The higher people's Court of Beijing

On the issuance of "on the civil trial work implementation"The Civil Procedure Law"Reference "

Notice of such documents

(Beijing high method (2012) No. 413)

 

 

First, the second intermediate people's court, the Beijing Railway Transportation Intermediate court;

District, county people's court, Beijing railway transportation court:

The Beijing Municipal Higher People's court "on the civil trial work to implement the" Civil Procedure Law > reference "," on the trial of cases of people's mediation agreement judicial confirmation opinions on some issues concerning the application of "," small claims procedure in the trial of civil cases of the opinions on Several Issues (for Trial Implementation) ", has been in 2012 in December 24th from the city the high court judge committee first (total 315th) through the discussion meeting, is hereby issued, please conscientiously implement. Have any problem during the implementation, timely report at the high court.

 

Notice is hereby given.

December 26, 2012

 

 

Annex 1:

 

 

 

The higher people's Court of Beijing

On the civil trial work to implement the "Civil Procedure Law" reference

 

 In August 31, 2012, the meeting of the Standing Committee of the Eleventh National People's Congress amended the "PRC Civil Procedure Law" decision. According to the decision, the revised "Civil Procedure Law" will come into force on January 1, 2013. The repair method to further improve the socialist legal system, strengthen and improve the civil trial work, guarantee the people's legitimate rights and interests of great significance. To implement the "Civil Procedure Law" comprehensive and accurate, to ensure the realization of legislative intentions, to ensure the smooth conduct of civil trial work, now in the civil trial work to implement the "Civil Procedure Law" put forward the following opinions for the court, civil judicial departments.

 

One, general requirements

The revised "Civil Procedure Law" involves a number of provisions, from basic principles to specific procedures are greatly changed, and the new public interest litigation, small claims procedure and many other procedures. These changes bring great influence on civil trial work, mainly displays in: the law content, new system, but the implementation of the preparation time is short; for some new and significant modifications to the people's court trial system, lack of relevant trial experience; accurate implementation of law is a long-term task, and with the the implementation of the new law, more and more new problems will be gradually exposed. To this end, the city court to do:

1, attach great importance to the implementation of the work. One is to take various measures to strengthen the training, to fully grasp the new content, accurately grasp the spirit of the legislation, to implement the new law to lay a solid foundation for good; two is to strengthen the study, seriously study the law on civil trial work influence and challenge, do know the score, save; three is to plan measures in advance, reasonable allocation trial of strength, the preparatory work to do in front.

 

2, actively and steadily implement the new law. To grasp three principles, one is the comprehensive principle. The "Civil Procedure Law" revision is a comprehensive revision, both to protect the right of litigants, also has the people's court for trial implementation specification program content, and strengthen legal supervision of the trial and enforcement work content. The majority of civil court judge, should grasp the guiding ideology and the amendment of the "Civil Procedure Law", a deep understanding of each new system, the new regulations, implementation of the revised "civil procedure law". Two is the principle of distinction. For the new litigation system and modify the content, to distinguish between different situations in practice, the principle and a good grasp of applicable: to promote civil action smoothly, is conducive to the parties right of action, and have the execution conditions of content, to resolutely carry out, to safeguard the judicial authority, improve judicial public faith; for the newly added litigation system and modify the important system, the need for further refinement procedure, defining the applicable standards, according to the prudent, pilot, gradually pushed the idea, continue to accumulate experience, to properly apply; to relate to other departments work duties, to strengthen pre communication, improve the working mechanism, promote smooth, common the implementation of. Three is the overall principle. "Civil Procedure Law" amendment to registration, trial, appeal, retrial and execution of each system, each link involving case, also involved in the civil trial court room and filing, trial supervision, the execution and other departments, so to coordination, do a good job with the relevant judicial authorities.

 

3, strengthen investigation and study. One is to discover and summarize the problems in the work, strengthen the collection and collation; two is to strengthen the report, the major problems arising in applicable law, to strengthen communication, second, the high court for timely when necessary, avoid the pursuit of "sensational effect"; three is to carry out the investigation the work of the high court according to law, the relevant research content of the work entrusted to the court, the court to do research work on applicable law.

 

Two, about the honest credit principle and the false action

For 4, the honest credit principle (article first paragraph thirteenth). Actively guide the parties shall exercise their litigation rights and perform the litigation obligations, the maintenance of normal litigation order; to strengthen the duty to tell the truth, promoting litigation obligation to inform, the principle of honesty and credit requirements and relevant legal consequences, to point out and correct the parties violate the principle of good faith lawsuit behavior; the principle of honesty and credit should be generally by means of specific provisions to implement in accordance with the relevant provisions, determine the legal consequences of violating the principle of honesty and credit, not directly based on the principle of honesty and credit related action.

 

5, grasp the standard collusive false action (112nd). False action is a serious violation of the principle of honesty and credit behavior. Must first be malicious collusion between the parties, the two is the litigation or mediation, three is a must to infringe upon the legitimate rights and interests.

