to court mediation Litong District law together with supervision according to law, and suggests that the court starting retrial procedure, the specific case finally get changed.
The investigation system of administrative procuratorial supervision in civil, two
2001Years of high school issued the "people's Procuratorate civil administrative appeal case handling rules" provides several cases the prosecution investigation, but no clear intent of procuratorial organs investigation. "Opinion" clearly the third procuratorial investigation positioning on the "verification" with the case.
(a) necessity of the procuratorial investigation
The current civil procedure law and administrative procedure law are not clearly defined the procuratorial organs have the right to investigate. In practice, the investigation and review the files is the most commonly used examination methods. The majority of the procuratorial organ obtaining evidence submitted evidence to the court for retrial of fact finding. Investigation is a necessary means of procuratorial supervision, is the proper meaning of procuratorial power, is the inevitable requirement of ensuring procuratorial organs exercise the authority of justice. Protest for procedural law, legitimacy is usually not the investigation was unable to judge the referee. In order to avoid the blindness of procuratorial supervision, safeguard the seriousness of judicial activities, it is necessary to allow the prosecution investigation.
The investigation of the civil trial and supervision of administrative litigation based on legitimate litigation activities around the trial, the defendant in administrative litigation. To start, which belongs to the relationship between public power subject, by the "two high" to make provisions without obviously wrong. "Opinions" and the procuratorial investigation positioning in the "investigation", rather than "investigation". Procuratorial organs investigation is aimed to further determine the effective judgment and mediation is legal or not, not submitted to the court as a reverse the original judgment ascertaining the facts of evidence. Only under special circumstances, the procuratorial organs obtain evidence need submitted to the court, but should still after the interrogation procedure in court.
(two) the procuratorial business
"Opinions" provisions of article third "people's Procuratorate for a legally effective judgment, ruling, mediation", a specific situation, "to the parties or the case investigation and verification".
"Opinions" provisions of the three kinds of situations: the procuratorial organs investigation and verification may damage the interests of the state and social public interest; civil litigation or administrative litigation plaintiff, third people in the original trial because of objective reasons not to collect evidence, a written application to the court to investigate and collect, the court shall investigate and collect the survey did not collect; civil trial, administrative litigation activities in violation of the statutory procedures, may affect the correct judgment, ruling of the case. This provision is intended to ask the procuratorial investigation on Legal protest the reasons, mainly aimed at the effect and mediation or damage the interests of the state, the collective interests, the social and public interests or the interests of others investigation to verify the referee. "The protest for procuratorial investigation and the provisions of the civil procedure law" provisions of the views are not consistent, is mainly based on the following considerations:
First, the need to protect the lawful rights and interests of reality. As a matter of procedure law "judgment, ruling by law applicable to an error", "opinion" is not specified, because the referee and mediation applicable law is correct, which belongs to the value judgment and fact judgment does not belong to the category, without this special investigation.
Secondly, the special needs of the protection of public interests. "Opinions" provisions of the procuratorial organs may impair judgment and mediation of public investigation and verification, is mainly due to lack of public interest litigation representing public interest, is often ignored, it is necessary to clear the investigation to verify the procuratorial organs duty. "Opinions" article third (a) and part (two), (three) is not parallel, intended to emphasize that the procuratorial organs for judgment and mediation damage state and the social public welfare shall be investigated in accordance with the terms of reference. Concerned citizens, the organization of individual interest, shall conduct investigation and verification in accordance with the application.
Thirdly, with the existing provisions to avoid repetition. The provisions of the civil procedure law, judges who take bribes, play favouritism and commit irregularities, perverting the law, breach of privilege, be forgetful of one's duties behavior in the trial of the case, the procuratorial organs should protest. In practice, the procuratorial organs only through the investigation to determine whether there is the judicial personnel duty facts. "Opinions" provides no investigating judges malfeasance, not narrowed the scope of procuratorial supervision, does not mean that the prosecution of such cases would not protest. But because of high school, has been in 2010 October jointly with the Supreme People's court, the Ministry of public security, the Ministry of state security, the Ministry of justice and other departments to develop the "some provisions on strengthening the legal supervision of malfeasance judicial personnel in litigation activities (for Trial Implementation)". In practice, procuratorial personnel for civil and administrative cases of appeal for citizens, organizations, report, report the judicial personnel malfeasance clues, shall be investigated in accordance with the requirements of the.
