Ten effect of the new "Civil Procedure Law" on the marriage cases

 (Shanghai Shanghai law firmWang Xiaocheng lawyers)

 

In August 31, 2012, the eleventh session of the National People's Congress Standing Committee eighteenth meeting, adopted an amendment to the "PRC Civil Procedure Law" decision, the Civil Procedure Law revised (hereinafter referred to as the "new law") will be implemented from January 1, 2013. This is the law since 1991 since the implementation of the second amendment, the first amendment compared with 2007 Revision, it is a major overhaul, according to the National People's Congress announced the decision, is sixty, the actual relates to specific provisions, increase, modify the exclusions, a total of eighty-five, the current civil procedure law perfect further, also added public interest litigation, a small amount of a trial, the act preservation, the withdraw of the third person damage system. The implementation of the new civil procedure law, the marriage family case at least influence from ten aspects.

 

A complaint filing, no longer "difficult", litigation rights protection

The new law provisions:

Article 123rd 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 119th 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.

The right of action is the constitutional law gives the fundamental rights of the parties. "On file" has been the common people often reflect the problem. For marriage and family cases involving the gossip things, individual courts tend to internal documents to limit the right to sue, received the plaintiff indictment, to review the material grounds, unresponsive, the complaint does not meet the requirements, only in oral form to make inadmissible decision, caused the plaintiff appeal rights can not be the normal exercise.

The new civil procedure law the provisions of article 123rd, put forward the strict request to the people's court, in order to guarantee the right to sue.

First of all, this article clearly states: "the people's court shall safeguard the parties in accordance with the law to enjoy the right to sue," the provisions of the civil procedure law is the eighth "extended court shall guarantee the exercise of litigation rights", stressed that the court should guarantee the party prosecution; secondly, the court must improve work efficiency. To meet the prosecution, the court must accept. The use of the term is "must", the court without the other. After the case review, in line with the conditions of prosecution, shall be filed within seven days, and notify the party concerned; third, after investigation, the court complaint does not meet the requirements, not verbally notify the parties shall not be filed, but should be in receipt of the complaint within seven days from the date ofRuling in writingNot accepting the case, the protection of the parties appeal rights.

 

Two, non litigation mediation before the front, the plaintiff has the right not to mediation

The new law provisions:

Article 122nd the parties prosecute to the people's court for civil disputes, mediation, conciliation, the parties to the mediation except.

Litigation and mediation mechanism, is to provide a communication problem solving platform to "harmony" culture for dispute resolution, in practice actually played a good social effect. But in the case, also can appear mediation program. Especially the divorce case, because the family internal contradictions, the court is generally in the case before the two sides lawsuit before mediation organization. Of course, the court is based on seeking the views of the parties on the court, and some will make the parties signed a consent form, according to legal provisions of mediation shall be carried out in the party under the principle of voluntary.

The amendments, big background is also mediation in litigation, the mediation of law. The case before the court mediation, need to have two conditions: one is suitable for mediation cases, case as family disputes in divorce cases, the facts are clear, the dispute is not the case, the pre litigation mediation, bury the hatchet, also is not a good thing; the two is the parties do not refuse mediation, the parties to the mediation cases, the people's court shall put on record, no pretrial mediation. Therefore, this provision does not mean the mediation, mediation program, marriage parties have refused to mediation before litigation rights.

 

Three, to avoid the system more closely, more impartial trial

The new law provisions:

Article forty-fourth of 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.

Judicial personnel who accept the parties, agents ad litem, treat or gift, or in violation of the regulations meet with the parties, agents ad litem, the parties shall have the right to request him to withdraw.

The judicial officers have the acts mentioned in the preceding paragraph, shall be investigated for legal responsibility according to law.

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

Circulating in people with such a word: "the lawsuit is a relationship," we receive the marriage parties in the case, the first problem in others is not legal, but ask us and so the judge Is it right? Students, so it doesn't matter in court. Social causes this to happen we do not discuss, indicating the existence of problems and loopholes from procedural legislation.