 

The use of 6, fine (115th). "Civil Procedure Law" greatly increased to prevent acts in civil litigation is the amount of the fine, should be considered in nature, interfere with the civil behavior of the degree of subjective fault, behavioral consequences, the person penalized economic capacity and sanctions, reasonably determine the amount of the fine, do the amount of the fine to adapt, and be punished behavior to avoid the lopsided the prudent use; for large fines, strict examination and approval procedures.

 

Three, about the small claims procedure (162ndA)

 

Small claims procedure is a new procedure. According to preliminary statistics, applicable to small claims procedure cases (limited to money v.) is expected to account for about 1/3 of all cases of first instance, the small claims procedure will have a significant impact on the city court civil trial pattern.

 

7, the overall principle. Appropriate legal procedures to try civil cases should follow a smooth transition, step-by-step principle. The small case for summary trial, pay attention to safeguard the litigation rights of the parties, ensuring the quality of trial cases, based on the accumulation of judicial experience, gradually simplified procedure, system function of small claims procedure.

 

8, applicable object. Applicable object of small claims procedure is the relationship between the facts are clear, the rights and obligations are clear, less controversial civil cases, subject to the city last year's annual average wage of employees in thirty percent following single payment of civil cases. The identity relationship disputes, property rights disputes cases and cases additional party or to file a counterclaim, temporarily not applicable to small claims procedure.

 

9, acceptance criteria. Started in January 1, 2013, to the city staff in urban units employment 2012 year average annual salary amount before the announcement, according to published the town unit 2011 the average annual salary of urban employees amount reduced procedure suitable case amount. This city urban units employment 2012 year average annual salary after the announcement of the amount, according to the 2012 annual standard calculation. The specific change time notified by the high court.

 

10, strengthen the interpretation work. To strengthen the party's interpretation work, with small litigation related matters notice, inform the parties to the small claims procedure for mode of application conditions, the trial organization, the trial mode, trial period, way of judge, litigation fees, apply for retrial rights and other related procedural arrangement. The plaintiff shall inform in the building stage, the defendant shall inform the indictment in service.

 

11, strict program transformation. Small claims procedure cases in trial found that do not meet the conditions of the small claims procedure, or the change no longer meets the requirements for small claims procedure, can according to the conversion process, it should be strict examination and approval procedures, to avoid the random factors such as the small claims procedure for case conversion program.

 

12, job requirements. One is to ensure the quality of the trial. Small claims procedure the case to a court of second instance trial level, the lack of supervision, the quality of the trial and the trial appeal to service put forward higher requirements to the work. Therefore, to strengthen the case quality management, improve the quality of the trial of cases of small claims procedure; to avoid a taste for fast tendency, in the early application of small claims procedure, or to highlight the quality of trial. Two is to strengthen the mediation work. To avoid a court may bring "a sentence with", not willing to spend the strength to do the mediation work tendency, should adhere to the mediation priority, the combination of mediation and judgment principle, the pursuit of the node of the effect, prevent the case to a higher court through aggregation procedure for trial supervision. Three is a reasonable allocation of trial of strength. The hospital should according to the city court accepts the case of small claims procedure standard, which we may accept a case number, make corresponding adjustment according to the trial of strength. In principle the specified relative fixed judges to hear small claims procedure cases, conditional can set up special judicial institutions. The intermediate court to appeal which number decreases, and make relevant adjustment.

 

　Four, about the public welfare lawsuit procedure (article55A)

 

13, the overall train of thought. Public interest litigation cases involving a wide range, high degree of social concern, difficult to judge, but the law is relatively simple. Therefore, the general idea is the public interest litigation system is: not only can moderate development, but also in an orderly manner, according to the legislative limit scope of the case, define the scope of the plaintiff, foretaste of go ahead of the rest, legislative ideas step by step, strictly grasp.

 

14, strictly control the scope of public interest litigation. Is currently limited to the pollution of the environment law clearly stipulates the rights and interests of consumers and damage many two cases, other cases shall not be accepted in principle, be revised the relevant laws are defined, or a combination of judicial practice in the future, then gradually relaxed.

 

15, strictly control the scope of plaintiff in public interest litigation. At present, only the legal authority, the law does not clearly defined authority filed public interest litigation, will not be accepted. As for the relevant organizations, there should be strictly controlled, unless the law stipulates tissue, what organization can be filed public interest litigation, to grasp the school uniform, do not easily let go.

 

16, public interest litigation should be public loss case against the social and public interests. If the victim is related legal person or other entity unit shall be filed, as a common civil case acceptance, not in accordance with the public interest litigation cases.

 

17, public interest litigation procedure should be based on the existing process based. In addition to the statutory prosecution is not affected by the "Civil Procedure Law" 119th general prosecute provisions "has a direct interest in the case" limit, as far as possible should be carried out in accordance with the "general provisions of the civil procedure law". In addition, should also pay attention to according to the "Civil Procedure Law" in article 121st of the complaint, provide preliminary evidence to sue environmental pollution or infringe upon the legitimate rights and interests of numerous consumer infringement behavior and its harm to the public interests of the society, and explain the rationality of its lawsuit request. Further research about the jurisdiction, the specification, litigation costs and the referee and so on, and in practice to explore gradually improve.

