Ten effect of the new "Civil Procedure Law" on the marriage cases

(author: Shanghai Shanghai law firm Wang Xiaocheng.

 

2012Years8Month31Day, the Eleventh NPC Standing Committee eighteenth meeting, adopted an amendment to the "PRC Civil Procedure Law" decision, the Civil Procedure Law revised(Hereinafter referred to as "the new civil procedure law")Will in2013Years1Month1The date of implementation. This is the law of self1991Second years since the implementation of the amendment, the amendment to2007The first amendment years, is a major overhaul, according to the National People's Congress promulgated decision, is sixty, the actual relates to specific provisions, increase, modify the exclusions, a total of eighty-five, the current civil procedure law perfect further, also added a small amount of public interest litigation, a court, the act preservation, third damage to the revocation system. The implementation of the new civil procedure law, the marriage family case at least influence from ten aspects.

A security, prosecution, accepted no longer "difficult"

The original provisions:Article 112ndThe people's court receives a statement of complaint or an oral complaint, upon examination, that meet the conditions of prosecution, shall be filed within seven days, and notify the party concerned; it does not meet the conditions of prosecution, shall make a ruling within seven days will not be accepted; the plaintiff is not satisfied with the order, may file an appeal.

The new provisions:Article 123rd the people's court shall safeguard the parties in accordance with the law to enjoy the right to sue. In accordance with the law article 119th prosecution, must accept. In line with the conditions for prosecution, shall be filed within seven days, and notify the party concerned; do not meet the conditions of prosecution, shall make a ruling within seven days, will not be accepted; the plaintiff is dissatisfied with the ruling, it may file an appeal.

Litigious right is endowed by the constitution to the basic right of the citizen."On file" has been the common people often reflect the problem. For marriage and family cases involving the gossip things, individual courts tend to internal documents to limit the right to sue, received the plaintiff indictment, to review the material grounds, unresponsive.

2011Years5In August, my colleague had for the case, when a people's court to submit registration materials, because of the sensitive issues involved in the case, the first to put on record courtyard judge to supplement the needs, the reception procedure documents reason returned. At that time, the undertaking lawyer out of work with the courts to consider, in the supplementary documents again after second days to receive accreditation, the judge accepted the case materials, but was told to report to determine whether to put on record after the leadership research. The lawyers have argued, but ultimately failed to immediately put on record, but can only wait. During the party, many times to petition the court petition reception staff, inform the parties of the case has been submitted to the relevant departments, the relevant personnel to carry out the communication solution. Finally, the case has been to10In August, was told to pay the legal fees formally placed on file, only with the case5Months.

The above is about in line with the conditions for prosecution, typical case was delayed filing. So do not meet the conditions of prosecution, is returned directly, or only in the form of oral make inadmissible decision, even oral order no, finally settle a matter by leaving it unsettled. Thus, caused the plaintiff appeal rights can not be the normal exercise, also may lose the entity rights judicial protection of opportunity.

The new civil procedure law the provisions of article 123rd, put forward the strict request to the people's court, in order to guarantee the right to sue.

First of all, this article clearly states: "the people's court shall safeguard the parties in accordance with the law to enjoy right to sue", this regulation is the emphasis on the eighth "extended court shall guarantee the exercise of litigation rights"; secondly, the court must improve work efficiency.To meet the prosecution, the court must accept. The use of the term is "must", the court without the other. After the case review, in line with the conditions of prosecution, shall be filed within seven days, and notify the party concerned; third, after investigation, the court complaint does not meet the requirements, not verbally notify the parties shall not be filed, but should notice after receiving the prosecution materials within seven days from the date in the form of a written ruling shall not be accepted here,, the provisions of the "decision" written form, the court has no right to use the "verbal" ruled inadmissible, safeguard the rights of parties appeal.

Two, non litigation mediation before the front, the plaintiff has the right not to mediation

New provisions:

Article 122nd the parties prosecute to the people's court for civil disputes, mediation, conciliation, the parties to the mediation except.

Shanghai Changning District people's court is the first implementation of the court mediation before litigation procedure, to resolve the dispute issue plea, promote both sides to resolve conflicts, peaceful settlement of disputes has accumulated rich experience. Litigation and mediation mechanism, is to provide a communication problem solving platform to "harmony" culture for dispute resolution, in practice actually played a good social effect. But in the case, also can appear mediation program. Especially the divorce case, because the family internal contradictions, the court is generally in the case before the two sides lawsuit before mediation organization. Of course, the court is based on seeking the views of the parties on the court, and some will make the parties signed a consent form, because the law of mediation shall be carried out in the party under the principle of voluntary.

