The new civil procedure to modify the interpretation

First, the integrity of the system

 

1, directly increase the principle of good faith in law

The old people v.13ArticlePartyThe right of disposing of their own civil rights and litigation rights within the limits prescribed by law.

The Xinmin v.13One paragraph shall be added as the first paragraph: ", civil litigation should follow the principle of honesty and credit."

 

2The increase in the agent ad litem, the application for withdrawal, standardize the behavior of the agent and the judicial personnel,To ensure a fair trial

The new law stipulates.......

The provisions of the preceding three paragraphs, apply to clerks, interpreters, expert witnesses, the inspector."

The old the45A: "the judicial personnel in any of the following circumstances, must be avoided, the parties shall have the right to apply orally or in writing for his withdrawal:

(a) is a party to the case or the parties, agents ad litem close relatives;

(two) there is interest in the case;

(three) there are other relationship with a party to the case, may affect the impartial handling of the case.

The provisions of the preceding paragraph, apply to clerks, interpreters, expert witnesses, the inspector."

The avoidance system changes a biggest luminescent spot lies in the increase of provisions may apply for withdrawal of relationship between litigation agent and the judicial personnel etc.. To prevent the abuse of withdrawal right, trying to makeAs unnecessary obstacles and interrupt. Note: to apply for withdrawal has good reason to be malicious application for withdrawal, must undertake the legal liability to prevent civil litigation.

3Increased, malicious litigation law

The Xinmin v.112If a party malicious collusion between, through litigation, mediation and other ways to infringe upon the legitimate rights and interests, the people's court shall reject the request, and according to the seriousness of the circumstances, impose a fine of detention;Constitute a crime, shall be investigated for criminal responsibility according to law.

The Xinmin v.113The execution of malicious collusion with others, through litigation, arbitration, mediation and other ways to escape to perform the obligations specified in the legal document, the people's court shall according to the seriousness of the circumstances, impose a fine of detention;Constitute a crime, shall be investigated for criminal responsibility according to law."

This provision coverage from action to execute,To provide a legal basis for the identification of malicious litigation,Will be effective against false action and execute malicious people to avoid execution behavior,To promote the integrity of litigation."

 

 

Two, the small claims system

 

1The new law

The new civil procedure law article162A: "trying simple civil cases in accordance with the law 157th the provisions of the first paragraph of the basic people's court and the tribunals dispatched by it, subject to the provinces, autonomous regions, municipalities directly under the central government last year's annual average wage of employees below thirty percent, execute a court."

The amendments will jot lawsuit system in civil procedure law. The small claims system, three conditions must be met:

1) can only be grass-roots court and sent the court, 

2) must be simple civil cases, 

3) bid must be whole area staff average wages of local employment30%Following.

The small claims system, the direct result is a final judgment, a judgment is the final judgment, effective immediately, not appeal.

2The implementation opinions, Tianjin court issued "on the application of small claims procedure related civil cases"

"Opinions" made clear the suitable procedure lawsuit subject and scope. Apply small claims procedure cases is mainly the relationship between the facts are clear, the rights and obligations are clear, less controversial, bid for the city, the average annual salary of urban employees30%The following payment cases, and the application of small claims procedure9A type of case and is not suitable for small claims procedure6In such cases.

Apply small claims procedure cases:

1.  Contract disputes, contract disputes, contract disputes, lease loan service contract disputes

2.  The identity relation clear, only in the payment of the amount, time controversial alimony, maintenance, alimony dispute cases

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

4.  For the supply of water, electricity, gas, heating contract dispute case

5.  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.  Other payment disputes

Not applicable:

1.  Personal relations disputes. Property rights dispute case

2.  The additional party or to file a counterclaim cases

3.  IP related cases

"Opinions" to optimize the mode of trial, to summon the litigants, determine the provisions in the defense period and the time limit for adducing evidence should adopt a more simple way. The trial process may not be subject to precedence constraints court inquiry and debate, the final statement, the court mediation, the case is simplified as much as possible unnecessary links, and strive to do a session, the court verdict, the court judgment is served by.