In civil litigation and administrative litigation, the court on the principle of evidence submitted by the parties based on the material, make the fact judgment according to the legal rules of burden of proof. Therefore, "opinions" will investigate and verify the facts of the case of the procuratorial organs within the parties unable to obtain, the court shall investigate and not the scope of investigation. This and related judicial interpretation of the Supreme Court "in the people's court shall investigate and collect and survey did not collect" situation is basically the same. Of course, the parties based on the evidence ability is insufficient, the procuratorial investigation court omission, shall apply for. In addition, the authenticity of the parties to submit evidence, especially the complainant to submit evidence of doubtful authenticity, the procuratorial organs can also investigation and verification.
(three) the basic rules of the procuratorial investigation
The provisions of the Civil Procedure Law of the parties and other agents ad litem, the burden of proof lawyer investigation of evidence and the court to investigate and collect evidence, but no procuratorial organs investigating. Procuratorial organs does not represent any party, nor the trial subject. Because of the different legal status in litigation, the procuratorial organs investigation and verification is different from the parties, lawyers and agents ad litem, forensics, is also different from the court to investigate and collect evidence.
The procuratorial personnel review civil administrative appeal cases, should review the complainant to submit the materials carefully, to carry out investigation to verify if necessary. Prosecutors investigating the case, shall be composed of two or more procuratorial workers together, and the person to be investigated to produce documents. Written record of an investigation shall be checked by the person under investigation, or seal, investigators signature. Evidence for the parties to provide, the procuratorial organ shall issue a receipt, name, indicate evidence of receipt time, number of copies and number of pages, the signature or seal of the prosecutor or the court clerk. That the people's court documents provided by the relevant units or individuals, should distinguish between truth and falsehood.
The complainant for procuratorial authorities to investigate and verify the facts, it shall apply for protest together with the. The application shall clearly be stated on the name or unit name, domicile and other basic information, the investigation and collection of evidence, the reasons to the content of procuratorial organs investigation and verification of the facts to be proved, the court shall not be permitted to investigate and collect evidence to prove the notice to request the court to investigate and collect evidence.
The procuratorial organ to investigate and verify the relevant units and individuals, the relevant units and individuals shall not refuse or obstruct the investigation to verify the prosecution; procuratorial organs responsible person or persons responsible for public agencies to refuse or obstruct the procuratorial organs investigation to verify the case mainly, can put forward to take disciplinary recommendations to the supervisory organ or other relevant organs.
The procuratorial organs civil administrative appeal cases, can refer to the 118th civil procedure law about the court commissioned the survey provisions when necessary, entrust a procuratorial agency to carry out investigation to verify.
Three, the adjudication of first instance made appropriate restrictions apply for protest
"Opinions" provisions of article fourth: "the parties in a judgment, ruling to the people's Procuratorate protest before the entry into force of the application, the people's Procuratorate shall inform the appeal according to law. The parties to a trial can appeal decision, ruling in a legally effective complaint, should not appeal to reason; for no justifiable reason, will not be accepted."
(a) the necessity for the adjudication of first instance application of appropriate restrictions of protest
According to the present civil procedure law, the procuratorial organs to lodge a protest against the judgment, including the second referee, also include the effective adjudication of first instance. Because the reason and application subject matter of protest there is cross, in 2007 after the revision of the Civil Procedure Law of two reasons there is overlap, the parties actually have in the first instance judgment effect options. For the appeal and protest, there have always been different opinions. The viewpoint thinks, should be restricted to not make right parties apply for protest. Also with a view, do not respond to the adjudication of first instance application appeal to limit.
As a reform measure, not only under the framework of the existing legal principle, and should focus on the future development of. Cao Jianming attorney general "in the national procuratorial organs second civil administrative procuratorial work conference" pointed out: "if a party refuses to accept the judgment of first instance shall first appeal, if fails to exercise the right of appeal or aversion to the procuratorial organ to use the right to protest, not only waste the limited, precious judicial resources, but also make the two-tier trial system should be lost the role of." Encourage the party to exercise the right of appeal, in favor of the procuratorial organ case structure adjustment and improvement. A clear relationship between appeal and apply for a protest, but also to implement the central requirements about "litigation procedure".
Final principle based on the "opinions", fourth of the parties can appeal decision, ruling for the appropriate limits of protest. The parties, including the plaintiff and defendant,, including third party in litigation.