 

Five, about the jurisdiction

 

18, expand the jurisdiction by agreement (thirty-fourth). The new law will range of agreement jurisdiction applicable cases expanded from the contract dispute to contracts or other disputes over property rights and interests, will expand the scope of the agreement under the jurisdiction of the court at the domicile of the defendant, the performance of the contract, the contract is signed, the plaintiff's domicile, the subject matter is located, the people's court practice sites and controversy. Note: one is in the case of type must be a contract or other property rights lawsuit, to other civil relationship, such as civil disputes brought by the personal relationship, shall not apply to the agreement jurisdiction; two is to "have actual connections with the dispute, the place" to strictly grasp; three is the agreement jurisdiction only applies to the trial of civil cases, it shall not violate the provisions of jurisdiction.

 

19, jurisdiction over the transfer of (thirty-eighth). In order to solve the people's court having jurisdiction due to special reasons cannot or should not exercise jurisdiction problem, "Civil Procedure Law" to determine the jurisdiction transfer system. From the application case, under the jurisdiction of the "necessary" restrictions, mainly considering the universality and complexity of civil cases, should be strictly restricted jurisdiction. From the jurisdiction of the program, increase the approval procedures to the superior court, shall strictly implement the.

 

Applicable to 20, under the jurisdiction of the (127th). Litigation jurisdiction applicable mainly to solve three problems: one is to extend the jurisdiction of foreign-related cases in all cases. For the plaintiff no jurisdiction over a suit in a people's court, the defendant raises no objection to the jurisdiction and responding to reply in defense period, as the appeal by the people's court has jurisdiction, but should pay attention to not violate jurisdiction; two is the defendant in a period is put forward to reply, and also put forward the objection to jurisdiction, it should be that the defendant disputed the provisions on jurisdiction, no longer apply litigation jurisdiction; three is responding to the jurisdiction of the court should be limited to "the domicile of the defendant, the performance of the contract, the contract is signed, the plaintiff's domicile, the subject matter is located, the people's court practice sites and controversy".

 

Six, about the participants in the proceedings

 

21, according to the notice and an additional third people (fifty-sixth and first, paragraph 2). In the case, third people take the initiative to apply to participate in the litigation, review by the court in accordance with the law, or the court may be found in the third party with independent claim or the third party without independent claim, to timely action fact written notification to the third person, and inform them to participate in the litigation and legal consequences of litigation may not participate in the to produce, to the third people know the procedure and decide whether to participate in the proceedings. Third people not to participate in the proceedings, the people's court shall complete review based on evidence, considering the case's decision, to prevent the withdraw of the third person action.

 

22, litigation agent (fifty-eighth). The agent ad litem review pay attention to the following problems: one is the change of an agent ad litem, citizens agent only close relative of a party or the staff, the community, units and other relevant social organizations recommend citizens; two is the litigation representative review on active principle of review, do not meet the "civil procedure law" fifty-eighth the provisions of an agent ad litem, shall inform the entrusting party to replace the agent ad litem; three is the scope of the relatives, the "opinions of the Supreme People's Court on some issues for the implementation of the people's Republic of China Law < > (Trial)" the provisions of article tenth shall prevail, i.e. spouses, parents, children, brothers and sisters, grandparents, grandparents, grandchildren, Sun Zinv. None of the above close relatives or although there are no legal capacity, other relatives can be raised, and the maintenance of relations serves as an agent ad litem. Four is the right to recommend an agent ad litem in city community, refers to the residents' committee, villagers' committee in the countryside means.

 

Seven, on the evidence

 

The use of 23, electronic data evidence (sixty-third). Electronic data is the repair method of a new type of independent evidence to determine the. Electronic data evidence and traditional evidence difference is bigger, the law on electronic data evidence does not make specific provisions, judicial practice is also a lack of adequate trial experience. For electronic data evidence examination and judgment,The key is to solve the recognition of electronic data elements and electronic data completeness of ascertainment, specific judging rules also need to be further explored in the trial practice.

 

24, determine the term of adducing evidence (sixty-fifth). From the judicial practice before, by the involved parties to determine the feasibility of smaller proof deadline, according to the revised "Civil Procedure Law", the time limit for adducing evidence shall be made by the people's court according to the ability of proof burden and the actual situation of the parties, as well as the specific circumstances to determine the trial in accordance with the terms of reference, can also be determined by the parties concerned.

 

25, to extend the term of adducing evidence (sixty-fifth). The parties to provide evidence is difficult in the certain period, apply to the people's court to extend the time limit, the people's court shall, after examination appropriate extension.

 

26, if the burden of the consequences (sixty-fifth). For the overdue proof consequences hold, according to the specific circumstances of the parties to submit evidence, from the reason, the degree of fault, the evidence to grasp in the facts of the case in the position and role, to distinguish between different circumstances apply to accept the evidence but shall not be penalized, accept the evidence but be reprimanded, fined and the evidence is not the adoption of such measures, the overdue inadmissible evidence for litigation parties, the ability of China's national conditions and the current situation based on careful, strict grasp, mainly should apply to party for extreme malicious, deliberately delayed submission of evidence of.