"Opinions" requirements, small claims procedure time limit for a month, if the trial over parties in the litigation request to increase in litigation, the parties prescribed standard counterclaim or additional party and the complexity of the case is not appropriate for that trial procedure, reported the approval to handle general according to the provisions of the summary procedure, examination and approval or the vice president in charge of ruled to ordinary procedure.

 

Three, public interest litigation

 

1The new law, the public interest litigation system

The Xinmin v.55A: "on the pollution of the environment infringement of the legitimate rights and interests of consumers, many such harm the social and public interests, the law of the relevant organs and organizations can bring a lawsuit to the people's court."

Note: This is the provisions of public interest litigation system is still limited to the pollution of the environment, against the legitimate rights and interests of consumers of the tort is public interest litigation system, but the new law to start the subject of public interest litigation representation is still not clear.

The general subject to environmental organizations, consumer associations, the public welfare lawsuit legislation will individuals excluded from the scope of the subject of litigation. And the effect of the implementation of public interest litigation, remains to be further studied. To make this concept into real practice, open convenient ways of public interest litigation, but also the relevant specification refinement, implementation details supporting the development of.

 

2Have jurisdiction over

In the present civil public interest litigation preliminary implementation stage, in order to ensure the effect of cases, we tend to think that civil tort litigation principle shall be the place where the intermediate people's court. Marine environmental public interest litigation, or damage occurs by pollution, pollution prevention measures taken in accordance with the "special procedure of maritime court of the people's Republic of China" Special Maritime Procedure Law of maritime courts appellate jurisdiction; the higher people's court designated by the maritime court can be summarized in terrigenous pollution and sea water pollution public interest litigation.

 

3Acceptance

For the following two types of public interest litigation, the people's court should not be accepted. One is the civil public interest litigation filed the lawsuit for the industry organization. For a simple to litigation as the industry organization is entrusted as an agent ad litem and participate in litigation, rather than directly for the plaintiff filed a lawsuit. Two is the destruction of marine ecology, marine resources, marine protected areas resulting in major losses, the relevant organizations of public interest litigation claim national loss.

"The people's Republic of China Marine Environmental Protection Law" article90Section second has been clearly stipulates: "the destruction of marine ecology, marine resources, marine protected areas, causing major losses to the state, by according to the provisions of this law to conduct marine environment supervision and control departments on behalf of the state responsibility of claims for damages."The term is weighted terms, is limited in terms of marine ecological resources, to claim the main restricted to conduct marine environment supervision and control departments, exclusion of relevant organizations.

 

Four, an outsider to revoke

 

1Additional, the withdraw of the third person, Tao infringed rights of the third party rights

The new civil procedure law article56A: "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."

This amendment increased the withdraw of the third person is similar to that of the conventional procedure for trial supervision, and from the procedure for trial supervision. The traditional trial supervision procedure is a procedure of second instance trial, or not after the appeal, a party to a legally effective judgment one kind of relief procedure, mainly in three ways: the court of self-examination, the application of the parties concerned, procuratorate. And the withdraw of the third person only by the parties themselves apply, go to program is not a retrial procedure. Can say, the advantages of the withdraw of the third person in third human rights without their knowledge or informed not rights case, the overturn force referee, provides a Easy Access to third adults.

But to remind is, third people must meet the following three hard conditions, if a condition is not met, the withdraw of the third person cannot be established.

1) did not participate in the cause of action is not their own;

2There is evidence of judgment) effect error;

3Since the proposed) knows or should know that within six months from the date of their own rights and interests.

 

 

Five, the act preservation

 

1The new law

The new civil procedure law article100A: "the people's court for the acts of either party or for 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 behavior or forbidden it to make certain behavior;

The absence of such application, the people's court may rule the preservation measures when necessary. The people's courts to take preventive measures, may order the applicant to provide a guarantee, the applicant fails to provide security, the court rejected the application.