Two.Justification for a trial referee for protest ""
"Opinions" requirements, the parties do not appeal, apply directly to protest need justification. What is the reason?
The legal relationship for the appeal and protest have no definite provisions. The adjudication of first instance application appeal, does not need to provide more evidence to prove, but there should be a "good reason" that he did not exercise the right of appeal. Combining with the judicial practice, factors affecting the litigant appeals court both factors, also has the self factors. For example, the parties due to force majeure and other not appeal within the statutory time limit, if the court of appeal trial judges can be used after the actual announcement, do not know the court judgment can not exercise the right of appeal to the court; the client knows before making a trial judge in the case to a higher court a request, or a higher court on the case guidance; other judge superior court made previously to law, regulations applicable interpretation unfavorable to the party concerned, and so on, can be regarded as legitimate reasons.
(three) outside the case for protest rights without restrictions
According to the judicial interpretation of the Supreme People's court and the judicial practice, adversely affected the judicial referee outsider, have the right to apply for a retrial, should also have the right to apply for a protest. "Outsider", namely the other interested parties outside the "". Legal interest is the interest relationship. "Opinions" not to other interested parties is a judgment, ruling for protest restrictions. Mainly because of an outsider is not entitled to statutory right of appeal, but an outsider because not to participate in the litigation, often on the lawsuit to know. Therefore, the "opinions" during the trial, the case to the procuratorial organs for the protest, the procuratorial organs shall accept. But in reality this is rarely the case, according to my information, my courtyard civil and administrative departments have not yet received the outsider appeal.
Four, clear the procuratorate can propose retrial procuratorial suggestions to the court at the same level
"Opinions" clear the procuratorate can propose retrial procuratorial suggestions judgment and mediation conforms to protest for the trial court. "Specified in the first paragraph of article seventh opinion": "the people's procuratorates at various local levels in accordance with the views of fifth, sixth under the circumstances stipulated in judgment, ruling, mediation, the procuratorial committee decided, can put forward retrial procuratorial suggestions to the people's court at the same level.
(a) consistent with the protest grounds for retrial procuratorial suggestions
Some view, retrial procuratorial suggestions and protest the pursuit of the same legal effect. Even as a way of supervision, it shall also apply to other circumstances beyond the legal appeal case.
Carefully examine the appeal and retrial, see not hard, retrial procuratorial suggestions are not independent for some cases of space. The 2007 amendment to the civil procedure law has the protest party applying retrial reasons and the unity of reason, retrial procuratorial suggestions also aims to start the retrial. Protest and apply for retrial statutory covers almost may occur in the practice of the referee illegal case. Other circumstances if the retrial procuratorial suggestions applicable to situations outside of the protest, retrial procuratorial suggestions did not exist in space and necessity. Based on this, "opinions" provisions, the local procuratorate procuratorial suggestions to meet the conditions of protest judgment, ruling, mediation.
(two) the effectiveness of the proposed retrial
And protest the legal effect is caused by the different effect of court retrial, retrial procuratorial suggestions that caused the referee court to review and mediation, and in receipt of retrial procuratorial suggestions, three months will review the results to the people's Procuratorate written reply. The prosecution retrial procuratorial suggestions that the court shall not retrial decision improper, it shall be submitted to the superior procuratorate. Because in the judicial practice, retrial procuratorial suggestions to start the retrial procedure than protest procedure more convenient, faster, and can save the judicial resources, thus high school now compared to promote to form correct retrial procuratorial suggestions of wrong judgment, but some retrial procuratorial suggestions are not Court adopted, so do not be adopted retrial procuratorial suggestions if you think comply with the conditions of protest, can be to the superior procuratorate to protest.
The procuratorial organ suggests the retrial of the case whether to participate in the retrial procedure, should be based on whether the public interest as to the distinction between different. The procuratorial organ believes that the original judgment or mediation may harm the public interest, the procuratorial organs should in principle be attend retrial litigation as the public representative. The procuratorial organs according to the party or an outsider appeal proposed retrial procuratorial suggestions, in principle the procuratorial organs do not need to participate in the retrial procedure.
Five, non retrial procuratorial suggestions
"Opinions" provisions of article ninth: "the court trials have the opinion fifth, sixth than in violation of the provisions of laws, not suitable for retrial, the people's Procuratorate shall make suggestions to the people's court." "The parties believe that court trials in the provisions of the preceding paragraph, the people's court does not correct the objection, appeal to the people's Procuratorate, the people's Procuratorate shall accept." Also refers to the general illegal behavior during the process of trial, the case does not affect the entity not judgment or influence, in the form of correct general procuratorial suggestion, and the retrial procuratorial suggestions of different.