 

27, collect evidence material receipt (sixty-sixth). The people's court to collect evidence submitted by the parties concerned should strengthen the evidence material to check, suggesting that the corresponding copies submitted by the party according to the trial, and regulate the receipt behavior, there should be evidence name, pages, number of copies, the original or photocopy and receive time and so on in receipts, and sealed by the agency staff signature or. The receipt shall be submitted in two copies, in to the parties at the same time, the record should also be backup.

 

28, the court in the identification before the review (seventy-sixth). The parties on specific issues to the people's court for identification, or the people's court in accordance with the terms of reference in time, the people's court shall first to delegate identification is necessary for review, and then on the entrusted authentication matter whether is accurate and clear, review the authenticity identification materials are available and the identification of material, to ensure the certification work smoothly. Entrust appraisal organ identification, should the legal consequences clearly inform the appraiser liability and breach of the obligations of the.

 

29, there are specialized knowledge appearing in court (seventy-ninth). According to the "Civil Procedure Law", the parties may apply to the people's court notice with specialized knowledge appearing in court, make comments on the identification of human made expert opinion or professional problems. These Provisions shall apply should note the following problem: one is the parties may apply to have specialized knowledge appearing in court, to the people's court for review after the decision; two is a special knowledge of the court, the relevant rights and obligations in accordance with the "Regulations" the Supreme People's Court on evidence in civil proceedings sixty-first implementation; three is a special knowledge to appear in court the suggestions in the expert opinion, the people's court shall be adopted, situations or supplementary appraisal, re identification of expert opinion, not directly to the views of people with specialized knowledge as the decision basis.

 

Eight, about the service

 

30, the correct application of "the camera, video recording the process of service" lien service (eighty-sixth). Retention of service is the premise of the recipient or his adult relatives refused to accept the litigation documents, because the reasons for non delivery is not successful, such as multiple service did not see the recipient, shall not use will need to serve documents posted directly to the recipient of the service apartment and video camera, such as retention of service. Where the addressee adult relatives for persons with no capacity, limited capacity, not lien service.

 

31, careful application of electronic service (eighty-seventh). Application of electronic delivery should pay attention to the following problems: one is to adhere to the voluntary principle. Application of electronic delivery shall be subjected to agree, in principle should obtain the written consent of the person to be served by the recipient, and the way people written confirmation of electronic delivery as well as specific websites, email, phone number and other electronic delivery path is required; two is the electronic service delivery verdict, ruling only book beyond and mediation litigation documents; three is a clear party received mode of delivery and time confirmation documents, the parties denied receiving the service of legal documents, shall examine the reasons and make the corresponding treatment. The four is to actively explore the electronic service in question, such as via email service, whether the court to set up a unified service mailbox, electronic signature, and after service of file problem. Five is the foreign case applicable electronic service to strengthen the delivery of documents confidential review of issues.

 

During the announcement 32, foreign-related cases mail, delivery (267th sixth, 8). According to the new law, foreign-related cases, during the post announcement was from six months to three months.

 

Nine, about the preservation

 

33, act preservation (100th). Act preservation and property preservation has similarities, but also have some differences, in suitable conditions hold not only refer to the legal provisions on property preservation, but also can refer to the relevant provisions on the injunction before the judicial interpretation, applicable conditions in the trial practice and gradually explore the act preservation.

 

Ten, about the pretrial preparation

 

34, the procedure to convert the supervising procedure (133rd first). In accordance with the "provisions of the civil procedure law", the people's court may decide the dispute procedure of first instance cases into the supervising procedure, taking into account the obligor may lead to the order of payment can not effect and so on, the people's court shall inform the parties related risk, and the parties agreed to.

 

Eleven, a simple procedure

 

35, agree to apply summary procedure (article second paragraph 157th). Apply the ordinary procedure case, where the parties agree to apply summary procedure shall be submitted by the party, written confirmation. The dispute between the two sides generally agreed to apply summary procedure, should still ordered the parties to the lawsuit filed. Remanded the case, in accordance with the procedure of first instance trial of retrial cases, before the judicial interpretation made separately, do not allow the parties apply summary procedure.

 

36, the simple procedure to ordinary procedure (163rd). The people's court in the trial process, found that the summary procedure is not appropriate for the case, ruled to the ordinary procedure. Should pay attention to two cases of conversion programs, one is under the authority of a court judgment, another is a party raises objection, it is necessary to convert the review decision, the court conversion. Note that in the "Regulations" the Supreme People's Court on the application of summary procedures in the trial of civil cases in court conversion program using decides the form, and the revised "Civil Procedure Law" provisions to determine the form of program transformation. Accurate understanding of the connotation of the summary procedure is not appropriate for the trial, the trial should be found with the complex relationship, the rights and obligations are not clear, ascertain the facts or the applicable law is difficult, the parties dispute, belongs to a new type of case and other factors, transformation lies in safeguarding the legitimate rights and interests of the parties, safeguard judicial justice, avoid to avoid the trial of program transformation.