With the establishment of multipartite mediation mechanism, dimension stability of harmonious thinking ahead, the courts have established litigation and mediation center. Mediation law culture, is a major feature, Chinese or East Asia harmony, pay attention to mediation, judicial mediation, civil mediation, once the impact on Europe and the USA. But many courts in the pursuit of social benefits, the pursuit of mediation rate, will emphasize one sidedly "mediation" mode. According to relevant data, a court mediation rate85%, or how many are forced mediation can make nothing of it, this serious violation of procedural dispute normal program. It is in this context, the amendment of civil procedure law, increase the provisions of article 122nd, for the prosecution to the court cases, suitable for mediation, mediation, the parties to the mediation except, no previous "except" provisions. According to the provisions of this law, the court on the case of mediation, need to have two conditions: one is suitable for mediation cases. The case as family disputes in divorce cases, the facts are clear, the dispute is not the case, the pre litigation mediation, bury the hatchet, nor is not a good thing; two parties refused to mediation, the parties to the mediation cases, the people's court shall file, no pretrial mediation. Therefore, this provision does not mean the mediation, mediation program, marriage parties have refused to mediation before litigation rights.

The marriage and family of such cases as the family dispute, which belongs to the "contradictions among the people", plus court after mediation rate performance, before the revision of the civil procedure law in the divorce case, basically in the case of "mediation". There are a lot of court in case the reception hall dedicated "mediation" acceptance window before litigation, litigation will guide collar family litigation cases directly to the "V" a window, divorce cases the plaintiff party or the attorney did not choose not to carry out the pre litigation mediation of space and room, can only be moved before litigation mediation accept, go the program. Sometimes, because of the need to deal with cases of mediation before litigation, to skip the program, can only be taken for preservation of property before litigation measures at the same time case. For the preservation of the proceedings required48The law hours immediately seized on the court, only agreed to directly file, enter the court trial procedures.

But the author in the2012The second half of the year have handled a Liu Mousu high in a divorce case, the plaintiff Liu worry about their transfer property, in a lawsuit filed at the same time for property preservation, because when the end of the court "just arrived on index tightening", in case to a court for the preservation of the proceedings, the judge is to be set up obstacles, not directly agree the filing, and require the parties to provide security conditions are very harsh, or to request the parties to provide guarantee property must be "clean" property, the so-called "clean" refers to the property can not have bank loans, not inhabited, cannot have household registration in the house, can not have a mortgage and so on, the plaintiff Liu consider at once into the pre litigation mediation, notice to each other a divorce case has entered the court, make the transfer of property as soon as possible, but choose to withdraw the case materials, temporarily not to sue for divorce. But the court is the result of the treatment according to withdraw, to put on record, and then ruled that agree with Liu withdrawal. Liu as a divorce case the plaintiff, in the absence of new facts to take place, not six months again filed for divorce to the court. Prosecution right, for the preservation of rights have been restricted.

After the amendment of civil procedure, the author expects the court to enforce new rules, Fully respect the wishes of the parties, "pre litigation mediation" program can change.

Three, to prevent local protectionism, to hear the case not to pay principle

The original provisions:

Article thirty-ninthIn civil cases of first instance in the superior people's court shall have the right to trial jurisdiction of the lower court, the first instance of civil case under its own jurisdiction to an inferior people's court.
In civil cases of first instance in the people's court at a lower level under its jurisdiction, that need to be tried by a people's court at a higher level, it may report to the superior people's court trial.

The new provisions:
   Article thirty-eighth In civil cases of first instance in the superior people's court shall have the right to trial jurisdiction of the lower court in civil cases of first instance; it is necessary to its jurisdiction over the lower level people's court, shall be reported to the approval of the people's court at a higher level.
In civil cases of first instance in the people's court at a lower level under its jurisdiction, that need to be tried by a people's court at a higher level, it may report to the superior people's court trial.

This article focuses on the provisions regarding the modification of the superior people's court to an inferior people's Court of the first paragraph. According to the provisions of articles before modification, the superior people's court to civil cases of first instance in its jurisdiction over an inferior people's court. In what case, the higher people's courts will be under the jurisdiction of his cases over which the court does not require, which will cause the case down at random, for breeding of local protectionism to provide a hotbed. Because, in the judicial practice, some on the court in order to make the case of first instance, the second is in the jurisdiction of the college, will should be under the jurisdiction of the case to the lower court, seriously affecting the trial interests.

For example, a case in Nanjing City Intermediate People's court, the plaintiff Ms. Zhang brother Xu B two equity transfer to sue their husband Xu Jiahe husband invalid dispute case. Because of the litigation subject of up to tens of millions of yuan, the plaintiff Ms. Zhang to2011Years8Month to Nanjing City Intermediate People's court filing. During the trial, Ms. Zhang is the husband because equity transfer to another company, in a district of Nanjing City People's court the husband Zhang Jia and Liu Bing stock transfer dispute. Nanjing City Intermediate People's Court of the court of equity transfer dispute case and a district of Nanjing City People's court proceedings "associated", "by a district court handled conducive to the unified standards and enforcement, to properly resolve the contradictions", so that the cases specified lower (a region) "the people's court according to the procedure of first instance trial". The Nanjing intermediate people's court ruling in2012Years10Month to make,The Standing Committee of the NPC has passed a revised "Civil Procedure Law" decision, but the distance to the implementation of the new law and3A month's time, the plaintiff Ms. Zhang received the order, according to the Jiangsu Provincial Higher People's Court of appeal. The author in writing this article, the Supreme Court of Jiangsu province have not yet come to a conclusion.

