"Amendment to the Civil Procedure Law(The draft)"Draft

 

Beijing Institute of Technology Judicial Institute of advanced studies 

 

   

   In view of the amendment of civil procedural law is not a comprehensive revision, as far as possible, make local progress, this paper mainly aims at the "amendment to the Civil Procedure Law (Draft)", proposed a few terms and modifications to the other needed. Amendment proposals more, can refer to Chinese Civil Litigation Law Research Association, Tsinghua University law school professor Zhang Weiping "of the" PRC Civil Procedure Law "revised draft".

   Amendment to the Civil Procedure Law (Draft) provisions and draft statementHttp://blog.sina.com.cn/s/blog_656952ec0100wknd.html.

 

1The scope of procuratorial supervision, without excessive expansion

Civil procedure law amendment (Draft) a:The people's Procuratorate has the right to exercise legal supervision over the civil procuratorial suggestions, to protest the way.

Suggestions:The original fourteenth does not change: the people's Procuratorate has the right to exercise legal supervision over the civil trial activities.

Reason.The scope of procuratorial supervision without excessive expansion. "Civil Procedure Law" provisions of the general part is the procuratorial supervision, in the light of the specific provisions of.

 

2Responding to the jurisdiction, perfect

Civil procedure law amendment (Draft) five:The thirty-eighth changed to 126th, one paragraph is added as the second paragraph: ", the parties did not put forward the objection to jurisdiction, and involved in reply, as should the people's court has jurisdiction, but violating the provisions on jurisdiction except."

Amended as:If a party fails to make reply within the time limit in the objection to jurisdiction, as the appeal by the people's court has jurisdiction, but violating the provisions on jurisdiction except.

Reason."To reply", especially in the party did not put forward objection to jurisdiction and no reply when, it is difficult to identify, difficult operation, so this modification.

 

3Avoidance reasons, extension

Civil procedure law amendment (Draft) seven:The forty-fifth changed to forty-fourth, the first paragraph is revised as follows: the judicial personnel in any of the following circumstances, it shall voluntarily withdraw, 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 relatives;

(two) there is interest in the case;

(three) with other parties, and in this case an agent ad litem, may affect the impartial handling of the case;

(four) the judicial officers violate regulations meet with the parties, agents ad litem, accept the parties, agents ad litem, treat or gift, or take bribes, play favouritism and commit irregularities, perverted the law behavior.

Suggestions:Paragraph 1 to: is a party, party, Party spouse and agent ad litem near relatives or collateral blood relatives within three generations of the party.

A: one of the parties and judges are biased in the trial process.

 

4, to expand the scope of the subject of public interest litigation, improve the relevant system

Civil procedure law amendment (Draft) eight:The pollution of the environment infringement of the legitimate rights and interests of consumers, many damage public interests, social organizations, relevant authorities, may bring a lawsuit to a people's court.

Amended as:The pollution of the environment infringement of the legitimate rights and interests of consumers, many damages social public interests, the relevant administrative organ, people's Procuratorate, social organizations, grassroots organizations can bring a lawsuit to the people's court. Citizens may request the administrative organ or the people's Procuratorate to sue; the relevant administrative organ or the people's Procuratorate 30 days not filed public interest litigation, citizens can sue.

The plaintiff in forma pauperis to lawsuit to the people's court. The defendant loses the case, the defendant bear the cost of litigation.

The people's court public interest cases, can be in accordance with the power of investigation of evidence and facts, not by the parties that limit.

The people's court public interest cases, does not apply the principle of disposition, does not apply mediation.

The people's court for public interest litigation referee for others a party to the case and has the same interest with the plaintiff.

Reason.The main body of public interest suit should be expanded, especially the conditions attached to allow citizens filed public interest litigation, special rules and regulations public interest litigation costs borne, authority to try, disposition and mediation limit, extension of the effect of the judgment is different from common civil procedure.