A people's court accepts an application, if the case is urgent, must make the decision within forty-eight hours; decided to take preservation measures, it shall be enforced immediately."

Article101A: the interested parties in case of emergency, do not immediately apply for the preservation of its lawful rights and interests will suffer irreparable harm, in bringing a suit or applying for arbitration to be preserved before the property is located, has his domicile or the case to the people's court having jurisdiction to apply the preservation measures. The applicant shall provide guaranty, does not provide a guarantee, the court rejected the application.

A people's court accepts an application, shall make a ruling within forty-eight hours; decided to take preservation measures, it shall be enforced immediately.

The applicant within thirty days after bringing a suit or applying for arbitration is not in accordance with the law in the people's court to take preservation measures, the people's court shall rescind the.

 

Preservation of act preservation type as a new, composed of civil procedure system of preservation, preservation of property and evidence preservation. Act preservation, is also divided into acts of preservation and the act preservation before litigation, can be in accordance with the application of the parties or by the court on its starting. The acts of preservation, but like the evidence preservation, property preservation, act preservation if the court for collateral, must provide guarantees, otherwise reject the application, because the applicant to prevent wrong preservation of respondent damage.

Type of behavior preservation: one is to ensure that the type of act preservation, to ensure that the judgment of the case for future implementation of the basic functions of. The two is to stop the behavior preservation, to prevent to the parties, causing other damage to its basic function.

The applicable conditions of act preservation:

1.There is preliminary evidence that the applicant's legitimate rights and interests are or will be hit by the applicant against;

2.If we do not take action preservation will be to apply for damages or the expansion of the injury;

3.If we do not take action preservation may give the damage caused by the act preservation is likely to take more than if the respondent damage. But if the committee action damages to the public interests, shall not take action preservation.

After modifying the104Article on "property dispute case, by the applicant to provide a guarantee, the people's court shall rule to cancel the preservation"

Act preservation, and preservation of property is different, the applicant to provide a guarantee may not be able to solve the problem of rights protection, especially by other lawful rights and interests of stop type act preservation to protect the request outside of the applicant, but not be absolved by the applicant guarantee.

Six, the mediation agreement judicial confirmation

 

1Sixteenth, delete.

The old people v.16A people's mediation committee is in the basic level people's governments and the basic people's court under the mediation of civil disputes, the organizations of the masses.

The people's Mediation Committee for mediation in accordance with the law, on the principle of voluntary. The parties to the mediation agreement shall perform;Unwilling to mediation, mediation fails or estoppel, can sue to people court.

The people's Mediation Committee for mediation of civil disputes, such as a violation of the law, the people's court shall correct.

 

2, law revision

The new civil procedure law article122A: "the prosecution to the court for civil disputes, mediation, conciliation, the parties to the mediation except."

This is amended to reflect the important role of mediation system in civil procedure in the program, as long as the appropriate mediation, mediation should be first, and strive to resolve civil disputes at the mediation stage, rather than by the judgment, ruling way.

 

3One of the special procedures, add: to confirm the effect of mediation agreement

The new civil procedure law article194A: "apply for judicial confirmation of the mediation agreement by both parties in accordance with the law, the people's mediation method, within thirty days since the date of the agreement mediation, the mediation organization to the basic people's court at the place."

The new civil procedure law article195Article: "the people's court after the acceptance of the application, after examination, in accordance with the law, ruling the effect of the mediation agreement, Party refuses to perform or fails to fully perform, the other party may apply to the people's court for enforcement; does not comply with the provisions of the law, rule to reject the petition, the way to change the original mediation the mediation agreement or to reach a new agreement of mediation, or may apply to a people's court."

