As the trial system gradually deepening, the lawyer duty more clear and perfect, litigation more and more emphasis on professional knowledge and skills. The lawyer, in addition to the law of deep foundation, use and master the skill of litigation skills, make the case won, is an indisputable fact. In the city of Beijing lawyers association to held the second Beijing lawyers Forum on the occasion, I would like to some skills as a plaintiff attorney determines the action direction in the choice of cases, from some cases and factors to consider, in order to achieve with the colleagues to discuss and improve the quality of lawyers!

A, the circumstances of the case

A case:Some mine operators Zhang, in the process of mining ore please Wang used the domesticated donkey to carry ore, and signed the agreement of the pack number and remuneration. One day, Wang Mou to ore loading in the mining area, mining area of a wall suddenly collapsed, Wang injured, hospital treatment 60 days, pay the medical expenses of nearly 10 thousand yuan. After Wang Mou to employees affected by the dispute on the grounds to the courts, that between them and Zhang Department of employment relationship, hurt by during the period of employment the employer liability, and provide medical bills and carry the contract. The court ruled that the trial, from the point of view of Wang Mou provides evidence, employment relationship between Wang and Zhang is not established, so they belong to the contractor relation, Wang, rejected the request.

Case two:In 2000 July, the song a travel to Chengdu Dayun Agency registration to the organization of Chengdu, Chongqing, Three Gorges, Wuhan four tours, the travel agency because of less number of registration, privately to the song to Chengdu Youth Travel Agency, the agency hired Chengdu retired cadres of the vehicle. During the trip, the traffic accident happened in Song paraplegia. The traffic department responsible for the accident analysis, identification of vehicles unqualified, Chengdu, drivers take the full liability for the traffic accident. The song after the prosecution to the court, the trial song and Chengdu Youth Travel Service in tourism contract, so the decision Youth Travel Agency compensation song for medical expenses, disability living allowance, mental solatium combined 1884281.91 yuan. Chengdu Dayun travel agency shall assume joint and several liability. The song requires Chengdu retired cadres responsibility litigation request, not included in the scope of adjustment, should be dealt with. Chengdu youth travel agency received the written judgment, file an appeal against the. Trial court that, this is a case of infringement, Chengdu Chengdu retired cadres and solid judgment by the travel agency compensation song for medical expenses, disability living allowance, mental solatium combined 865657.91 yuan. Dismissed the song requires Chengdu China youth travel agency liability claims.

Two, case analysis

   The author thinks, the above two cases are the choice of error cases failed.

A case:According to the facts of the case, Wang damage is caused by the wall and wall belongs to Zhang, buildings, therefore, according to the Supreme Court issued "Regulations" provisions of the civil case case, the choice of building damage compensation is undoubtedly the most favorable to the Wang case. Because the building to cause damage compensation dispute belongs to the special tort cases, the burden of proof and the fault responsibility and employee personal injury compensation disputes exist great difference, if the case Wang Mou to sue for damages caused by building Zhang, Wang court will undoubtedly support the proposal, but because Wang Mou in the prosecution is the employee personal injury compensation disputes prosecution, even if the judge will cause of action for damages caused by building of any dispute according to court in the investigation of the facts, the judge also unable to change the subject matter of the case, Wang Mou to support the proposal, or deprived of the right to Zhang in the special tort cases, violation of Zhang's litigation rights.

Case two:In this case, the second ruling results are in the amount of compensation and compensation of the main dramatic difference is because of the change that litigation court proceedings and the main points. The court of first instance that the song is proposed to determine the action of assumpsit, Chengdu youth travel agency as the parties to the contract responsibility, the travel agency for privately to the song to Chengdu youth travel agency shall bear joint and several liability, Chengdu retired cadres as tort liability is not responsible. But the court of second instance that song filed a tort action, because, the song will the first defendant column presents the spiritual compensation request for retired cadres, and in addition, when the song at the request of the people's court to take measures for the preservation of property, but also to the person damage compensate request, so, make with the trial will completely different decision.

Three, the importance of

   Importance from the above two cases can clearly see the correct selection of the correct choice of the number, amount of compensation is not only related to the party's cause, even directly determines the success or failure of the case. The causes of civil cases is the name of civil cases, reflect the nature of cases involving civil legal relationship, the people's court for legal relationship is the generalization of the dispute. The Supreme Court promulgated the "Regulations" of the civil cases in February 4, 2008, and formally implemented in April 1st. The rules than "the causes of civil cases (Trial)" the provisions more comprehensive, specific, detailed, not only convenient to choose the appropriate parties of litigation, to better safeguard the legitimate rights and interests of the parties, but also conducive to the judges apply the law correctly, is conducive to further unify judgment standard. In practice, the importance is reflected in: first, the people's court actually determines the scope of civil executive, because each case corresponds to a kind of case, the case only in the Supreme Court in civil cases where the stipulated range, prosecution can be accepted and the trial court. Secondly, the sometimes also determines the jurisdiction of the court, especially in the case of breach and tort concurrence, the parties according to the different of the breach or infringement lawsuit jurisdiction, the case will be different. Thirdly, the limitation of action determines the limitation of action, different causes its rights may be different. Fourthly, the determines the applicable laws and regulations, the case is different, the applicable laws and norms will be different.