 

5Establishment of evidence, timely put forward "

Civil procedure law amendment (Draft)Ten:Article sixty-fifth the parties shall promptly provide increased evidence for their claims. The evidence does not provide timely, the people's court shall order it to explain the reason for. The reason is not established, the people's court according to different circumstances be reprimanded, fined, compensation for the losses caused by the delay of action, not to accept the evidence.

Amended as:Parties to submit their ideas should provide evidence in proof limitation in time. The evidence does not provide timely, the people's court shall order it to explain the reason for. The parties malicious delay proceedings, shall not be accepted for more than evidence.

ReasonEvidence: the timely put forward principle is the basic system of modern civil law, the court or the parties and during the court recognized timely put forward evidence. More than when appropriate reason, also can present evidence, strictly limit the proof losing right. More than evidence, discretion should limit the court, so modifications clearly against malicious delay action.

 

6Delete the provisions, mediation

Civil procedure law amendment (Draft) twenty-five:The prosecution to the court for civil disputes, mediation, conciliation.

Suggestions:Delete the existing provisions of civil procedure law, article ninth has enough: "the people's court shall carry out mediation, on a voluntary and lawful basis; if conciliation is unsuccessful, a judgment shall be made without delay."

At the same time, in the current civil procedure law eighth chapter of "mediation" clearly stipulates that "the separation of mediation and trial", and consider the mediation system before litigation, mediation is not timely transferred to judicial procedure.

Reason."Mediation", "mediation is confirmed in priority" policy. "Giving priority to mediation" excessive attention to mediation, too, may cause the right discount, the lack of rules and judicial authority weakened. The court is not a "mediation institute". It is necessary to distinguish between the inside and outside the court mediation, court mediation in any case not be overemphasized, court mediation should be moderate, "to mediate, when the adjudication".

 

7The prosecution case, lower threshold, from the substantive examination to review form

Civil procedure law amendment (Draft) twenty-seven:The people's court shall safeguard the parties in accordance with the law to enjoy the right to sue. In accordance with the law article 118th prosecution, must accept. In line with the conditions for prosecution, shall be filed within seven days, and notify the party concerned; do not meet the conditions of prosecution, shall make a ruling within seven days, will not be accepted; the plaintiff is dissatisfied with the ruling, it may file an appeal.

Suggestions:The article did not respond appropriately "placed on file difficult" problem, introducing the complaint registration system, modify the current civil procedure law 108th, register from the substantive examination to review form.

 

8Improve the referee instruments, open system

Civil procedure law amendment (Draft) thirty-two:The public may have access to a legally effective judgment, ruling, except those involving state secrets, commercial secrets or personal privacy content.

Add the following content as the first paragraph of this article:The people's court shall open a legally effective judgment, ruling, but the verdict, ruling except the book involves state secrets, commercial secrets or personal privacy part.

Reason.To promote judicial openness, to promote fair and open to the public trust, justice.

 

9, applicable scope to expand and refine the simple procedure

Civil Procedure Law Amendment(The draft)Thirty-three.In trying a simple civil case facts are clear, the relationship between the rights and obligations are clear, the controversy is the basic people's court and the tribunals dispatched by it, the provisions of this chapter shall apply. On the provisions of civil cases, the parties may agree to apply summary procedure.

Amended as:The basic people's court and sent to court the following cases, the provisions of this chapter shall apply:

(a) the amount of subject matter of litigation in fifty thousand yuan of the following cases;

(two) simple civil cases and obligations clear facts clearly, right;

(three) the parties before a court in oral or written form agreement cases in which summary procedure is applied;

(four) the people's court may other cases for summary trial with the consent of the parties.

 

10, reasonably determine the scope of micro program

Civil Procedure Law Amendment(The draft)Thirty-five.The amount of five thousand yuan following the trial of civil cases in the basic people's court and the tribunals dispatched by it, execute a court.