 

Twelve, about the verdict

 

　　37The reason, judgment (152ndA, 154thArticle thirdParagraph). The revised "Civil Procedure Law" to increase the judgment shall state the decision and make the decision reason, that the judgment reasoning. The judge must provide the facts and applicable law for the reason, this is to ensure that the basic requirements of the judicial justice.Some of the current judgment does exist in the fact that the lack of analysis process, the evidence does not make a concrete analysis of trade-offs, certification does not explain the reason, legal discourse is too broad, cited legal provisions, not clarify the applicable legal reasons, legal analysis is not thorough, the lack of convincing, the hospital should focus on the Countermeasures of the phenomenon, improve the verdict quality, in order to make the court verdict can reflect the judicial authority, to obtain public conviction, the maximum to meet the actual needs of society. To apply summary procedure, small claims procedure to further explore the simplified case.

 

38, the document is public (156th). The disclosure of civil judgment is an important content of the open trial, is an important measure to ensure the citizen's right to know, to promote the open trial, has an important role to enhance the credibility of the court. But the disclosure of civil jurisdiction instruments of adjudicative document quality put forward higher requirements, we must further improve the level of judicial writing.

 

Thirteen, about the procedure of second instance

 

39, the second trial and the trial venue (169th). In the case of second instance for more complex, not a dispute between the two sides, the facts are not clear, or the parties have new facts and evidence, it shall hold a hearing. For not to open a court session, should be a comprehensive review of records, fully listen to the opinions of the parties concerned, verify the evidence, ascertain the facts. The second instance court, for the convenience of the parties, the convenience of people's court, improve work efficiency and protecting the interests of the parties, can be heard in the hospital according to the actual situation, also can be the case or the place of the trial court, when conditions are ripe can also remote video and other technological means to take a trial.

 

　　40, accurately grasp the rehearing condition (170thArticle firstParagraph). The new law of remand in only two cases,One is the original verdict that the basic facts are not clear, the second determine how difficult the factBack to the court of first instance, to ascertain the facts, can remand, if the instance can be found out, can also be directly to the original judgment; two is missing the parties or illegal trial by default and other serious violation of legal procedures, can be remanded. In addition to the above two kinds of circumstances, the court of second instance shall remand.

 

41, the retrial times (second, 170th). According to the law, the court of second instance shall not repeat the returned case, so we must pay attention to the following problems: one is the court of first instance to increase efforts to ascertain the facts, try to find out facts of the case after the decision, to avoid the second cause passive; two is for the returned case, the court of second instance to explain the reason and basis for detailed, three is to strengthen the on the communication between the lower court.

 

　Fourteen, the mediation agreement

 

42, confirm the object (194th). Apply for judicial confirmation of the mediation agreement, according to the "Regulations of the people's Mediation Law" in article thirty-third, according to the law, a mediation agreement may apply to the people's court for confirmation.In addition, according to the Supreme Court by the spiritIndustry mediation organization mediation agreement have the nature of civil contract agreementThe parties may apply to the people's court, confirmation, can refer to "Civil Procedure Law" article194Shall be handled.

 

43, applicable procedures (194th). The revised "Civil Procedure Law" will apply for judicial confirmation of the mediation agreement procedures in the fifteenth chapter, the special procedure section, the people's court for judicial confirmation that the mediation agreement shall apply the special procedure, no longer follow the Supreme Court judicial interpretation "by Jian Yicheng order" provisions of the trial.

 

Fifteen, on the procuratorial supervision

 

44, consciously regulate trial act. Exercise the judicial power in accordance with the law, standardize the judicial behavior, the full protection of the litigation rights of the parties. To prevent the trial in violation of legal provisions, but also to prevent the negative acts of malfeasance, failure to act as an initiator of.

 

45, attach great importance to procuratorial suggestions (third, 203rd). In accordance with the provisions of the third paragraph of "Civil Procedure Law" 203rd, illegal judicial personnel of people's Procuratorate to the procedure for trial supervision other trial procedure, have the right to put forward the proposal to the people's courts at the same level. For the procuratorial organs in the first instance, the second instance procedure of procuratorial suggestions, should attach great importance to, careful treatment, and the results will be reported to the Supreme court.

 

Sixteen, the implementation of the law of cohesion on the new and old

 

The overall principle, implementation of 46 new and old method. The revised "Civil Procedure Law" implementation has not yet concluded the first trial, second instance cases accepted, after the implementation of new cases, in accordance with the principles of the revised "Civil Procedure Law" implementation.

 

　　47The problem, an agent ad litem. The revised "Civil Procedure Law" to further standardize the litigation system, delete the "provisions of other approved by the people's court" can act as an agent ad litem, 2013Years 1On 1The day before the people's court has permission to litigation, 2013Years 1On 1Day after the procedure can still continue to acting, but returned in the second or subsequent review program cannot continue agent.