These cases, if according to the provisions of the new civil procedure law, the Nanjing intermediate people's court before the ruling down case, shall be submitted to the Supreme Court of Jiangsu province for approval. And, the premise to court approval, Ms. Zhang sued to the home equity transfer dispute case must belong to the "necessary" to an inferior people's court. So what the case is "necessary" to an inferior people's court case? Authoritative reading "NPC Law Committee Room of the civil law of the people's Republic of China Civil Procedure Law" interpretation of express as follows: according to the judicial practice, in some cases, such as bankruptcy case litigation, derivative relates to the risk of the financial system or the group disputes and other civil cases in first instance, when necessary, people's courts at higher levels may transfer to the lower level people's court. Considering the wide range and complexity of civil cases, how to determine the "necessary" to make clearly defined in the law, but by the Supreme People's court according to the judicial practice of judicial interpretation, make provision for the "necessary", strict restrictions on the people's court at a higher level to lower level people's court jurisdiction.

Four, citizens agent is cancelled, the legal services specification

The original provisions:

Article fifty-eighthThe parties, legal representative may entrust one or two persons to represent them in the action.
The lawyer, close relative of the party, persons recommended by social organizations or the units where the people, by the people's Court of other citizens, may be entrusted as an agent ad litem.

The new provisions:

Fifty-eighth parties, legal representative may entrust one or two persons to represent them in the action.

The following persons may be entrusted as an agent ad litem:

(a), legal service workers at the basic level;

(two) close relative of a party or the staff;

(three) the parties communities, institutions and relevant social groups recommended citizens.

According to the original law stipulates, ordinary citizens can participate in the court to civil litigation as the agent of litigants. This amendment mainly consider someone charging to citizenship agency cases, and it does not have the professional legal knowledge and professional skills, not really protect the litigation rights of the parties. Especially in case of marriage, the parties in the marriage failed in the whirlpool, more likely to be a lawyer banner to attract business "fake lawyer" confuse cheating, spend injustice money not to say, the case to do in a complete mess, finally make the already broken heart hurt again. In practice, there is a phenomenon, and also provides individual lawyers in violation of law, in a personal capacity to receive case, the lawyer fees charged to citizens, the identity of an agent to participate in litigation. The occurrence of such a situation, one is disturbing the legal service market, two is the case if any major mistakes, will bring the parties greater risk. The new law has abolished the provisions of citizens, is a kind of progress in the legal system, is in the protection of the dispute between the parties. According to "Legal Daily"1Month17The daily guide, the Beijing first intermediate people's court recently hearing the case, the appellant's attorney Li Mouxian said as a jobless citizens agent,Informed by the judge does not belong to the new civil procedure law article58Three cases of provisions, and took out the lawyer license, known as a lawyer agency. But because of its not in court to provide authorization, cannot be used as an agent to participate in the trial court, was ordered out of the courtroom.

Marriage the parties can entrust lawyers, grassroots legal service workers, entrust relatives as their litigation agent include: parents, children, siblings, grandparents and maternal grandparents. Of course, the marriage family party to the case, sometimes also need to trust in addition to other relatives and friends close relatives outside as an agent ad litem, according to the provisions of the new law of tight, these friends can not be directly commissioned to court litigation, the parties need to submit their community streets, neighborhood committees, village committees, and work unit own, by these units are recommended to the people's court, or other social organizations are recommended, to recommend the program, other relatives and friends can accept authorization as an agent to participate in the lawsuit.

Five, add the withdraw of the third person, debunking false litigation veil

New provisions:

Article fifty-sixth The object of action of both parties, third people believed to have the right to request an independent, have the right to bring a lawsuit.
The object of action of both parties, the third party has no independent claim, but the outcome of the case have a legal interest, may apply to participate in the litigation, or the people's court shall notify him to participate in the proceedings. The people's court third people to bear civil liability, have the rights and obligations of a litigant.

The provisions of the preceding two paragraphs third, because you cannot blame me for not to participate in the litigation, but there is evidence that a legally effective judgment, ruling, mediation book all or part of the error, damage the civil rights and interests, can be self knows or should know within six months of its rights and interests of civil damage on the day, to make the judgment, ruling, the people's court mediation. The people's court, the claim is established, shall be changed or reverse the original judgment, ruling, mediation; litigation request is not established, dismissed the action request.

The first and the second paragraph, maintain the provisions on the third party to participate in the litigation of the civil procedure law. The third party with independent claims, can be sued to participate in the proceedings.    

The author2010Years had the agent with the foreign bequest inheritance cases.A, B, C three plaintiffs suing Ding said:2000Years, Chinese Americans a high contribution to a nominal purchase is located in Shanghai city Minhang District road a get a No.102The house, and the lawyer witness as common property agreement book.2002Years7Month, the housing transfer to a name from a name.2003Years6In August, a high passed away, the house by the defendant Ding management. According to lawyers witnessed the common property agreement, requesting the court to confirm the housing to the three plaintiffs and defendants all, according to the common agreement: a segmentation40%, B40%, C20%, Ding20%. The three plaintiffs Sue Ding agreed. In the course of legal proceedings, third high in a USA son Zhang litigation cases that the original defendant, as the third party with independent claim in litigation request, as the only legal inheritance of a high, rejected three plaintiffs sue, and judgment on the inheritance of the house. The case has experienced Shanghai Minhang District people's Court of first instance, the Shanghai first intermediate people's Court of second instance, the court of final confirmation of the plaintiff and the three high signed the "agreement" authenticity is not recognised, the judgment: the only heir of the house according to Zhang dead all statutory succession.

