And application of case filing system understanding

Gao Minzhi

  The new civil procedure law to further strengthen and improve the acceptance, jurisdiction, service and other related systems, especially for not unified, modification of jurisdiction system and method of delivery system is not perfect cause "hard to reach" problem, the prosecution in the trial procedure is not clear which is difficult to promote, the parties the right to sue is not as strict protection but the court "on file" criticized, the system modification and improvement. The people's courts at all levels should be strictly in accordance with the provisions of the new civil procedure law, safeguard the litigation rights of the parties in accordance with the law, to ensure that the file system of procedural justice, safeguard the people's court fair and efficient judicial authority image.

  A profound understanding of procedure justice, civil litigation filing system

  1Equal protection of rights and interests of the parties

  The new civil procedure law was amended and perfected the agreement jurisdiction, objection to the jurisdiction of the content, setLitigation jurisdiction, reduce parties v.tired, also gives the jurisdiction of a people's court according to law justification, to save the judicial resources, the realization of judicial justice and efficiency.

  2In strict accordance with the law to protect the parties have the right to sue

  The new civil procedure law increases the security provisions of the principle of party the right to sue in the proceedings, and the definite defendant, the defendant clear contact, shall be submitted to the defence, the people's court shall make a ruling within seven days on not accepting the case further requirements, convenient appellate court accurate qualification procedure the main parties, to a certain extent, can prevent the abuse of litigation, help to regulate the trial order. The new civil procedure lawTo request the people's court shall not accept the case within seven days must be issued a written ruling,The people's court shall ensure that the parties have the right to sue, and resolutely put an end to some court issued and law inconsistent internal guidance, enumerates many not to file a case, earnestly safeguard the litigation rights of the parties.

  3Clear rules, electronic service delivery catheter, promote the orderly and efficient procedure for

  The parties have refused to accept the people's court in the trial practice of the service of legal documents behavior occurs, the new law of civil litigationLien service made a mandatoryRegulations. In the judicial practice of our country has to try and accumulated experience, this modification increases the electronic service content, to improve judicial efficiency, reduce the burden of judicial resources is of positive significance to the informationization construction, the people's court has also put forward higher requirements.

  Two, in strict accordance with the implementation of the new provisions of civil litigation filing system

  (a) with the agreement jurisdiction system, normative responding jurisdiction and jurisdiction transfer system, safeguard the litigation rights of the parties under the jurisdiction

  1Agreement on jurisdiction

  The provisions of the new civil procedure law, agreement jurisdiction must meet the following conditions:1.The agreement of the parties under the jurisdiction of the case, only limited to the contract in cases of first instance civil economic disputes and other disputes over property rights and interests of cases;2.The scope of the agreement of the parties to the jurisdiction of the court, the people's court at the domicile of the defendant, the performance of the contract, the contract is signed, the plaintiff's domicile, people's Court of the place where the actual contact and other locations;3.Must be in a written contract choice of jurisdiction;4.Jurisdiction by agreement shall not violate the provisions of Civil Procedure Law on jurisdiction. Under the jurisdiction of the people's courts at various levels of protocol actual contact site to correctly identify, judge. The jurisdiction agreement in violation of grade jurisdiction and exclusive jurisdiction, in accordance with the current judicial interpretation of cognizance.

  2On litigation jurisdiction

  The new civil procedure law to make specific provisions on litigation jurisdiction. Responding to the jurisdiction should have the following conditions: (1) if a party fails to make the respondent in the period of jurisdiction objection (2The parties involved in reply (;)3Responding to the jurisdiction shall be under the jurisdiction of) in violation of the exclusive jurisdiction and grade. We think,The parties can challenge the jurisdiction and involved in reply, not as a defendant has accepted the court jurisdiction.In addition, to realize the third party with independent claim into action, should be merged into two v.. The people's court in order to save the lawsuit resources, prevent conflict judgment, can be combined and tried. But this kind of joinder is not required, can be combined with instance, can also be separated. If third people are willing to accept the court jurisdiction, can join the others had begun proceedings, since no longer put forward the objection to jurisdiction; if third people think that the court has no jurisdiction in the trial, can also choose respectively, to the jurisdiction of the court prosecuted Lord Zhang Quanli.

