The provisions of the new "Civil Procedure Law" of the new litigation system

 

   [Reproduced by]The NPC Standing Committee on the2012Years8Month31Amended and start tomorrow "Civil Procedure Law", the establishment of nine new litigation system, namely the case filing system, public interest litigation, the outsider, the withdraw of the small claims procedure, the real right for security procedures, the mediation agreement judicial confirmation procedure, retrial review procedures, supervision, law enforcement supervision the provisions, but compares the principle. The Supreme People's court in the corresponding judicial interpretation, for the implementation of these action system to provide targeted reference, since the2012Years12Month6Date to14In the "people's court" with high intelligence pseudonym published as nine articles, focusing on the possible nine new litigation system in the judicial practice problems of carding, analysis, research, and puts forward some suggestions, to test and improve. Worthy of collection.

 

And for a small procedure, on the understanding of the

 

Modify the response of the Civil Procedure Law of the people"Justice for the people"The new look, a small claims procedure. Small claims procedure of wide coverage, summary trial, a court in litigation, etc., in the convenient client reduce litigation costs at the same time, it surely will bring new challenges and opportunities of China's civil trial work.

The significance of carrying out a small claims procedure

Small claims procedure can help people access to justice. In a society ruled by law, regardless of the amount involved in the dispute, the size, the parties have the right to appeal to the court, the request to obtain equal judicial protection of judicial relief. The civil procedure law, equal protection of the parties to appeal is manifested in two aspects: one is the procedure rights, the parties in civil procedure and how to safeguard litigant's litigation; two is the procedure safeguard, namely security parties have an opportunity to court, access to justice,"Access to justice". For the dispute cases of interest, the parties may wish to apply the ordinary procedure is relatively complex, simple procedure and pay high litigation costs. But for the small controversial in daily life, the parties may be due to the lack of legal knowledge or litigation cost is higher than the interest of litigation and the rational choice to give up litigation. At present, with the acceleration of social and economic transformation, the small scale of disputes between the masses continue to increase, the existing procedure legislation and judicial interpretation is increasingly showing a lag. A lot of small claims disputes, the people would not costly litigation, litigation procedure based on complex reasons to submit court. The small claims procedure with its more simple program design, the low cost of litigation and judicial process convenient and efficient, greatly facilitate the parties to litigation on the one and only, with advantages of small claims disputes.

Small claims procedure helps to reduce the cost of litigation, judicial resources reasonable matching. With the acceleration of social transformation, the number of all kinds of civil disputes growing. The increase in litigation, embodied the people's awakening; on the other hand also makes the litigation burden increase. Therefore, selection of parties to the small claims cases procedures must take into account the relationship between input and output of the litigation cost. The program design and the procedure is simple, to meet the needs of the parties to the minimum cost of litigation, the most rapid resolution of disputes needs.