 

48, the appraiser problem. The revised "Regulations" after the implementation of the civil procedure law, the case is being heard, the court debate is not over yet, upon request of the appraiser, in principle to allow.

 

49, the proof limitation. According to the previous judicial interpretations have determined period, no change, has not yet been determined, according to the new law to determine.

 

50, the foreign service. The revised "Civil Procedure Law" implemented by mail or by public announcement period has not expired, executed in accordance with the original provisions, shall start mailing or entrust the service, according to the new law enforcement.

 

 

 

 

 

 

 

 

 

 

Annex 2:

 

 

 

The higher people's Court of Beijing

Some problems about trial that case opinion judicial mediation agreement

 

 

In order to further standardize the judicial mediation agreement confirmed cases, promote uniform enforcement standards, connected to better achieve the people's mediation and litigation, according to the "PRC Civil Procedure Law", "people's Republic of China People's Mediation Law" and other laws and the Supreme People's court related spirit, I combined the actual trial, put forward the following opinions:

 

One, the parties in the mediation organization reached under the auspices of the mediation agreement shall, within thirty days from the date of entry into force the mediation agreement, Co located at the basic level people's court for confirmation of the mediation agreement to mediation organization.

Two, the people's court mediation agreement is confirmed cases, "special procedures stipulated in Civil Procedure Law of the PRC", execute a court, tried by a single judge alone.

The people's court to confirm the mediation agreement after the application type, according to the agreement of mediation of legal relationship by the court.

Three, the people's court in the trial that the mediation agreement is found in any of the following cases, should be identified do not meet the conditions of admissibility, the court rejected the prosecution:

(a) does not belong to the scope of mediation in civil cases under the jurisdiction of the people's court or not belonging to accept applications;

(two) confirm the identity relationship;

(three) confirmed the adoptive relationship;

(four) confirmed the marital relationship;

(five) relates to the people's court for other special procedure, the procedure of public summons and bankruptcy proceedings disputes.

Four, the people's court shall request the parties to submit the following materials, and shall review: judicial confirmation request, the mediation agreement, identity certificate or business license, associated with the mediation agreement of property rights to prove the proof material, the parties to address, contact method, the parties signed the letter of commitment.

Five, the people's court shall notify the parties and the court, asking whether the parties understand the contents of the agreement and the legal consequences of entity and procedure, and from the two aspects of the mediation agreement for review. The people's court may require the parties to provide supplementary statement, evidence, based on the review of the need to explain.

Six, the people's court in the trial of cases confirmed the mediation agreement, the parties should strengthen the legal relationship authenticity examination, notify the parties shall observe the principle of good faith, not malicious collusion, through mediation to infringe upon the legitimate rights and interests.

Seven, in the people's court mediation agreement after the application is confirmed, not previously ruled, a party mediation agreement or the content of the mediation agreement shall be filed the lawsuit, the people's court shall inform the parties can choose the right procedure and special procedure to confirm that the mediation agreement or common civil, the informed, if the parties to the prosecution, the people's court shall rule to terminate the special procedure.

Eight, the people's court in the judicial confirmation process on the mediation agreement mainly examine the following contents:

(a) the mediation agreement Party qualification;

(two) the mediation agreement whether it violates the principle of voluntariness;

(three) the mediation agreement is illegal;

(four) the mediation agreement is clear;

(five) the mediation agreement is damage to the social public order and good customs.

After examination, the people's court that nine mediation agreement in accordance with the law, shall make a mediation agreement effective order confirmation.

The people's court after examination, found in any of the following circumstances, does not confirm the effect of mediation agreement, the court rejected the application:

(a) in violation of the provisions of laws, administrative regulations and mandatory;

(two) against the national interests, social public interests;

(three) against the legitimate rights and interests of the outsider;

(four) damage to the social public order and good customs;

(five) content is not clear, can not be confirmed;

(six) the other not judicial confirmation.

After examination, the people's court found ten party malicious collusion between attempted through mediation, infringes upon the lawful rights and interests, should be made to reject the application of the rule, and according to the "PRC Civil Procedure Law" the 112nd regulation, according to the seriousness of the circumstances, impose a fine of detention; constitutes a crime, shall be investigated for criminal responsibility according to law.

After examination, the people's court to reject the application of eleven order, shall specify the cause and reason in the ruling, and reject the application cases for the contents of the mediation agreement is not clear, unable to confirm the situation, the ruling is not appropriate for mediation agreement effectiveness evaluation.

The people's court shall reject the application after the ruling, according to inform the litigants have the right of way again through the mediation of the people to change the original mediation agreement or to reach a new agreement of mediation, or bring a lawsuit to the people's court.

Twelve, the people's court for confirmation to perform content of the mediation agreement, should be written or oral and inform the parties of the legal consequences without agreement on ruling, urge the parties concerned to automatically perform the mediation agreement.

Thirteen, the people's court found in the confirmation of the mediation agreement of people's mediation is not standard, the relevant timely notification to the people's mediation committee.

The fourteen parties to reach a mediation agreement, mediation by industry, the application of the mediation agreement can be confirmed, shall be handled with reference to this opinion.