The case is third people know three of the plaintiff and the defendant Zhang Ding in the right to inheritance of housing rights litigation situation, apply to join the litigation, in accordance with the law to safeguard their legitimate rights and interests. However, in practice, both have the right to request an independent third party or third party without independent claim, in many cases is often not aware of litigation, especially between the parties malicious collusion, false confession or other means to damage the interests of third party, the third person is unknown, it is difficult to participate in the proceedings among the.

In recent years, the cases of divorce, one party to make debt, transfer of funds, many property etc, in one of the spouses is not informed, were colluding with the outsider, secretly brought folk lending, confirmation, equity transfer dispute proceedings in the other court, both sides malicious collusion in court when court directly reach a mediation agreement civil mediation book issued by a court, or deliberately does not affect non focus on the dispute over the litigation request, the court. Thus through legal procedure, through mediation or judgment form confirmation during the marital relationship exists huge amounts of debt, or confirm a major joint property of husband and wife belongs to the other person and has been executed.

The entry into force of the court verdict and civil mediation, res judicata, divorce trial judges sometimes obvious that the party making cases for malicious prosecution, but because there is no legal basis, often is in accordance with the effective judgment or mediation book, make a determination of the relevant facts, have a significant impact on the other the interest of one of the parties. For this kind of malicious litigation, although from the Supreme People's court to the Supreme Court of Shanghai, the Supreme Court of Zhejiang province has made relevant regulations, take measures, but due to the legislative level restrictions, the effect is not ideal.

2009Years, we have in Shanghai Luwan District people's court agent a divorce case. After the plaintiff Miss Jiang sued for divorce, the man Lee take various measures have been delaying cases of normal hearing, after repeated communication with the presiding judge, determine the session, the man Lee suddenly before the trial court to submit three copies of civil mediation, a male's mother sued the folk debit and credit210Million yuan, after the court issued by the mediation of debt and the establishment of voluntary assumption of very high interest rates; third mediation is the man in Hunan with a friend Zhu sued the man Lee borrowing89Million yuan RMB, the same court after the two sides to reach a mediation agreement, Lee would like to return and high interest payments; third mediation is the man's mother as the legal representative of the actual control of the company sued the man Lee loan disputes up to RMB240Million yuan RMB, the court is also mediation. Miss Jiang and Li in the marital relationship continues to exist while buy multiple properties, the value of total up to1000Million yuan, but the face of the three mediation has identified the conjugal debt up to nearly600Million yuan of debt, the joint property of husband and wife badly shrunk. Miss Jiang started the difficult road to adults, went to the Shanghai first intermediate people's court and make a mediation court for retrial starting three mediation, but were all negative response, Miss Jiang to despair.

The amendments, the reference and the experience of international legislation, the establishment of the important system of the withdraw of the third person, provides an effective remedy for ginger ladies, points out a bright road. According to the new law stipulates, divorce cases due to a party and the third party colluding malicious litigation against the other party's legitimate rights and interests, as the party violated simultaneously meet the following three conditions, can bring the withdraw of the third person:

1Because, not attributable to the fault of their own reasons did not participate in the proceedings. What is called "not attributable to the fault of their own reasons"? That they do not know or not know malicious litigation, or although know but because of earthquakes and other force majeure cannot take part in the proceedings. If in a divorce case party knows one spouse from outsider complicity in litigation, was able to participate in the litigation does not attend, let these results occurred, then it will lose the ones litigate rights.

2There is evidence to prove that the error, need in the divorce case of one of the spouses and outsider collusion action legally effective judgment, civil mediation book part or all of the content, and the damage of their own civil rights.

3, aggrieved party filed a third revocation litigation period is six months, self knows or should know that his civil rights being infringed date, this period is the period expired, will lose this right, and not because of any reasons and suspension, termination or extension.

The jurisdiction court of the withdraw of the third person, the people's court verdicts, is the original ruling or civil mediation book have been made. The people's court to initiate proceedings, that revocation litigation claim, make a new judgment or ruling, change or cancel the judgment, ruling or civil mediation book. Identified claims can not be established, the prosecution dismissed. The parties have the right of appeal.

The new civil procedure law in the establishment of the withdraw of the third person at the same time, also provides for the false, malicious prosecution tort litigation shirking behavior of judicial process, criminal penalties, to crack down on such behavior, in order to maintain judicial justice!

Six, add the act preservation system, will effectively curb violence

The original provisions:

Article ninety-second (1) the people's court may if a party's acts or other reasons, the impossible or hard to execute the judgment of the case, according to the request of the other party, render a ruling for property preservation; the absence of such application, the people's court may rule to adopt property preservation measures when necessary.

The new provisions:

Article 100th (1) the people's court may if a party's acts or other reasons, the decision to execute or other damage caused by the case, according to the request of the other party, be a ruling, the preservation of property shall be ordered to make certain actions or forbid them to make certain behavior; the absence of such application, the people's court may rule the preservation measures when necessary.