Any country, in a certain period of time the judicial resources are always limited. Therefore, must use the limited resource, realize the maximization of profit of the judicial system--The maximum settlement of disputes. If you continue to apply the ordinary procedure and summary procedure of the small case, will inevitably cause a waste of judicial resources, makes the judicial resources can not be more into the more complicated civil disputes, which eventually led to the allocation of judicial resources imbalance. The small claims procedure of first instance being the final trial, the trial, simplified free time, time compression unique system design, serve"Fast, fast, fast knot"This theme, can effectively save the judicial cost, convenient, timely, and effectively safeguard the legitimate rights and interests, the realization of social fairness and justice.
Two, the implementation of small claims procedure should pay attention to the problem
Because the number of application in judicial practice of civil trial procedure will account for a large proportion of the total amount of first instance civil cases, and the modification of the Civil Procedure Law of the small claims procedure and only provides a provision, the careful consideration, active and stable both started appropriate legal procedures. Specifically, need to pay attention to the following several aspects of the problem.
(a) the scope of cases about the small claims procedure. Small claims procedure is then simplified simple procedure, applicable object is the relationship between the facts are clear, the rights and obligations are clear, less controversial, subject to the provinces, autonomous regions, municipalities directly under the central government last year's annual average wage of employees below thirty percent civil cases. We think, in case the following single payment of money to meet this requirement shall apply: (small claims procedure1) contract disputes, disputes, the loan contract leasing contract disputes and contract disputes (2The identity relation clear,) only exists controversy in the pays the amount, time of alimony, maintenance, alimony dispute cases (3) liability, liability disputes of motor vehicle traffic accident of the plaintiff loss amount determination and other personal injury liability disputes (4For the supply of water, electricity, gas), heat (contract dispute cases5Bank card dispute cases (;)6Clear) labor relations, the labor dispute cases controversial only payment amount and payment at the time of labor remuneration, work-related injury medical expenses, economic compensation or damages cases on (7Labor Relations) clearly, labor contract dispute cases controversial only payment amount and payment at the time of labor remuneration on (8Other payment disputes). At the same time, to the following cases, temporarily can not apply: (small claims procedure1) personal relation dispute, property rights dispute case involving (2Additional party) or counterclaim cases (3) relates to intellectual property cases.
(two) the amount of small claims procedure standard. Since the 162nd civil law does not explicitly the provinces, autonomous regions, municipalities directly under the central government on the average annual salary of urban employees has not introduced how to determine the limit on the amount of accepting the case, so it can only refer to the recent annual standards. We suggest that, the Civil Procedure Law revised2013Years1Month1Began implementation, in the provinces, autonomous regions, municipalities directly under the central government2012Urban units in the average annual salary of urban employees amount before the announcement, according to the provinces, autonomous regions, municipalities directly under the central government has announced the city2011Urban units in the average annual salary of urban employees amount as local small claims procedure suitable case amount. The provinces, autonomous regions, municipalities directly under the central government2012Urban units in the average annual salary of urban employees after the announcement of the amount, according to2012The standard calculation.2014Year after year and so on. As for2013Years1Month1Has been for summary trial but a pending case, the stability of the process based on the consideration, in the implementation of the new civil procedure law may apply summary procedure trial continues.
(three) the interpretation of small claims procedure. We believe that, in determining the appropriate legal proceedings after the case, apply in general can be in before the court in writing "small litigation notice", informing procedure to the conditions of the parties, the trial organization, mode of trial, a court of retrial application right, such important matters, and require the parties to the litigation notes written "" sign. The small claims procedure of objection to the parties, if the objection, can be ruled by general summary procedure provisions or the case transferred to ordinary procedure. If the objection is not established, the court rejected the objection application.
(four) on the defense period and the burden of period of the parties. We think, the parties to the case, the people's court may inform the parties to abandon the respondent in the period and the time limit for adducing evidence consequences and the parties confirmed to give up after, immediately trial. If the parties clearly indicated that he did not give up the time limit for adducing evidence, the parties may agree the time limit for adducing evidence, but the agreed period of not more than10Day. In the absence of such agreement, the people's court shall appoint not more than10The time limit for adducing evidence day. As has been giving up the period of the party proposed the extension of application, are generally not permitted. The court after the discovery of new evidence, can decide whether to allow the parties submitted in accordance with the relevant provisions. Such as the extension of the burden of proof cannot be concluded within one month to apply because of not giving up the deadline of the parties, is approved, can be extended to three months, if necessary, can be transferred to the ordinary procedure. If the parties expressly not to abandon the respondent period, may be in the ordinary procedure15Day defense period basis, depending on the circumstances, shortened to7Days.
(five) the trial problems on the small claims procedure. We believe that, for small claims procedure to try a case, notify the parties concerned the court can not be served with a summons, specific written material but notify the plaintiff and defendant, the court should have informed the time, place the parties into the volume. In the notice of hearing, may require the parties to carry all the evidence and notify the witness in the court, and strive to do a session, the court verdict, the court judgment is served by.
In the trial, the parties have legitimate reasons not to appear in court, agreed to by the other party, be the trial use of video technology. The trial may not be the court investigation, court debate, the final statement and court mediation order restrictions, can flexibly arrange the questioning of witnesses time. If the parties apply for the use of video technology, questioning the witnesses for legitimate reasons, may be allowed to.
In addition, applicable to small claims procedure may not be open trial, three days before the hearing, the parties announced name, time and location of the court session. As for the time of the session, you can according to jointly apply for the parties and approved by the people's court agreed, was sitting in the evening, rest days or holidays. Appropriate legal proceedings cases also to the work site, domicile or the place of the court dispute.