  3On the jurisdiction of the transfer system

  The new civil procedure lawOn the jurisdiction of devolution of the restrictive modification, increase the examination and approval procedure.However, the law does not make clear provisions on the necessary conditions, jurisdiction transfer procedures, the rights of the parties and other relief. In judicial practice, individual court this lax regulation, the case is handed by an inferior people's court is more casual, avoid supervision in higher courts, violation of the procedural rights of the parties, may increase the likelihood of local protection, also affect the court's reputation. The Supreme People's court is ready to develop the corresponding judicial interpretations of the provisions of the law, "the necessary conditions, approval procedures, documents and forms" to be clear, in order to facilitate the correct application of the law. We think, the law "necessary" situation, can include stakeholder cases, regional, industry associations in the case of enterprise bankruptcy cases, the labor dispute cases, creditor's rights confirmation. In all the cases mainly refers to cases involving a large number of cases, the parties to a case which is a natural person. In order to carry out the Party Central Committee to resolve social contradictions work center of gravity down requirements, such cases can make the lower court. Regional, industry association cases mainly refers to the group, the type of case. Such cases must rely on local Party committee and government to solve problems, depression jurisdiction, is conducive to resolving contradictions. Bankruptcy derivative litigation refers to the derivative litigation of labor dispute litigation, small claims procedure, the debtor to fulfill the contract litigation, to recover the debtor creditor litigation, to revoke the obligor disposal of property litigation, the debtor's property is invalid confirmation litigation, litigation, the recall right of exemption right litigation and offset right litigation cases. If this kind of cases are heard by intermediate people's court, the high court as court of second instance, is not the economy, is not conducive to resolving contradictions. According to the provisions of jurisdiction, the amount or types of cases belong to the lower court jurisdiction, to an inferior court, is conducive to the parties to participate in the proceedings, save litigation costs, saving judicial resources. Of course, the "necessary" situation and what should be, in practice constantly summarizing.

  Transfer of jurisdiction, whether it is "down" or "hand", is on the level jurisdiction changes, should be used with caution. Transfer can not under the jurisdiction of the court of appeal decided by themselves, must be approved by the people's court at a higher level, this is to avoid some courts randomly downward transfer of jurisdiction and from the procedure of control. According to the relevant provisions, shall be in written form shall be submitted to the court at the next higher level for examination and approval, notify the court at the next higher level shall be made as soon as possible to agree and disagree. General should be receiving the jurisdiction in civil cases of first instance in the people's court case to the lower court to hear the request within ten days written notice, to agree or disagree.

  "Provisions of the Supreme People's Court on Several Issues concerning the trial of civil jurisdiction objection cases" (Interpretation (2009)17No.) fourth provisions: the superior people's court to civil cases of first instance under its jurisdiction to hear from the people's court at a lower level, it shall make a decision. Modification of the civil procedure law, from the judicial interpretation of the spirit: that we must control the jurisdiction down. From a legal perspective, transfer of jurisdiction of the behavior, is the court ruling behavior on procedural matters, shall adopt the form of award. For the protection of the litigation rights of the parties, for the lower case to take order form more appropriate. The people's court at a higher level for approval, the people's court shall rule in civil cases of first instance in the case to the people's court at a lower level, and explain the reasons. The party is dissatisfied with the ruling of the appeal, the people's Court of second instance shall try and make a ruling.

  (two) effective protection of the parties the right to sue, specification shall not accept the ruling made conditions

  The new civil procedure law to request the people's court in accordance with the provisions of the 119th law of civil procedure prosecution, must be accepted; on the plaintiff refuses to accept, the people's court shall make inadmissible civil award. If a party refuses to accept the can appeal to a higher people's court.

  The people's Court of first instance should be in accordance with the law, but also safe. To protect the right to appeal to the parties in accordance with the law, the prosecution to the court proceedings, who meet the conditions of admissibility provisions of the Civil Procedure Law shall be handled in accordance with the law, timely, it is the legal responsibility. But in practice, we also should see, some courts in accepting cases, regardless of the effect of resolving contradictions, blindly into the court, accept to come in after the judicial process by which the effect is not good, the entity rights are not guaranteed, seriously affected the judicial authority and judicial credibility, to the court. The work of great inconvenience, negative social effect. In order to solve this problem, on the acceptance of these sensitive cases, some courts to take "three not" principle, i.e. no prosecution materials, do not issue a written ruling, not on file, and work in process simplification, coordination is not in place, to the parties and social discontent. The courts at all levels shall attach great importance to legal interpretation, mediation work, and actively help the parties to seek the ideal of relief right, fundamentally solve the contradiction.

  (three) to adapt to the new provisions of the requirements of the new situation, the scientific use of lien service and electronic service system

  The new civil procedure law has made the new regulations on the retention of service manner, i.e.Audio-visual materials can be served as the instrument cardMing. In the photo, video and other audio-visual recording service process should include the following aspects: one is the recipient of the service or the adult relatives do live in here; two is the principal has to the addressee or the adult family member living with the delivery of the service of legal documents, but the recipient of the service or the adult family member living with a refusal to accept or reject signed and sealed in the documents; three is the principal will document the addressee or retained in the adult relatives live.

  The people's court decided to adoptThe electronic mode of service, must first go through the consent of the parties concerned, only when the parties able and willing to accept and use the electronic mode of service,The people's court may adopt this new approach. Electronic delivery should be able to easily between the court and the parties litigation documents, not to make this process more difficult or give the party an unnecessary burden. The new Civil Procedure Law lists two main ways of electronic delivery, fax and e-mail, but are not limited to these two, the general provisions, namely "to confirm the receipt of the way", the people's court shall note that electronic delivery medium.

  In practice, to fully ensure the addressee's right to know and the voluntary choice, electronic service should be required to provide and the addressee signature confirmation address data system to receive the documents, the people's court shall save the litigation documents have been issued and reach the other side of the relevant evidence system. In the trial practice must strictly abide by the provisions of the civil procedure law, can not be arbitrarily expanded the scope of electronic mode of service,The verdict, ruling and mediation agreement can not use the electronic mode of service.