The act preservation, is refers to the people's court for a ruling party, shall be ordered to make certain behavior, or forbid it to make certain behavior, prevent the parties are being implemented or will implement a behavior to apply to cause irreparable damage.

According to the Department of the National Women's rights data shows, domestic violence has become a prominent problem in China in the women's rights and interests, the number of complaints was the continued growth trend, complaints about a year5Million. Family violence if unchecked and constraints, will be intensified, increasing not only in quantity, degree and the means of violence has become increasingly intensified, serious violations of the victim's personal rights, affect the enthusiasm of their participation in social production activities, but also directly hindered the development and progress of society. Family violence has become a prominent social problem, but also because it will be one of the causes of female crime. According to the rights and interests of women's Federation of Jiangsu Province branch prison of Nantong women's prison1477A survey showed females do,237A female family domestic violence problems, including125The crime directly relating to domestic violence,93Long term by her husband beating, abuse;62People resist domestic violence crime of intentional homicide.

In the marriage and family cases, domestic violence against infringement, such as Canada, America law "to" prohibition system. Before the law, our country prescribed by law is still blank. But the theorists, practitioners, the judiciary was studied, extensive. The Supreme People's Court on the application of the law in China2008Years3Months preparing "involving domestic violence cases guide" (hereinafter referred to as the "guide"), based on in-depth analysis of the system in the definition of family violence, cause, characteristics, harm result type and so on, put forward to adopt "the protection order" for judicial protection for the victim, from for the protection of victims, ruled that the evidence on which the contents of the ruling, ruling, the term of protection, the execution of the ruling and refused to carry out the legal consequence in detail, has very strong operation. The "guidelines" issued, as the Supreme Court's judicial guidance, in the implementation of the pilot work of grassroots courts, courts throughout the country has accumulated rich experience in judicial practice, received a good social effect.

2008Years8Month6Day,Jiangsu province Wuxi City District People's courtIn the trial of the wife of the husband Xu Chen v. divorce dispute case,A national first "personal safety protection order",Banned from Xu, beaten, threatened Chen, the court also contact with the public security organs, draws its alert, fulfil the obligation to protect;2009Years4Month15Day, Hunan Provincial Higher People's Court issued the "on the strengthening of the protection of women victims of domestic violence judicial guidance", this is the first issued by the Provincial Higher People's Court of the relevant guidance, encourage all levels of court trial "in the province to protect personal safety rule";2010Years6In August, Shaanxi Provincial Higher People's Court issued the "development of family violence cases"Habeas corpus"The implementation rules ", determine21Basic pilot court, cutoff2011Years3Month, the province a total of4A local court issued a7Copies of personal protection order,6In the case of divorce,1Is proposed in the abuse case.

2012Years3Month7Day, the intermediate people's court and the city women's Federation of Qingdao City, formulated the "on the implementation of family violence in marriage and family cases "Injunction"Opinion. According to the regulations, family disputes, inheritance, personality right disputes and cases involving domestic violence criminal private prosecution cases four cases may apply for an injunction. "Injunction" into the prohibited acts, isolation, and pay out four aspects8Item content:1Prohibit the respondent, beaten, threatened the applicant or family members;2Applicant tracking, prohibited by the applicant, or by telephone, mail, short message, network, harassment of the applicant;3And, necessary conditions, order the respondent lived temporarily moved out of the house;4Prohibit the respondent, frequented places in the distance place, school, the work unit or other applicants200Meter range of activities;5Prohibition of the respondent, the underage victim child custody or visitation rights;6The respondent, prohibited to dispose of the housing and property of other larger value;7Order the respondent to pay the applicant, and raising a family members living expenses, medical expenses and other necessary expenses;8, to protect the applicant and family members must other remedy measures. Also stipulates, "ban" can be divided into emergency ban and long forbidden, emergency ban is valid for15Day, long forbidden is valid for3Months to6Months, the special circumstances of the case, approved by the longest period can be extended to the decision on the date of entry into force.

The National People's Congress to amend the civil procedure law, fully summed up in the courts throughout the country to pilot the "judicial experience basis of habeas corpus", in parallel with the property preservation system, established the act preservation system in civil litigation, the vulnerable marriage family case on one side of the protection provided legal basis. Combined with the concrete practice of divorce cases, a party may apply for the act preservation conditions mainly includes two aspects: one is the one party against the implementation of domestic violence, the victim may apply to the court for violence, a party to immediately stop the infringing act, prohibit violence, in order to prevent the minority party more hurt; second, is for both sides to strive for the underage child custody, the custody case, one spouse may take the transfer, conceal the underage children, thus affecting the court support belonging to the children, need to immediately stop this behavior, the other party may apply to the court for preservation of act, prohibit parties to transfer, conceal the underage children's behavior.