The new civil procedure law in the aspects of the revised and improved, the avoidance system design more careful. One is the new increase "provisions of the judicial personnel to avoid", two is to avoid the situation and reasons for the increased judicial personnel and party litigation agent near relatives or other relationship (such as classmates, friends, colleagues or have a grudge dispute etc.), may affect the fair trial, should be avoided. Three is the provisions for trial personnel to accept a treat or gift, meeting in violation of provisions, the other party shall have the right to request him to withdraw, and in violation of the provisions of the provisions of this trial will be held liable.

 

Four, citizens agent is cancelled, the legal services specification

The new law provisions:

Article fifty-eighth party, legal representative may entrust one or two persons to represent them in the action.

The following persons may be entrusted as an agent ad litem:

(a), legal service workers at the basic level;

(two) close relative of a party or the staff;

(three) the parties communities, institutions and relevant social groups recommended citizens.

According to the original law stipulates, ordinary citizens leave of court agreed agency of civil litigation. This amendment mainly consider someone charging to citizenship agency cases, and it does not have the professional legal knowledge and professional skills, not really protect the litigation rights of the parties. Especially in case of marriage, the parties in the marriage failed in the whirlpool, more likely to be a lawyer banner to attract business "fake lawyer" confuse cheating, spend injustice money not to say, the case to do in a complete mess, finally make the already broken heart hurt again. The new law has abolished citizens agent, is a kind of progress in the legal system, is in a dispute between the parties.

Marriage the parties can entrust lawyers, grassroots legal service workers, entrust relatives as their litigation agent include: parents, children, siblings, grandparents and maternal grandparents. If the parties wish to entrust his other relatives and friends as agents, may need to be recommended by their own communities, neighborhood committees, villagers' committee or other social groups, performing this procedure after the other relatives and friends can be as an agent in litigation.

 

Five, add the withdraw of the third person, debunking false litigation veil

The new law provisions

Article fifty-sixth (paragraph third) 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 the civil rights of the date of injury, 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.

In recent years the divorce case, one of the parties in order to achieve manufacturing debt, transfer of funds, many property etc, in one of the spouses is not informed, were colluding with the outsider, secretly brought folk lending, confirmation, equity transfer to litigation in other courts, the malicious collusion in the court hearing directly reach a mediation agreement civil mediation book issued by a court, or deliberately does not affect non focus on the dispute over the litigation request, the court. Thus through legal procedure, through mediation or judgment form confirmation during the marital relationship exists huge amounts of debt, or confirm a major joint property of husband and wife already belongs to all the others and has been carried out.

The entry into force of the court verdict and civil mediation, res judicata, divorce trial judges sometimes obvious that the party making cases for malicious prosecution, but because there is no legal basis, often is in accordance with the effective judgment or mediation book, make a determination of the relevant facts, have a significant impact on the other the interest of one of the parties. For this kind of malicious litigation, although from the Supreme People's court to the Supreme Court of Shanghai, the Supreme Court of Zhejiang province has made relevant regulations, take measures, but due to the legislative level restrictions, the effect is not ideal.

The amendments, the reference and the experience of international legislation, the establishment of the important system of the withdraw of the third person, the malicious lawsuit interest in divorce cases the aggrieved party is an effective way to protect their rights. According to the new law stipulates, divorce cases due to a party and the third party colluding malicious litigation against the other party's legitimate rights and interests, as the party violated to mention the withdraw of the third person, must meet the following three conditions:

1, because of their own reasons not attributable to the fault of the failed to participate in the proceedings. What is called "not attributable to the fault of their own reasons"? That they do not know or not know malicious litigation, or although know but because of earthquakes and other force majeure cannot take part in the proceedings. If in a divorce case party knows one spouse from outsider complicity in litigation, was able to participate in the litigation does not attend, let these results occurred, then it will lose the ones litigate rights.

2, need to have evidence to prove that the error in the divorce case of one of the spouses and outsider collusion action legally effective judgment, civil mediation book part or all of the content, and the damage of their own civil rights.

3, aggrieved party filed a third revocation litigation period is six months, self knows or should know that his civil rights being infringed date, this period is the period expired, will lose this right, and not because of any reasons and suspension, interruption or extended.

The jurisdiction court lawsuit, the people's court verdicts, is the original ruling or civil mediation book have been made. The people's court to initiate proceedings, that revocation litigation claim, make a new judgment or ruling, change or cancel the judgment, ruling or civil mediation book. Identified claims can not be established, the prosecution dismissed. The parties have the right to.