The amendments of two new program in a special chapter to increase program, it is confirmed that the effect of mediation agreement. Without the judicial confirmation of the mediation agreement, if a party fails to perform the obligation of the mediation agreement, the other party can not be based on the mediation agreement for execution, only to bring a lawsuit. After the amendment, may apply to the people's court mediation agreement judicial confirmation of the parties, through the judicial confirmation of the mediation agreement, a party refuses to perform, the other party may apply for execution. But take note:

1The mediation agreement) must be the people's Mediation Committee for mediation cases;

2Both sides) must apply for confirmation;

3) application within thirty days from the effective date must be in the mediation agreement;

4Put forward to the mediation committee) local grassroots courts.

 

4The court has the right, active review, review is voluntary, whether there is invalid if. The judicial confirmation is an instance, the sole judge system.

5The relief system, judicial confirmation

If the mediation agreement does not conform to the law by the people's court ruling for rejection of the application, the parties may have two kinds of choices, one is through the people's mediation still change the original mediation agreement or to reach a new agreement of mediation, two is to bring a lawsuit to the people's court dispute itself.

But if it is the case of objection, by other means.

6To have other organizations, adjusting a mediation agreement can be reached, civil mediation by the court

 

Seven, real right for security implementation

 

1The special procedures, add two: the realization of security interest

The new civil procedure law article197Article: "the people's court after the acceptance of the application, after examination, in accordance with the law, ruling auction, sold the property for security, parties on the basis of the decision may apply to a people's court for enforcement; do not comply with the provisions of the law, the court rejected the request, the parties may apply to the people's court to prosecute."

The amendments added second special program is the realization of real right of pledge. The establishment of mortgage, pledge, lien in case of real right for security may, before filing a lawsuit on the basis of security registration and other evidence to the court for enforcement of , review by the court, after the establishment of ruling auction sale secured property, the realization of creditor's rights. If not in accordance with the provisions, the court rejected the prosecution.

2The party does not dispute the debt, the property is located, or property registration jurisdiction

The new civil procedure law article196A: "for the realization of security interest, the real right for security and for realizing the real rights for security of other people have the right to request the people law in accordance with the law, is to guarantee property or real right of pledge registration at the basic people's court at."

 

Eight, procuratorial suggestion system

 

1Newly added

The old people v.14A: the people's Procuratorate has the right to exercise legal supervision over the civil trial activities.

The Xinmin v.14Article: "the people's Procuratorate has the right to exercise legal supervision over the civil litigation."

2To perfect the function of legal supervision, procuratorate, procuratorial suggestion into new supervision means

The new civil procedure law article208A: "the Supreme People's Procuratorate at all levels of people's Court of a legally effective judgment, ruling the superior people's Procuratorate, the people's court at a lower level a legally effective judgment, ruling, discovery of the 200th rules fixed circumstances, or the discovery of mediation to harm the interests of the state, social and public interests, should be put forward.

Local people's procuratorates of the people's courts at the same level a legally effective judgment, ruling, found the law the 200th regulation circumstances, or the discovery of mediation to harm the interests of the state, social and public interests, can present procuratorial suggestions to the people's courts at the same level, and report for the record the higher people's Procuratorate; also can carry superior people's Procuratorate to present a protest to the people's court at the same level.

Illegal judicial personnel of people's procuratorates at all levels except for 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."

3The new law

Article209A: 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.

Article210A: the people's Procuratorate for the performance of the legal responsibilities of supervision required procuratorial suggestions or protest, can the party or an outsider investigations to verify the situation.

 

Procuratorates as public prosecution, in addition to the function, the procuratorate should bear the legal supervision function, such as providing protest, this increases the procuratorate can present procuratorial suggestions to the court when necessary. The court found that the procuratorate in illegal cases in addition to protest, but also questioned by issuing the procuratorial suggestions. As to how the procuratorial suggestion effect, remains to be investigated.

Check the recommendations can be proposed by the procuratorial organs in accordance with the terms, or the parties concerned may apply.