The act preservation law enforcement force, people may have different ideas or questions, the court ruled that the preservation of behavior, the respondent did not stop the violence tort behavior, or will the children were hiding how to do? According to the law, because the preservation upon immediately and execution, refuse to perform, a court can take measures such as fines, detention, if the circumstances are serious will be suspectedRefusing to implement the judgment against the crime, shall be investigated for criminal responsibility.At the same time, the judge can completely according to circumstances, is not conducive to the applicant the verdict in the final judgment of divorce.

According to the newly revised the law stipulates, the party bringing the act preservation time should be in the course of legal proceedings, the case had been filed into the trial stage. In an emergency situation, the need for behavior preservation in litigation before, because there is no legal basis not before the lawsuit behavior preservation application; the court decided to take preservation measures, the applicant must provide guarantee to the court, if the court request to provide the guarantee, the applicant is not provided, the court rejected the application for preservation; from the legal perspective, there are two kind of act preservation starting mode, one is the application of a party concerned, the court ruled, two are parties do not apply, the court may take the initiative to take measures for the preservation of authority.

Seven, the appraiser mechanism, expert witness inquiry was magical

The original provisions:

Article seventy-secondThe people's court for specific problems that need identification, shall be made by the legal corroboratory department; there is no legal corroboratory department, identified by the appraisal department designated by the people's court.
Identification of department and its designated expert witness is entitled to know the case materials necessary for the evaluation, when necessary, ask the parties, witnesses.
An authentication department and the expert witness shall submit a written expert conclusion, signature in the identification of a book or a stamp. Authenticators, shall be made by appraiser place unit seal, to prove his identity.

The new provisions:

Article Seventy-eighth the parties disagree or the people's court that his testimony necessary for the appraisal, the appraiser shall appear in the court. After the people's court shall notify, identification of refusing to testify in court, expert opinion may not be used as the basis for ascertaining the facts; pay appraisal cost of the parties may request the return of appraisal cost.

Article seventy-ninth (the Department of new added provisions) the parties may apply to the people's court notice with specialized knowledge appearing in court, comments made on identification of the expert opinion or professional problems.

In the civil procedure law before the amendment, aiming at the identification problem of system changes. The law has only one provision (seventy-second), the new revision of the legal provisions, from the distribution point of view, to decompose the original provisions, the provisions three articles, namely the new civil procedure law seventy-sixth, seventy-seven, seventy-eight, and added a new one (seventy-ninth), Hara Jowen issued on the identification the report called "conclusion", the new provisions for "expert opinion", the Civil Procedure Law of evidence classification is the identification documents listed as "expert opinion", this change, reflected the face of change to identification documents issued by nature from the legislative level. Because the identification of "conclusion", not only is that the identification of opinion, does not represent the conclusion. Appraisal conclusion is confirmed that the court must, as a basis for decision; and the identification of opinion by the court finds that the facts are used as reference, this change is more scientific.

In the marriage and family cases, requires specialized agencies to identify generally. If the divorce case, household division case involves assessment of property value determination, corporate value evaluation and financial audit, may involve paternity cases, claims and liabilities involved in handwriting identification of child custody cases, some cases may involve behavior ability appraisal and so on. In the past, upon application by a party, the court commissioned the appraiser qualification identification. Because of the lack of a party or agent for the identification of relates to the field of expertise, for a written report identification issued, in general it is difficult to express deep examination opinions. Sometimes requires expert witnesses, expert witnesses rarely also accept testimony.

The new law of expert witness system is perfect, formed the restriction mechanism. In the two case, the appraiser shall appear in court: one is the parties disagree on expert opinion, the appraiser shall appear in court to receive the inquiries of the parties concerned and ask questions, answer the controversial issues; second is the people's court that authenticators shall appear in court, the appraiser shall appear in court, asked to accept the. If the identification of people refused to appear in court as a witness, will produce two legal consequences: one is the issued identification opinions cannot be identified as the relevant facts, the proof losing right; the two is the identification of charged and appraisal fees in payment request the return of the shall return.

2012The first half of the year, the author has been acting together after the divorce property dispute case, the case has in Shanghai Pudong New Area people's court and the Shanghai first intermediate people's Court of second instance, experienced a trial, two trial. In the first instance procedure, value appraisal involves both parties under the name of a set of housing, after the assessment report, the court organization both parties to a confrontation, then the other party the appraisal report has three main problems: one is evaluation standard houses built in the last century seven, eighty time, housing building structure design is unreasonable, will affect the housing market; two is the housing land use right70Years is about to expire, will affect the housing market; three is the identification certificate identification of staff has expired, no identification of qualification, the appraisal report issued can not be used as evidence. Our opinions and the trial court agreed, that make the appraisal report appraisal institution, is designated by the Shanghai Higher People's court in accordance with the computer matching way, identification mechanism is also made the appraisal conclusion -- now should be called expert opinion in accordance with the law, the identification of qualification on the appraisal of staff problems, because there are three the identification of the staff, the identification certificate one expired less impact assessment conclusion identification report on housing market. In the second instance, the other to request the appraiser testifies to accept testimony interrogation, but identification mechanism only to trial court issued a written explanation, the second instance court cognizance appraisal report to make housing market conclusion accord with the objective reality, that a judgment according to the report made judgment is correct, so rejected their appeal. If the case for the new civil procedure law after the implementation of today, in the identification of people not to appear in court cases, the evaluation report for the proof losing right and cannot be used as evidence.