   The case for plaintiffs is more important, legitimacy not only determine the lawsuit request, determine the burden of proof, or even directly determines the success or failure of the case. Such as a car rental vehicles with a driver to rent, in the riding process, lessors agreed by the person that rent a car to drive, causing the vehicle to turn into a ravine, car rental people dead, police departments responsible person driving the vehicle rental. In this case, if the plaintiff lawyers with traffic accident or employment disputes prosecution, he will not get compensation, but if the prosecution to the court to work for, ask the lessor compensation car rental people due to his loss of death, the people's court will support this claim. So, where is an important tool for the selection of legal relationship, is an important manifestation of the right way, is both a right and an obligation. Some lawyers mistakenly believe that it is the duty of a judge, determine the cause, thus inadvertently to re select the wrong choice, even in the case, should win the case against, and that brings its own risk compensation for the loss of the parties.

Four, several aspects should be considered to choose the counsel for the plaintiff

   Accurate selection of case is the key to protect the interests of the case, case, choose the most beneficial to their cause of action is the primary responsibility of the parties, lawyers. Then the lawyer should be how to choose? We should consider what aspects? The author thinks, as the plaintiff lawyers should consider the following aspects in the proceedings:

   First, consider whether the plaintiff can obtain the maximum compensation, whether can the plaintiff losses to maximize recovery, this is the most important. Such as the song of a case, infringement and breach of contract lawsuit compensation results are millions of yuan.

   Second, to consider the jurisdiction of court cases, minimize the cost of litigation. Such as traffic accidents in the taxi carrier contract in the case, if the choice of infringement proceedings, the defendant has his domicile or tort (including the place of tort, damage occurs to) courts have jurisdiction over the case; if you choose the default action, it is only in the contract is performed or the domicile of the defendant have jurisdiction. As the plaintiff may from convenient lawsuit, reduce litigation cost, choose the proper case and appropriate under the jurisdiction of the court.

   Third, to consider the limitation period for the liabilities of the other party. As we all know, the limitation of action filed a breach of contract lawsuit is two years, the limitation of action and initiate a personal injury compensation is one year, then we have to consider the way the accountability and limitation of length, against the other responsibility is different, so the term is different.

   Fourth, the degree of difficulty to consider the evidence. For example: a person is hurt by falling flowerpot upstairs, if he is to the person damage compensate dispute as the prosecution case, the case will be identified as general tort case, the plaintiff can only select a person or household as a defendant, and he recognized the harm to bear the burden of proof; if he to the joint dangerous act causing damages disputes as the prosecution case, the case will be identified as special tort cases, the plaintiff may all possible damage behavior of individuals or households implementation as a defendant, the defendant must have not implemented the injury behavior bear the burden of proof.

Fifth, to consider the ability to perform the main responsibility. The ability to perform the responsibility subject of interests can be protected to the plaintiff is crucial. As the counsel for the plaintiff, defendant's main body to deal with possible compensation ability to judge, subject choice compensation ability as a defense, and then determine the cause. As in the case of two, if the travel agency has the power, on the choice of a breach of contract lawsuit against travel agency, at the same time, because she received for an unqualified vehicle transport, he shall bear joint and several liability, so, the travel agents and travel agency to court; if the team have the strength, on the choice of tort the lawsuit against the team, the same team, selection of the defendant, also can consider to be a traffic accident on the other side, even the road management department and so on as co defendant; if the defendant economic strength is unknown or the economic strength is not HERSHEY'S, can consider separate litigation, namely the nearest prosecution travel agency breach of contract, then sues the specific tortfeasor.

   Sixth, consider the legal relationship can accurately reflect the dispute. Such as joint venture disputes and debt disputes, such as the name of the joint venture, but not involved in business disputes, if associated with the prosecution, can not reflect the real legal disputes, and may be due to the improper court dismissed the action request.

    Seventh, we should consider whether can be the most direct protection of the interests of the parties. Such as the compensation of medical damage compensation disputes and medical accidents are to safeguard the interests of clients, but compensation of medical accidents identification procedures, accident, many high standard medical circle of human relationship, without mutual Jieduan the unspoken rule and other factors, so that some medical disputes can not be identified as medical malpractice. The disputes of medical damage compensation only need to prove the medical behavior and the damage there is a causal relationship, and medical personnel are designated by the Ministry of justice professionals, and have no binding region, so the choice of medical damage compensation disputes can achieve more direct protection of the interests of the parties to.

Five, the conclusion

   Ought to see, at present, both lawyers or judges, in the choice of the time, are relatively coarse grains. The author once again to remind colleagues, improve service skills, careful selection of case, reduce litigation risk, improve the service level.

(author: Beijing city in the same law firm partner and lawyer, member of the association of Beijing culture, entertainment and Sports Committee and vice secretary -- Ouyang Jihua)