Amended as:The basic people's court and sent the court hearing civil cases with a target of ten thousand yuan of the following, execute a court. The higher people's court may according to the local economic development level, approved by the Supreme People's court, determine the small claims procedure subject amount of the case, but shall not exceed a maximum of ten thousand yuan.

Reason.Small litigation subject amount of five thousand yuan, for the developed region is lower, the higher the underdeveloped areas, the flexible provisions.

 

11Retrial system, perfect

Civil Procedure Law Amendment(The draft)Forty.The parties to a legally effective judgment, ruling, that is wrong, may apply to a people's court at a higher level for retrial; occurs in cases between citizens, can also apply to the people's court for retrial. The parties apply for a retrial, judgment, execution of the ruling shall not stop.

Amended as:The parties to a legally effective judgment, ruling, that is wrong, can initiate the action for retrial or to the people's court at a higher level. The court retrial litigation, the parties apply to the court for suspending the original effective execution of the judgment, the people's court shall rule to suspend execution of the original judgment.

Reason.According to jurisprudence, retrial cases shall be the exclusive jurisdiction of the courts, but in view of the current shortage of the judicial credibility, gives the party or a higher people's court retrial application right to choose. To guarantee the stability, should establish retrial system. In order to prevent the error irreparable, the court for retrial after the parties concerned may apply for suspension of execution of the original judgment.

 

12The retrial, scientific setting

Civil Procedure Law Amendment(The draft)Forty-one: Provisions on "party applying retrial", is still not clear and specific.

Suggestions:According to Professor Zhang Weiping's "the" PRC Civil Procedure Law "revised draft":

The application of the parties in accordance with the following circumstances, the people's court shall review:

(a) trial and decision of the trial organization not legitimate;

(two) avoidance of the judge in trial and judgment shall be in accordance with the law;

(three) the judge in the case of the implementation of the crime of duty in the process of the trial of the case;

(four) as a judgment basis of documentary evidence or evidence is forged or altered;

(five) the misrepresentation of the witnesses and expert witnesses, translation, party or legal agent as the decision basis;

(six) the admission is breaking the law in the case of others were forced to make;

(seven) the main evidence for ascertaining the facts of the original judgment;

(eight) the important matters should be the referee is missing;

(nine) as the original judgment according to the judgment, ruling or other referees, administrative sanctions have been revoked or altered;

(ten) the original judgment without clear legal basis;

(eleven) on the same legal fact or the same legal relationship, there are two contradictory effective legal documents, the applicant to apply for retrial retrial on an effective legal documents;

(twelve) the program violates the provisions of the civil procedure law, does not give the statements of the parties or the respondent opportunities;

(thirteen) the program violates the relevant provisions of the civil law exclusive jurisdiction;

(fourteen) the power of attorney or legal agent right lack or agent behavior lacks the necessary authorization;

(fifteen) the parties have new evidence, to reverse the original judgment, ruling, but the delay in the proceedings, except deliberately not the evidence.

The provisions of the preceding article (three), (four), (five), (six), a guilty verdict is limited to the corresponding punishment or other punishment has been determined, or because of a lack of evidence beyond reason not guilty judgment or punishment.

 

13Perfect retrial, relief

Civil Procedure Law Amendment(The draft)Forty-two.The people's court shall review within three months from receipt of the application for retrial, in accordance with the provisions of this law, ruling retrial; do not conform to the provisions of this law, the court rejected the application.......

Proposal complement clause:The court rejected the request, the parties may not be the same reason why again to court for retrial request. The party insists that the wrong, may apply to the people's Procuratorate for protest.

Reason.In the existing institutional framework to ensure the stability, the simultaneous excitation of procuratorial system.

 

14Restrictive regulations, perfect retrial cases

Civil Procedure Law Amendment(The draft)Forty-three.The parties to a legally effective judgment, the dissolution of the marriage mediation book, shall apply for a retrial.

Amended as:The parties to a legally effective judgment, the dissolution of the marriage mediation, the parties shall apply for a retrial, but on the partitioning of property except for matters for retrial.