We are a large number of cases in the process of agent, more and more cases, need the help of expert assistant role. Because of different professional appraisal for identification were issued, due to differences in the restriction of the professional field, any person including judges and lawyers, can not be all proficient in. For example, medicine, biology report need professional knowledge by physicians, pharmacists, financial accounting, finance report by certified public accountants, financial analysts opinion; construction, design documents need construction engineer, designer professional interpretation and so on, with the aid of these professional opinion, have a clear cognition judges and lawyers to professional issues, it is reasonable to judge from a legal point of view, the objective that the relevant facts. Therefore, the new civil procedure law provisions, the parties may apply to have specialized knowledge as the expert assistant to appear in court, a specialized knowledge of cases related to trial in court and provide instructions, special problems and identification of the identification of the details to appraisers for questioning, published in professional opinions on the identification process and conclusion, for a court the reference, in order to ensure a fair and reasonable decision.

For example,2011We proxy together company equity division of cases, that involves the recognition of the defendant's corporate financial accounting audit and equity value. In the audit process, because the defendant as the controlling shareholder, has resisted not cooperate with the audit work, does not provide the financial account books and vouchers to Auditing Company, Auditing Company can only be based on the available data and open trade and industry annual report work. The audit report came out, the evidence material in the report on the grounds of incomplete defense, although evidence from the point of the court may order the defendant bear the adverse consequences, but we believe that this report reflects only a portion of the profits of the company, the name of the value of equity is much more than that in the report, at the same time suffer from no definitive explanation from the perspective of accounting professional. So, we communicate with the presiding judge, the application by the experts of the audit report of financial accounting professional advice, the presiding judge in order to allow the defendant to take sentence, agreed to our request. The judge recognized, we invited a Chinese CPA (he also of Great BritainACCAMembership), through to the litigation company2007Years and2008Two the balance sheet for the comparative analysis the following three points:

1,2007At the end of the accounts receivable1600Million received789.5Million, and also borrowing333Million, total capital increase1122.5Million yuan; these funds to pay profits payable181.6Vanward undistributed profits in800Million, and the payment of accounts payable91.9Million, the total capital for1073.5Million, the remaining49Million yuan showed increase of monetary capital;

2,2008Years of accounts receivable to reduce110.1Million yuan, other payables increase653.2Million yuan, increase in accounts payable33.4Million yuan, the capital increase796.7Million yuan; for the payment of fixed assets increase199.1Million yuan, pay profits530.9Million yuan, payment surplus reserves121.5Million yuan, total851.6Million yuan, balance54.9Million yuan, is part of the money capital reduction, one part is accumulated depreciation effect;

3,2007At the end of the year to2008At the end of the year, company a massive increase in other payables, can be regarded as a non normal manufacturing Liabilities Total986.2Million; in addition, should total accounts receivable collection899.6Million yuan, two of the total1885.8Million yuan. Company malicious increases in liabilities used to pay profits, the existence of illegal operation.

Digital the boring, for non professionals, may not be able to understand, but the defendant I fully understand the stories behind the numbers. Therefore, after the professional opinions indicate to the defendant in the trial judge, the defendant had to make concessions, finally able to mediation.

Eight, small litigation rate cut,A courtEfficient

New provisions:

Article 157th In trying a simple civil case facts are clear, the relationship between the rights and obligations are clear, the controversy is the basic people's court and the tribunals dispatched by it, the provisions of this chapter shall apply.
The trial of civil cases prescribed in the preceding paragraph at the basic people's court and the tribunals dispatched by it, the parties may agree to apply summary procedure.

In trying a simple civil case in accordance with the law 157th prescribed in the first paragraph of article 162nd the basic people's court and the tribunals dispatched by it, subject to the provinces, autonomous regions, municipalities directly under the central government on the average annual salary of urban employees30%The following, execute a court.

Before the revision of the civil procedure law in this time, the Supreme People's court in2011Years3Month17Day, issued "on the part of the basic people's courts carry out small quick judging pilot guidance", the deployment in the country90A basic people's court to carry out small quick judging the pilot work,2011Years5Month, the pilot court began to apply small quick judicial trial procedure, and actively explore the scientific and reasonable configuration of judicial resources, the accumulation of practical experience as the civil law procedure modification.

The revised law stipulates, all cases were unified trial court system, the trial period long, a simple case can sometimes be delayed for a year or more, a waste of judicial resources, the other party has increased litigation economic cost and time cost of the parties. The amendment of civil procedure law, in summing up the experience, model overseas legislation foundation, added a small amount, summary procedure applies to the trial of cases of a "system of one trial", reduce v.tired, fairness and efficiency. Marriage and family cases, recourse maintenance, alimony, maintenance and other standard volume is small, the identity relation clear rights and obligations, in simple cases, practical procedure speed tailoring, more convenient, fast, economical way to solve disputes.