(a) applicable to the case of procuratorial suggestions
According to the 2009 high school issued the "people's Procuratorate procuratorial suggestions work rules (Trial)", procuratorial suggestion is the main content of the suggested that the relevant units to perfect the system, strengthen internal control, supervision, the correct implementation of the laws and regulations, improve the social management, service, preventing and reducing crimes. "Opinions" Ninth other circumstances prescribed in the first paragraph of "the opinion fifth, sixth outside", including two conditions: one is the judgment and mediation law but not suitable for the retrial correction; two is the other trial behavior judgment and mediation law has not affected the referee or mediation of fairness.
(two) recommended the prosecution and litigation rights relief
In civil litigation, administrative litigation, the procuratorial organs are usually not to participate in the litigation process, process and result of court cases without notification to the procuratorial organ. The illegal civil trial, administrative trial links, the procuratorial organs lack effective discovery channel. At the same time, determined by the task and the characteristics of the civil litigation, the litigation process, illegal adjudication act or omission, often against the litigation rights of the parties. The procuratorial supervision and the exercise of litigation rights together will help to enhance the supervision of targeted, but also strengthen the litigation rights.
The parties believe that illegal adjudication act or omission infringement of their litigation rights, in principle should be the first to raise an objection to the court. The court did not correct the situation, parties can appeal to the procuratorial organs.
Six, the defendant of administrative litigation supervision
In order to guarantee the judicial activities carried out smoothly, procedural law has been authorized the elimination procedure prevent measures, but due to the particularity of the defendant in administrative litigation status, these measures are very difficult to come in handy. The prosecution of the defendant in administrative litigation in fact there are many difficulties and problems, the same with the court for example, the prosecution in the people, money, is also subject to the local administrative authorities, in the face of unlawful interference to exclude the court, procuratorate sometimes and step back. In contrast, the only advantage is that the prosecutorial supervision of administrative litigation defendants, prosecutors also bear the functions of investigation of duty crime, illegal to perform duties or fails to perform the litigation procedure duties, if caused huge losses to the interests of the country and the people, of the crime of malfeasance, the procuratorial organs investigation.
In order to guarantee the court according to law the exercise of administrative jurisdiction, the provisions of article eleventh "opinions", "people's Procuratorate administrative appeal, administrative organs have found in violation of the provisions of the law, the people's court may affect the impartiality of the trial, procuratorial suggestion should be proposed to the administrative organ, and to inform the people's court." However, exclude the administrative intervention in litigation, often need to carry on Supervision in the case before the end of. For the prosecution not to participate in the litigation process, how to understand the administrative litigation cases, is still a problem to be solved. If you rely on the court when interference occurs to inform, procuratorial supervision will be transformed into Supervision court based on needs, rather than based on supervision and fair trial.
Seven, the prosecution resolving social contradictions, put forward to make clear a requirement
"Opinions" article twelfth of the procuratorial organs appeal and promoting reconciliation content, is the procuratorial organs of the specific requirements to promote resolving social contradictions handling complaints, but also reflects the examination and jointly safeguard the judicial authority of spirit.
(a) appeal to work
Procuratorate review of civil appeals, for civil right, lawful, fair, does not have the reason to protest, appeal to work, enhance the authority of justice and maintaining social stability.
Procuratorial organs should not only independent judgment in the case, but also should demonstrate its independent and impartial image to society. Therefore, the procuratorial organs do appeal to take sentence, shall be conducted in an appropriate manner. Displays in: only to the party concerned or interested parties appeal cases, the procuratorial organs have necessary to do appeal to work; focusing on the appeal for appeal; only apply for appeal people attention to social and public interest litigation, case, prosecutors even review that the court judgment is correct, no need to explain to the public. Of course, the court appeal right, points of interest litigation procuratorial organs should be focused on the complaint reasons, the legitimacy of the clear, clear, well understood the referee.
(two) the civil reconciliation