Fifteen, the opinions shall be implemented as of January 1, 2013.

Have any problem during the implementation, can be reflected in a timely manner to the high court to division.

 

 

 

Annex 3:

 

 

 

The higher people's Court of Beijing

Several issues concerning the application of the small claims procedure in the trial of civil cases (for Trial Implementation)

 

 

 

 To properly apply the small claims procedure according to the trial of civil cases, the spirit of "Civil Procedure Law" and the Supreme People's court, the court of trial practice, put forward the following opinions:

Article 1 (guidelines)

Appropriate legal procedures to try civil cases should follow a smooth transition, step-by-step principle. At present, the applicable range of the program should be strictly controlled; to fully safeguard the litigation rights of the parties, to ensure the quality of trial cases.

Article second (conditions)

Appropriate legal procedure to try a case shall also meet the following conditions:

(a) the facts are clear, the rights and obligations clear, less controversial, can apply summary procedure;

(two) bid for the city urban units in the average annual salary of urban employees below thirty percent (including the number);

(three) the following cases belong to a single money v.:

1, contract disputes, disputes, the loan contract leasing contract disputes and contract disputes;

2, the identity relation clear, only exists controversy in the pays the amount, time of alimony, maintenance, alimony dispute case;

 

3, clear responsibility, liability of motor vehicle traffic accident disputes the claim of the plaintiff loss amount determination and other personal injury liability disputes;

4, for the supply of water, electricity, gas, heating contract dispute case;

5, the bank card dispute case;

6, labor relations, labor contract dispute cases controversial only payment amount and payment at the time of labor remuneration, work-related injury medical expenses, economic compensation or damages cases;

7, labor relations, labor contract dispute cases controversial only payment amount and payment time in labor compensation;

8, other payment disputes.

Article third (exception)

In accordance with the provisions of the preceding article though, but with one of the following cases, shall not be applicable to the small claims procedure:

(a) relates to personal relations disputes, property rights disputes;

(two) additional party or to file a counterclaim cases;

(three) relates to intellectual property cases.

Article fourth (standard and the adjustment amount)

Since January 1, 2013 new cases, whether the application procedure, for the subject does not exceed the amount of the annual average wage of this city town unit 2011 jobs for thirty percent ($22750.2) for the standard. The 2012 annual statistical data after the release date, since the high court to inform the implementation of a unified new standard. Every year in the future, and so on.

Before January 1, 2013, the admissibility of the case does not apply the small claims procedure.

Article fifth (calculated amount)

The case amount according to the plaintiff at all the claim amount and determine.

The plaintiff claims interest, liquidated damages, loss of money, if the determined amount, the amount included in case the amount; if it only puts forward calculation method, will be in accordance with its calculation method and placed on the amount in the case amount.

For alimony, maintenance, alimony dispute case, if the plaintiff claims of past or future identified during the period of cost calculation, case amount according to the total claims; if the plaintiff only regular payment proposed cost standard, will be in accordance with the standard calculation of a year the amount as case amount.

Article sixth (case number and Statistics)

Application of small claims procedure to try a case, case number "first" name; filing and the judges shall fill in the related items in the trial of business management system is accurate, complete, in order to facilitate data analysis.

Article seventh (told)

Application for hearing procedure cases, in addition to general obligation to inform the parties litigation rights, shall apply in writing to inform the special program condition, judicial organization, mode of trial, a court of retrial application right, such important matters, and require the parties to the relevant written materials. The plaintiff in the case of acceptance to inform, the defendant in the indictment served to inform.

The written materials can be specially made "small litigation notice", also can be in the "notification of acceptance", "notice" and other documents related content.

Determination of conversion for small claims procedure or procedures, shall promptly report to the parties to inform.

Article eighth (objection handling)

The parties disagree on the appropriate legal procedures, can be raised before the end of the court debate, the judges shall listen to the opinions, and promptly make a ruling. Objection, can be ruled according to the general provisions of the trial summary procedure or the case transferred to ordinary procedure; if not, the court rejected the objection application. A verbal ruling shall be recorded in writing.

Article ninth (professional judgment)

Each house shall designate a special judge appropriate legal procedure cases, conditional can also set up a special judicial institutions.

Article tenth (conversion)

For the case of small claims procedure, the trial found not in conformity with the provisions of second of the views of conditions or with the views of one of the situations listed in article third, shall make a decision in accordance with the general provisions of the summary procedure or hearing the case to be transferred to the ordinary procedure. A verbal ruling shall be recorded in writing.

On the basis of the provisions of the preceding paragraph and the opinion eighth conversion procedures, shall be reported to the approval of the tribunal leadership, and project related to the trial's business management system modification.

According to the general provisions of the summary procedure of the case hearing, if the parties failed to provide new evidence and the case has been heard, without prior court; transferred to ordinary procedure, a collegial panel shall be formed, the re trial, went on trial.

When filing the application does not determine the small claims procedure cases, no longer into the trial.

Article eleventh (a period)

The parties expressly not to abandon the respondent the period, the people's court may be specified in the general program of 15 days to reply period basis, depending on the circumstances, shortened to 7 days.