 

15The abolition of the court, in accordance with the provisions of the authority to start the retrial

Suggestions:Abolish the "Civil Procedure Law" article 177th in accordance with the provisions of the authority to start the retrial court. At the same time, "the trial supervision procedure" chapter name to "retrial procedure".

Reason.The court authority to start the retrial, not legal, and unnecessary. "The trial supervision procedure" a word with a strong color of authority, can not cover all contents of retrial.

 

16The execution reconciliation, refinement

Civil Procedure Law Amendment(The draft)Forty-eight.In the implementation, the parties themselves and reach a settlement agreement, the execution officer shall make a written record of the contents of the agreement, both parties sign or seal......

Amended as:In the implementation, both parties reach a settlement agreement in writing shall be the settlement agreement will be voluntary, submit a copy of the implementing agencies; reached a verbal agreement, the execution officer shall make a written record of the contents of the agreement, both parties sign or seal.

Executive agency shall examine the settlement agreement. The settlement agreement valid, as the person applying for enforcement to withdraw the application for execution, but both parties involved in the reconciliation agreement except as otherwise agreed; the settlement agreement is illegal or invalid, notify the parties concerned to continue, and explain the reasons.

Reason.The original terms is in principle, can be subdivided in different solutions and reach processing rule system, increase the settlement agreement review system.

 

17The implementation of the provisions, increase emergency

Civil Procedure Law Amendment(The draft)Fifty....... The decision of the people's court distrain, freeze, transfer, change property, shall make a ruling, and issue a notice for assistance in execution, the relevant units must be handled.

This paragraph is added:In case of emergency, can ask for assistance in the execution after completing the formalities; to assist in execution shall not refuse to assist in the implementation of the internal program or other provisions.

 

18Introduction, the investigation order system

Suggestion: "Civil Procedure Law" two paragraph is added to article sixty-fourth:

Deputy litigation lawyers to investigate and collect evidence, and may apply to the people's Court issued a warrant. The people's court shall make a decision on whether to allow 3 days.

Lawyers who investigated court issued to the investigation, the relevant units and individuals shall cooperate.

Reason.Hard evidence is the attorney rights prominent manifestation of the problem, introducing proper investigation system helps to strengthen the lawyer's investigation, enhance the lawyer forensics capability.

 

19The arbitration award, the reform of judicial review system

"Civil Procedure Law" article 213rd: the arbitration agency established according to law ruling, if a party fails, the other party may apply to the people's court with jurisdiction for enforcement. The people's court shall enforce the application. The applicant provides evidence proving that the arbitration award in any of the following circumstances, the people's court collegiate bench, not be ruled out.......

Amended as:The arbitration agency established according to law ruling, if a party fails, the other party may apply to the people's court with jurisdiction for enforcement. The people's court shall enforce the application. The applicant according to the "Arbitration Law" article fifty-eighth to the people's court for the cancellation of the arbitration award, the ruling shall not be executed or suspension of execution. The arbitration award by the court revoked, ruling the termination of execution.

Reason: judicial supervision over arbitration at present including the revocation of the award and the two forms of refusing to execute, prone to chaos and corruption, suggested that only the system of revocation of arbitration award.

 

20"Law enforcement", formulation, execution part separated from the "Civil Procedure Law".

 

21The reform of trial grade system

The "two tiered system" to "multiple trial level system". Small litigation, non litigation cases execute a court of third instance; only trial of law, so the grounds of appeal is limited to "the referee illegal"; a leap appeal system, namely the identification of the first instance the facts without objection, but that the applicable law is not legitimate, direct appeal to the third instance court.

 

 

 

Beijing Institute of Technology Judicial Institute of advanced studies

Xu Xin Huang Yanhao Wu Jun

Generation of elite Wang Jiayu Wang Jing Luo Deri Guan Tingting Fu Zheng Gong Shuming Dong Junxia Che Yunxia