The new civil procedure law in the establishment of the withdraw of the third person at the same time, also provides for the false, malicious prosecution tort litigation shirking behavior of judicial punishment and criminal punishment measures.

 

Six, add the act preservation system, will effectively curb violence

The new law provisions:

100th of the people's court may if a party's acts or 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 actions or prohibit it to make certain behavior; the absence of such application, the people's court can decide to take protective measures when necessary.

The act preservation, is refers to the people's court for a ruling party, shall be ordered to make certain behavior, or forbid it to make certain behavior, prevent the parties are being implemented or will implement a behavior to apply to cause irreparable damage. In the case of divorce, domestic violence against infringement, Canada, America state-owned "injunction" system. Before this law, China's legislation in this area is still a blank. The National People's Congress in the model overseas legislation foundation, summarizes the maritime injunction and intellectual property law injunction before experience, in parallel with the property preservation system, established the act preservation system in civil litigation, providing a powerful legal support and guarantee for the protection of vulnerable marriage family case party.

Combined with the concrete practice of divorce cases, a party may apply for the preservation of act mainly includes two aspects: one is the one party against the implementation of domestic violence, the victim may apply to the court for violence, a party to immediately stop the infringing act, prohibit violence, in order to prevent the minority party more hurt; second, is for both sides to strive for the underage child custody, the custody case, one spouse may take the transfer, conceal the underage children, thus affecting the court support belonging to the children, need to immediately stop this behavior, the other party may apply to the court for preservation of act, banned the party make transfer, conceal the underage children's behavior.

The act preservation law enforcement power, some people may have different ideas or questions, the court ruled that the preservation of behavior, the respondent did not stop the violence tort behavior, or will the children were hiding how to do? According to the law, because the preservation upon immediately and execution, refuse to perform, a court can take measures such as fines, detention, if the circumstances are serious, the execution preservation ruling party will constitute the crime of refusing to execute judgment, shall be investigated for criminal responsibility. At the same time, the judge can completely according to circumstances, is not conducive to the applicant the verdict in the final judgment of divorce.

The party bringing the act preservation time should be in the course of legal proceedings, the case had been filed into the stage of the proceedings. In an emergency situation, the need for behavior preservation in litigation before, because there is no legal basis can not present before litigation preservation application. It also needs to further improve the next modification, or looking forward to the Supreme People's court through judicial interpretation of a breakthrough at the operational level.

 

Seven, the appraiser mechanism, expert witness inquiry was magical

The new law provisions:

Article Seventy-eighth the parties disagree or the people's court that his testimony necessary for the appraisal, the appraiser shall appear in the court. After the people's court shall notify, identification of refusing to testify in court, expert opinion may not be used as the basis for ascertaining the facts; pay appraisal cost of the parties may request the return of appraisal cost.

Article seventy-ninth the parties may apply to the people's court notice with specialized knowledge appearing in court, comments made on identification of the expert opinion or professional problems.

In the marriage and family cases, requires specialized agencies to identify generally. If the divorce case, household division case involves assessment of property value determination, corporate value evaluation and financial audit, may involve paternity cases, claims and liabilities involved in handwriting identification of child custody cases, some cases may involve behavior ability appraisal and so on. In the past, upon application by a party, the court commissioned the appraiser qualification identification. Because of the lack of a party or agent for the identification of relates to the field of expertise, for a written report identification issued, in general it is difficult to express deep examination opinions. Sometimes requires expert witnesses, expert witnesses rarely also accept testimony.

The new law of expert witness system is perfect, formed the restriction mechanism. In the two case, the appraiser shall appear in court: one is the parties disagree on expert opinion, the appraiser shall appear in court to receive the inquiries of the parties concerned and ask questions, answer the controversial issues; second is the people's court that authenticators shall appear in court, the appraiser shall appear in court, asked to accept the. If the identification of people refused to appear in court as a witness, will produce two legal consequences: on the one hand, issued identification opinions cannot be identified as the relevant facts, on the other hand, identification of costs of identification in charge payment request the return of the shall return.