The Civil Procedure Law of the settlement in two ways: the former settlement, conciliation of execution. The civil protest according to the characteristics of the referee's decision, the review prosecution case, usually after the end, in the normal procedure referee effect. The court is hearing the case, do not need to reconcile the procuratorial organ. Can say, the procuratorial tache reconciliation includes two kinds of situations: during the period of review the prosecution, the parties reached a settlement agreement on the original judgment or mediation execution; after prosecutors protest, the court retrial period, the parties reached a settlement. For the first case, the parties have the willingness to settle, prosecutors can through reasoning clear, promote the mutual understanding, consensus, reached a settlement. In the latter case, the parties have the willingness to settle, the court should communicate with the procuratorial organs, procuratorial organs shall not harm the public interest settlement review. The settlement does not harm the national and social public welfare, the procuratorial organs shall be agreed between parties.
The part of the prosecution, the parties reached a settlement, its significance lies not in the procuratorial organs play a great role in adjusting the relationship between the rights and obligations of parties, but that the procuratorial organs respect both parties will resolve the contradictions, and promote the. If the settlement after one party goes back on his word, need to be restored to the original judgment execution, rather than automatically restore review prosecution procedure. Following the settlement of one party retracts, and to start the procuratorial supervision program, should appeal to the procuratorial organs.
Eight, the procuratorial personnel to attend the appeal court
The civil procedure law stipulates: "the case protested by the people's Procuratorate, the people's court for retrial, it shall notify the people's Procuratorate to send representatives to attend the court." Prosecutors at the appeal court, is of great significance to the effective performance of procuratorial supervision.
(a) the procuratorial personnel to attend the appeal court task
"Opinions" thirteenth paragraph second: "the procuratorial personnel attends the court's mission is to: (1) read out the protest; (2) to the people's Procuratorate authority survey, including the favorable and unfavorable complainant evidence to show, and the parties concerned shall indicate the problem."
"Opinions" provisions of procuratorial personnel published court opinions without. In practice, there is a consensus among the local procuratorial organs and courts, documented, in accordance with the consensus or file operations. No consensus about the place, the procuratorial organs shall be in the production of the protest, in fact, an accurate account of the evidence materials at the same time, according to the circumstances of the case to analysis, reasoning.
The procuratorial personnel do not participate in cross examination in court. The procuratorial organs in accordance with the application of obtaining evidence, can be provided as a request Party evidence. The procuratorial organs in accordance with the terms of reference of the investigation and collection of evidence shall be produced at the hearing, listen to the opinions of the parties concerned, and may investigate and collect the evidence described the situation, but does not participate in the examination.
(two) attended the retrial court supervision mode
"Opinions" provisions of the third paragraph: "thirteenth prosecutors found that hearing is illegal, should be the end of the trial or after the adjournment, the inspector general report, on behalf of the people's Procuratorate prosecution recommendations made." This provision indicates that the procuratorial personnel attended the protest, retrial court, also shoulder the task of supervision of retrial. To the procuratorial personnel on behalf of the procuratorial organs, procuratorial organs supervision subject is instead of procuratorial personnel. Therefore, procuratorial suggestions to correct the trial against the law, shall be made in the name of the procuratorate.
Nine, standardize the procuratorial power restriction and reverse people's court
"Opinions" requirements of procuratorial personnel perform their duties according to law, strictly abide by the rules and discipline of the prosecution, not seek any personal gain for the units and individuals, shall not abuse the right of supervision.
"Opinions" also provides for the procuratorial supervision on reverse restriction mechanism of the court. The provisions of article fifteenth: "the people's court found that the procuratorial supervision acts in violation of laws or procuratorial discipline, may make a written proposal to the people's Procuratorate, the people's Procuratorate shall within one month of the processing results to reply in writing to the people's court; the people's court has the objection to the people's Procuratorate's reply, can put forward to the people's Procuratorate at the next higher level through the people's court at a higher level. The people's Procuratorate at the next higher level that the people's court suggest correct, should require the lower level people's Procuratorate timely correction." The control object of procuratorial supervision includes procuratorial behavior, including the procuratorial personnel perform their duties behavior; including supervision is legal, and whether the procuratorial personnel activities violating the discipline. Procuratorial organs and procuratorial personnel at all levels, in the performance of the civil trial and supervision of administrative litigation. At the same time, the court shall accept the restriction. Procuratorial organs should be to accept the court control combined with the implementation of the discipline. At the same time, the procuratorial organs perform civil and administrative litigation supervision, shall supervise and correct judgment law and court system of discipline inspection and supervision procedures combined, in the review of the protest cases at the same time, found the judicial personnel illegal shall be subject to disciplinary responsibility or legal liability, the relevant materials shall be transferred to the court of discipline inspection and supervision departments or relevant authorities.
 