Article twelfth (proof)

Made it clear that the parties do not give up the time limit for adducing evidence, can be agreed upon by the parties themselves or the people's court shall specify the time limit for adducing evidence is not more than 10 days.

Have abandoned the term of adducing evidence and proof for the proposed extension of the parties, are generally not permitted.

The court after the discovery of new evidence, can decide whether to allow the parties submitted in accordance with the relevant provisions.

Article thirteenth (Trial)

Application of small claims procedure of cases, can be easily served notice of court, but shall be the relevant certification materials into the volume can be flexible; determine the time, place, way to hold a hearing, not by the "Civil Procedure Law" article 136th, article 138th, article 141st limits; may require the party to carry all the evidence and notify the witness in court, strive for a hearing in court, in court, the judgment is served by.

Article fourteenth (trial period)

Application of small claims procedure to try a case, shall generally be the case within one month. If because of the parties apply for extension of the burden of proof, scheduling case cause cannot be concluded within one month, subject to approval by the local court leadership, may be extended to three months. After extended trial after still can not be accepted, should be in accordance with the provisions of article tenth of the opinions of the conversion process, but because the parties to the jurisdiction objection ruled except appeal and deduct the time.

Article fifteenth (mediation)

Application procedure the trial of the case as far as possible to party mediation organizations in every link of the legal proceedings, attention should be paid to the mediation process flexibility, validity and operability, and strive to achieve the end the case, give full play to the function of lawsuit mediation.

Article sixteenth (judgment and simplified)

For the trial of the case for small claims procedure, judgment can be simplified, the names of the parties, as the facts of the case, the basic reason, amount of payment and time limit of the essential item. Further simplification of the hospital can actively explore the judgment documents.

Article seventeenth (the verdict document)

For the case of small claims procedure, judgment shall specifically cited "Civil Procedure Law" 162nd article; the judgment shall state the "tail of this judgment is the final judgment".

Article eighteenth (determination of an appeal)

Application procedure the trial of the case, to make inadmissible, rejected the prosecution and the jurisdiction objection decision, the parties should be allowed to appeal.

Article nineteenth (Annex)

The opinions shall be implemented as of January 1, 2013.

Have any problem during the implementation, can be reflected in a timely manner to the high court to division.

 

 

Attached:

 

Small litigation notice (sample)

 

 

 

 

:

 

You (unit) and X (2013) issued Spain in the early Republican word no. xxxxx case, after preliminary examination in accordance with the provisions of the civil procedure law, "article 162nd", should apply the procedure for trial. In order to guarantee the rights of the parties to litigation right and procedure smoothly, the relevant matters to inform as follows:

A, also meet the following conditions shall apply to civil cases, small claims procedure for trial:

(a) the facts are clear, the rights and obligations clear, less controversial, can apply summary procedure;

(two) bid for the city urban units in the average annual salary of urban employees below thirty percent (including the number) of (the current standard of 22750.2 yuan);

(three) the following cases belong to a single money v.:

1, contract disputes, disputes, the loan contract leasing contract disputes and contract disputes;

2, the identity relation clear, only exists controversy in the pays the amount, time of alimony, maintenance, alimony dispute case;

3, clear responsibility, liability of motor vehicle traffic accident disputes the claim of the plaintiff loss amount determination and other personal injury liability disputes;

4, for the supply of water, electricity, gas, heating contract dispute case;

5, the bank card dispute case;

6, labor relations, labor contract dispute cases controversial only payment amount and payment at the time of labor remuneration, work-related injury medical expenses, economic compensation or damages cases;

7, labor relations, labor contract dispute cases controversial only payment amount and payment time in labor compensation;

8, other payment disputes.

Two, although the meet the above conditions, but with one of the following cases, shall not be applicable to the small claims procedure:

(a) relates to personal relations disputes, property rights disputes;

(two) additional party or to file a counterclaim cases;

(three) relates to intellectual property cases.

Three, applicable to small claims procedure cases tried by a single judge; can be easily served notice of court; can determine the time, place, method of a defendant court; period can be shortened to 7 days; the time limit of the parties are generally not more than 10 days.

Four, the parties concerned shall carry all the evidence and notify the witness in the court, and ensure that the case as soon as possible.

Five, applicable to small claims procedure to try a case, execute a court. In addition to not accept, reject the lawsuit and the jurisdiction objection shall not, no party may appeal.

Six, the parties to a legally effective judgment, ruling, think is wrong, "may apply for a retrial in accordance with the provisions of the civil procedure law" in article 199th.

Seven, the parties to the case for any small claims procedure, may apply to the judges before the end of the court debate, the court shall make a ruling.

Eight, if the court found in this case does not meet the conditions of small claims procedure, and need according to the general provisions of the summary procedure or hearing cases will be transferred to the ordinary procedure, the judges will inform the parties.

Nine, the parties have any questions, can be reflected in a timely manner to the judicial personnel consultation or.

We inform you that we have

 

Beijing City People's Court (Institute of printing) XXX

Date