Expert opinion for identification were issued, due to the restriction of the professional field, such as medicine, finance and accounting, biology, finance, construction, design and so on, any person including judges and lawyers, not all proficient in. Therefore, the new civil procedure law provisions, the parties may apply to have specialized knowledge as the expert assistant to appear in court, a specialized knowledge of cases related to trial in court and provide instructions, special problems and identification of the identification of the details to appraisers for questioning, published in professional opinions on the identification process and conclusion, for a court the reference, in order to ensure a fair and reasonable decision.

 

Eight, small action speed tailoring, a trial of high efficiency

The new provisions:

In trying a simple civil case in accordance with the law 157th prescribed in the first paragraph of article 162nd 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 30%, execute a court.

The revised law stipulates, all cases were unified trial court system, the trial period long, a simple case can sometimes be delayed for a year or more, a waste of judicial resources, the other party has increased litigation economic cost and time cost of the parties. The amendment of civil procedure law, adding a small amount of cases of first instance, application of simple procedure in the implementation of "system of one trial", reduce v.tired, fairness and efficiency. Marriage and family cases, recourse maintenance, alimony, maintenance and other standard volume is small, the identity relation clear rights and obligations, in simple cases, practical procedure speed tailoring, more convenient, fast, economical way to solve disputes.

 

Nine, the foreign service shrinkage time, improve efficiency by V. tired

The new law provisions:

Article 267thThe people's court litigation documents on has no domicile in the people's Republic of China within the party, can adopt the following methods:

......

(six) the law of the country where the addressee permits service by post, may be served by post mail, since the date of three months, the receipt of no return, but according to various circumstances justify the assumption that has been delivered, the expiration of the period of service shall be deemed the date;

(seven) by fax, email to confirm the person to be served on all the way;

(eight) cannot be served by the above methods, served notice, since the date of the announcement over three months, the document shall be deemed to.

   In judicial practice, the foreign-related cases without time limit requirements, one of the main reasons is the delivery time of long and complex procedure. I was now in the hands of foreign inheritance cases handled, in October this year, put on record, time trial in June next year, at present also worry that delivered not to, may want to notice, if according to law before the amendment, the announcement time takes 6 months, after the trial and verdict, also need to be served by public announcement, need 6 months. If the appeal of words, but also a round of second instance procedure, so down, this case is not a year and a half to two years will not have results, for the parties concerned, this time and efficiency is a torment. Fortunately, the amendment of civil procedure, the foreign service time and the way of the new reform, mail delivery and service by public notice time uniform provisions for three months (according to the relevant provisions, the Supreme People's court for the accused in China, Hong Kong and Macao, notice served time for three months already implemented), and may you can also take email, fax is sent, time will be greatly reduced.

 

Ten, the appeal period reduced to six months, long the complaint without basis

The new law provisions:

The 205th parties to apply for a retrial, the judgment, ruling shall take legal effect within six months are presented; the 200th article of this law the first, third, twelfth, thirteenth regulations, self aware or should be made within six months to know the day.

209th 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.

According to the above provisions, the parties to a legally effective judgment, ruling is still not satisfied, need to put in the judgment, ruling shall apply for retrial within six months; for the following four cases and apply for a retrial, self aware or should be within six months from the date of application to know: (1) the discovery of new evidence, to reverse the original judgment, ruling; (2) found that the original judgment, ruling the main evidence for ascertaining the facts is false; (3) according to legal instruments to make the original decision, ruling is revoked or changed; (4) the trial of the case with corruption and bribery, play favouritism and commit irregularities, perverting the law behavior the.

In order to solve the multi complaint, the new civil procedure law to apply to the court to apply for retrial and procuratorate protest were coordinated. The parties to a legally effective judgment, ruling or letter of mediation, should first apply to the people's court for retrial, in the three case can apply to procuratorate protest: one is the court rejected the application for retrial, the two is the court fails to make a decision, the three is already a retrial once and make effective judgment, ruling significant errors. At the same time, the provisions in order to solve the problem of repeatedly pestered cases, according to the law, the procuratorate has the party's application for a decision, no longer repeated applications.

New regulations on the application for retrial, marriage parties also need to pay attention, otherwise, will lose the right to limit.