 
 
 

The Supreme People's court, the Supreme People's Procuratorate issued "several opinions about to exercise legal supervision over the civil trial activities and administrative litigation (for Trial Implementation)

Published: 2011 08 month 18 days reading times:
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Shandong QingdaoSong Jianhai lawyer

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Abstract

To implement the central authorities on the "improve the scope of procuratorial organs to implement legal supervision on civil, administrative procedures and" task of reform, the Supreme People's court and the Supreme People's Procuratorate formulated the "several opinions about to exercise legal supervision over the civil trial activities and administrative litigation (Trial)", which are hereby issued to you, please follow carefully. All problems such as in the implementation, please report to the Supreme People's court, the Supreme People's procuratorate.

The Supreme People's court, the Supreme People's Procuratorate issued "several opinions about to exercise legal supervision over the civil trial activities and administrative litigation (for Trial Implementation)

(2011) high will (No. 1)

The provinces, autonomous regions, municipalities directly under the central government, the Supreme People's court, the people's Procuratorate, the PLA military court, military procuratorates, the production and Construction Corps, Xinjiang production and Construction Corps of the people's Procuratorate of the Xinjiang Uygur Autonomous Region Higher People's court:
to implement the central authorities on the "perfect prosecution law enforcement organs in civil, administrative supervision scope and procedures" task of reform, the Supreme People's court and the Supreme People's Procuratorate made several "litigation legal of civil trial activities and administrative supervision opinion (Trial)", which are hereby issued to you, please earnestly. All problems such as in the implementation, please report to the Supreme People's court, the Supreme People's procuratorate.

The Supreme People's court
The Supreme People's Procuratorate
March 10, 2011

Some opinions of the Supreme People's court, the Supreme People's Procuratorate on to exercise legal supervision over the civil trial activities and administrative litigation (for Trial Implementation)

Article 1 in order to improve the prosecution of civil trial activities, the scope of administrative litigation legal supervision and procedures, to maintain justice, according to the Constitution and the law, combined with judicial practice, the enactment of this opinion.

Article second in accordance with "the people's Republic of ChinaThe Civil Procedure Law"Fourteenth and" the administrative procedure law of the people's Republic of China "in article tenth, the people's procuratorates to exercise legal supervision over civil proceedings, administrative proceedings.

Article third the people's Procuratorate for a legally effective judgment, ruling, mediation, in any of the following circumstances, can the party or the case investigation and verification:

(a) may damage the interests of the state, social and public interests;

(two) the plaintiff in the original trial, third people because of objective reasons can not collect evidence in litigation or administrative proceedings, the people's court to apply for a written investigation and collection, the people's court shall investigate and collect the survey did not collect;

(three) the civil trial, the administrative litigation activities in violation of the statutory procedures, may affect the correct judgment, ruling of the case.

The fourth party shall, prior to the commencement of a people's Procuratorate for ruling to protest in the trial, the people's Procuratorate shall inform the appeal according to law. The parties to a trial can appeal decision, ruling in a legally effective complaint, should not appeal to reason; for no justifiable reason, will not be accepted.