The high court of Shanghai in the new revision of the civil procedure law as legal basis, combined with the pilot experience Shanghai has carried out the small rate cut and trial practice, carry out small trial work rules for the implementation of the "make before the new civil procedure law (Trial ImplementationLine) "(hereinafter referred to as the" implementation rules "). First has been clear about the scope of small claims procedure, determine a general standard. The parties prosecute the facts are clear, the rights and obligations clear, less controversial and disputed object amount to less than the small cases amount standards that published single money payment claim civil cases, appropriate legal. The high court of Shanghai according to the Statistics Department released2011Employment in Shanghai City, the average annual income of published data2013Years1Month1To6Month30A small case amount standard day for15000Yuan. At the same time, "implementation rules" clearly, involving the identity, right, a party One's whereabouts is a mystery. need announcement service etc.9Cases, excluding the application procedure. "Small cases" rules for the implementation of the trial mode, which should be in receipt of materials within three days from the date of filing, the principle of the last months and a tribunal concluded, in court, the court serve legal documents. During the trial of such cases, should pay more attention to the essence, relatively flexible approach in form, to highlight its convenient, convenient advantages and characteristics.

　2013Years1Month15Day, Beijing's first small quick judicial trial final judgment, the court was born in Haidian. By default1Million yuan loan does not alsoAfter the ten thousand yuan a year and a half in arrearsSued to the court, and Miss Liu, two trips to the court,20Minutes of the hearing,10Minutes to effective judgment. Is this year1Month1The new revised "Civil Procedure Law" after the official implementation of "small quick judicial benefit first". According to the trial judge Chen Jianbo introduction, Beijing current standards or2011The average annual wage employment in urban units annually, the30%That is22750.2Yuan, the figure below target, it is small quick judging procedure. In addition, small quick judging cases also should have two conditions: the facts are clear, the rights and obligations clear, less controversial, can apply summary procedure; belongs to a single payment litigation cases. In Beijing3In such cases is not applicable to small quick judging: relates to intellectual property cases, involving personal relationship disputes, property rights disputes, as well as the case additional party or lodges a counterclaim.

Nine, the foreign service shrinkage time, improve efficiency by V. tired

The new law provisions:

Article 267th The people's court litigation documents on has no domicile in the people's Republic of China within the party, can adopt the following methods:

......

(six) the law of the country where the addressee permits service by post, may be served by post mail, since the date of three months, the receipt of no return, but according to various circumstances justify the assumption that has been delivered, the expiration of the period of service shall be deemed the date;

(seven) by fax, email to confirm the person to be served on all the way;

(eight) cannot be served by the above methods, served notice, since the date of the announcement over three months, the document shall be deemed to.

    In judicial practice, the foreign-related cases without time limit requirements, one of the main reasons is the delivery time of long and complex procedure. I was now in the hands of foreign inheritance cases handled, this year10In the case, the time trial in the next year6In August, at present also worry that delivered not to, may want to notice, if according to law before the amendment, the announcement time6Months, after hearing and decision, also need to be served by public announcement, need6Months. If the appeal of words, but also a round of second instance procedure, so down, this case is not a year and a half to two years will not have results, for the parties concerned, this time and efficiency is a torment. Fortunately, the amendment of civil procedure, the foreign service time and the way of the new reform, mail delivery and service by public notice time uniform provisions for three months (according to the relevant provisions, the Supreme People's court for the accused in China, Hong Kong and Macao, notice served time for three months already implemented), and may you can also take email, fax is sent, time will be greatly reduced.

Ten, the appeal period reduced to six months, long the complaint without basis

The new law provisions:

The 205th parties to apply for a retrial, the judgment, ruling shall take legal effect within six months are presented; the 200th article of this law the first, third, twelfth, thirteenth regulations, self aware or should be made within six months to know the day.

209th in one of the following cases, the parties may apply to the people's Procuratorate procuratorial suggestions or protest:

(a) people's court rejected the application for retrial;

(two) the people's court fails to apply for retrial ruling;

(three) if the second judgment, ruling is obviously wrong.

The people's Procuratorate shall conduct examination within three months of the request of the parties concerned, made or not present procuratorial suggestions or protest decision. The parties may not apply again to the people's Procuratorate procuratorial suggestions or protest.

According to the above provisions, the parties to a legally effective judgment, ruling is still not satisfied, need to put in the judgment, ruling shall apply for retrial within six months; for the following four cases and apply for a retrial, self aware or should be within six months from the date of application: (to know1) found new evidence, to reverse the original judgment, ruling (2The original judgment, ruling) found the main evidence for ascertaining the facts is false (3According to legal documents) to make the original decision, ruled that the revocation or modification (4) the trial of the case with corruption and bribery, play favouritism and commit irregularities, perverted the law behavior.

In order to solve the multi complaint, the new civil procedure law to apply to the court to apply for retrial and procuratorate protest were coordinated. The parties to a legally effective judgment, ruling or letter of mediation, should first apply to the people's court for retrial, in the three case can apply to procuratorate protest: one is the court rejected the application for retrial, the two is the court fails to make a decision, the three is already a retrial once and make effective judgment, ruling significant errors. At the same time, the provisions in order to solve the problem of repeatedly pestered cases, according to the law, the procuratorate has the party's application for a decision, no longer repeated applications.

New regulations on the application for retrial, marriage parties also need to pay attention, otherwise, will lose the right to limit.