(six) on the small claims procedure transformation towards other programs. We believe that, taking into account the trial procedure of civil case apply summary procedure applies to ordinary rules than to hear a case is more simple, it is recommended to register within one month from the date of the law case. Cannot be concluded within one month, can according to the following circumstances: as a result of process scheduling case caused a month can not be accepted, approved, may extend the time limit to three months; if the court found that the parties involved in personal relations disputes, property rights disputes and other disputes outside of the payment of money the complexity of the case, the small claims procedure, not applicable, approved, can be ruled by general summary procedure provisions or the case transferred to ordinary procedure. According to the summary procedure, the general provisions, such as the two sides did not provide new evidence and the case has been heard, without further hearing; case transferred to ordinary procedure, a collegial panel shall be formed, the re trial, went on trial.
(seven) the judgment about the small claims procedure. We believe that, for small claims procedure to try a case, can simplify the judgment documents, records the names of the parties, only in the judgment, the facts of the case, the basic reason points, payment and deadline. When conditions are ripe, can also direct the elements of adjudicative document filled into the unified production form, or making only records the participants in the proceedings the basic situation and the referee in the way of further simplifying judgment writ. In order to ensure that the judgment is simplified into effect, the higher people's court may suit one's measures to local conditions, the production of all kinds of legal documents concerning the application of the small claims procedure style, people within the jurisdiction of the court and sent the court issued by reference to the use of, the authority and stability increase judicial activities.

(eight) the retrial problems on the small claims procedure. We believe that, if the application for retrial parties are not satisfied with the application of small claims procedure from the referee, contradiction"Dissolve in base, dissolve in the local"The starting, through active interpretation, and actively guide the way, try to make the choice to the people's court for retrial, implementation"To serve the whole situation"And"Justice for the people"Harmony and unity.

(nine) the mediation problems on the small claims procedure. We believe that, for the case of small claims procedure underlying the amount is small, the dispute mediation is, the higher the probability of success. Therefore, in the case of small claims procedure is applicable, we must always adhere to"Giving priority to mediation, mediation and judgment"The work principle, as far as possible to the mediation by court, the trial court before, after the link guide, organize the parties. In the process of mediation, in addition to follow the voluntary, the principle of legality, but also pay attention to the legitimacy of the mediation method, flexibility and operability, and strive to achieve the end the case, give full play to the function of lawsuit mediation, to ensure the unity of legal effect and social effect.
Small claims procedure as a new pattern of civil litigation, the implementation is one instance, involves the vital interests of the people, high degree of social concern. Therefore, to uncertainty may appear on the appropriate legal procedures factors have a clear understanding, and advance the implementation of targeted deployment. The implementation of small claims procedure, should focus on doing the following work: firstly, the higher people's court to organizations within the jurisdiction of the grassroots people's court and sent the court judge understanding and application of small claims procedure for studying, training; second, according to the actual trial, applicable to the small claims procedure to implement the funds, materials support; third, emergency plans may be prepared in advance for the small claims procedure; finally, the first batch of the judge senior judges to advance the selection of style and honest, strong business capability, high level of mediation, familiar with the local social conditions and public opinion as the applicable procedure trial, pilot. After a period of practice, the accumulation of experience, and gradually expand the scope of the judges small cases. Small claims procedure as a new system, just begun, will inevitably encounter some difficulties and resistance. The people's courts at all levels must be in place, staff in place, understanding the material in place, plan, ensure the small claims procedure implementation work a good beginning, a good first step.

 

 

And two, about the civil public interest action understanding

 

The new civil procedure law the fifty-fifth regulation:"The pollution of the environment infringement of the legitimate rights and interests of consumers, many damages social public interests, the law of the relevant organs and organizations can bring a lawsuit to the people's court."This is the law for the protection of a new system of special provisions of social public interest, namely, the system of civil public interest litigation. The new civil procedure law to solve the constraints of the civil public interest litigation"Bottleneck"The problem--The qualifications of the plaintiff, a dance for joy. Creation of the civil public interest litigation is to implement the important embodiment of Scientific Outlook on Development in legislation in our country, is an important aspect of the innovation of the social management. The provisions of the new civil procedure law principle, just to provide a legal basis for the creation of the litigation system, and the rules of the implementation of specific needs further exploration in judicial practice. In this paper, the understanding of the civil public interest litigation and legal application and puts forward some suggestions, for your reference.
One, about the scope of application

Scope of application of the new civil procedure law fifty-fifth stipulation of civil public interest litigation is"The pollution of the environment infringement of the legitimate rights and interests of consumers, many damage public interests". This enumeration and generalization rules, mainly has two meanings: one is the pollution of the environment, against the legitimate rights and interests of consumers act only in damage to public interests, to safeguard public interests lawsuit based on. If the pollution of the environment, against the legitimate rights and interests of consumer behavior, direct requests to protect individual interests, do not belong to the scope of this article of public interest litigation, and belongs to the ordinary civil litigation that the private interest litigation. The core of public interest in public, to no specific interests of the majority. Although the representative litigation involving many parties, but the victims can be identified, lawsuit purpose is to safeguard the personal interest, it still belongs to the private litigation. Two is the public interest litigation cases including but not limited to"The pollution of the environment","Against the legitimate rights and interests of consumers"The two category of cases, the scope of public interest litigation can also according to the practice of development steadily expanding. In view of the civil public interest litigation is still in the initial implementation stage, the scope should be limited to the current temporary environmental pollution, against the legitimate rights and interests of many consumers in these two kind of situation is appropriate.