Article fifth the Supreme People's Procuratorate of the people's courts at all levels have a legally effective civil judgment, ruling, the people's Procuratorate at a higher level to the lower courts have a legally effective civil judgment, ruling, after investigation, found the "PRC Civil Procedure Law" stipulates that the 179th circumstances, meet the conditions of protest, should be in accordance with the the provisions of the "PRC Civil Procedure Law" article 187th, to present a protest to the people's courts at the same level.

The people's procuratorate finds that the people's court has taken legal effect of the administrative decision and will not be accepted, rejected the prosecution, Guan Xiaquan dissentThe administrative rulingThere, "administrative procedure law of the people's Republic of China" sixty-fourth regulations, it shall lodge a protest.

Article sixth the people's procuratorate finds that the people's court has legally effective civil mediation,Administrative compensationMediation to harm the interests of the state, social and public interests, it shall lodge a protest.

seventh local people's procuratorates at different levels in accordance with the views of fifth, sixth under the circumstances stipulated in judgment, ruling, mediation, the Procuratorial Committee decision, the court retrial can the people to.

The people's court received the retrial procuratorial suggestions, the examination shall be conducted within three months and will review the results to reply in writing to the people's procuratorate. The people's court to retrial, shall notify the party concerned. The people's Procuratorate believes that the people's court shall not retrial decision improper, people's Procuratorate for protest.

Eighth People's court rejected the application for retrial, the parties to the people's Procuratorate appeal, ruling People's Procuratorate to reject the application for retrial shall not lodge a protest. The people's Procuratorate review that the original effective judgment, ruling, the mediation accord with the conditions of protest, it shall lodge a protest. The people's court found, protest excuses and dismissed partyThe application for retrialFor essentially the same, can judgeUpheld.

Trial court of the ninth people have the opinion fifth, sixth than in violation of the provisions of laws, not applicableThe retrial procedure, the people's Procuratorate shall make suggestions to the people's court.

The parties believe that court trials in the provisions of the preceding paragraph, the people's court does not correct the objection, appeal to the people's Procuratorate, the people's Procuratorate shall accept.

Article tenth the people's Procuratorate procuratorial suggestion, the people's court shall make a treatment in a month and will deal with a written reply concerning the people's procuratorate.

Any comments to the people's Procuratorate of the people's court, can be raised to a higher people's court by the people's Procuratorate at a higher level. The people's court at a higher level that the opinions of the people's Procuratorate right, shall supervise the lower courts rectify.

Eleventh People's Procuratorate administrative appeal, administrative organs have found in violation of the law, the people's court may affect the impartiality of the trial, procuratorial suggestion should be proposed to the administrative organ, and to inform the people's court.

Article twelfth the people's Procuratorate civil, administrative appeal case, after review that the court trials, the legitimate right, it shall timely inform the relevant parties will review the results and explain the reason, do take sentence appeal to work.

The people's Procuratorate civil appeal, administrative compensation litigation appeal cases, both parties will comply with the conditions of reconciliation, reconciliation, can advise the partiesReconciliation.

Article thirteenth the people's court appeal cases, shall notify the people's Procuratorate to send representatives to attend the court.

The procuratorial personnel attends the court's task is:

(a) read out the protest;

(two) to the people's Procuratorate authority survey, including the favorable and unfavorable complainant evidence to show, to describe and to the question.

The researchers found that hearing is illegal, should be the end of the trial or recess, to the inspector general report, on behalf of the people's Procuratorate prosecution recommendations made.

Article fourteenth the people's Procuratorate supervision of civil cases, administrative proceedings, shall perform the responsibility of legal supervision in accordance with the law, strictly abide by the rules and related procuratorial discipline, and shall not seek any personal gain, not to abuse the power of supervision.

The fifteenth people's court found that the procuratorial supervision acts in violation of laws or procuratorial discipline, may make a written proposal to the people's Procuratorate, the people's Procuratorate shall within one month of the processing results to reply in writing to the people's court; the people's court has the objection to the people's Procuratorate reply opinions, can be presented to the people's Procuratorate at a higher level through the people's court a level. The people's Procuratorate at the next higher level that the people's court suggest correct, should require the lower level people's Procuratorate timely correction.

Article sixteenth the people's Procuratorate and the people's court shall establish the corresponding coordination mechanism, timely solve the problems appeared in practice.