Two, on the subject of litigation
The new civil procedure law the fifty-fifth regulation the prosecution of public interest litigation subject"The law of the relevant organs and organizations". About the"The law"The limits of the problem, there are two different points of view. The first kind of view"The law"Both limitations"Organ", limit"The relevant organization"The second view"The law"Limited"Organ"Without limitation"The relevant organization". Comprehensive analysis of related legislation and legislative interpretation of the legislative intent of the workers, not stressed"The relevant organization"Shall be prescribed by law, but that"As for what the organization for public interest litigation, can make further stipulates in the formulation of relevant laws, but also gradually in judicial practice."We are in favor of the second viewpoint, think"The relevant organization"Not affected by"The law"Restrictions, but should be associated with the prosecution.
About"Legal authority"The meaning, can be filed public interest litigation authority, to have a clear legal basis. The basis not only requires the establishment and function of organs stipulated by law, the right to initiate public interest litigation should be stipulated by law. From the current law, the public interest litigation authority, only "of the people's Republic of China Marine Environmental Protection Law" the provisions of the second paragraph of the ninetieth"In accordance with this law, exercise the power of supervision and management departments of the marine environment".
About"The relevant organization"The scope, to the people's court in the judicial practice and gradually explore determination. In view of the lack of practical experience, technical force is uneven, relevant social organizations of the lawsuit ability, in order to ensure the maintenance of social harmony and stability and order, to effectively carry out public welfare lawsuit, the people's court at that first principle of accepting the civil public interest litigation related organizations have the following conditions mentioned:1Registered and established according to law and nonprofit environmental protection organization or association of consumers;2In accordance with the Constitution in real long-term specialized in environmental protection or the protection of consumer rights and interests of public welfare undertakings;3There is a full-time environmental protection, consumer rights and interests protection of professional and technical personnel and legal staff10People above;4The lawsuit in accordance with the provisions of the articles of association of the purpose, scope of business, service area. If the "PRC consumer protection law," "the people's Republic of China Environmental Protection Law" after revising, made the relevant provisions, and in accordance with the special provisions of the admissibility.
At the same time, we suggest, 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. Because "in the second paragraph of the people's Republic of China Marine Environmental Protection Law" ninetieth 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.
Three, about the jurisdiction of the court
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.
In order to ensure the unity of the scale, it is necessary to implement centralized jurisdiction of civil litigation, namely, in respect of the same damage public interests, the same plaintiff or plaintiff to two or more different with the civil public interest litigation jurisdiction of the court, the people's court shall file the case to the people's court to file the.
Four, about the conditions of admissibility
To determine the admissibility conditions of public interest litigation, to locate the accurate grasp of the civil public interest litigation. The civil public interest litigation is a judicial act, to distinguish the administrative behavior. Belonging to the scope of administrative matters within, the people's court should not be accepted, the parties may apply to the relevant organ for settlement. The administrative organ to bring the civil public good lawsuit, the people's court to review whether it is running out of administrative enforcement measures prescribed by the laws and regulations, if the administrative organ can also through the exercise of administrative powers to sanction violations, safeguarding the public interests, the people's court should not be accepted. Secondly, public interest litigation provisions of the civil procedure law belongs to civil litigation, administrative litigation should be distinguished from. Clients as a result of administrative inaction or the decision on such matters as the lawsuit, administrative litigation, the people's court as a civil litigation cannot accept.
In order to prevent the abuse of litigation, the people's court review of the admissibility of civil public interest litigation, in addition to the prosecution whether people have the new civil procedure law article 119th (two) to (four) provisions of the conditions, should also pay attention to according to the provisions of the new civil procedure law article 121st of the complaint, provide preliminary evidence to sue environmental pollution or infringe upon the legitimate rights and interests of numerous consumer infringement behavior and its harm to the public interests of the society, and explain the rationality of its lawsuit request. Do not have the conditions for prosecution, shall be ruled inadmissible.
Five, about the number of the plaintiff's treatment
If the number of the plaintiff for the same damage public interests lawsuit, in order to save judicial resources, improve judicial efficiency, maintain the unity of judgment standard, we suggest that in general should be taken in the merger trial solution, concrete can be divided into two kinds condition processing:1The people's court civil public welfare lawsuit legal organs or relevant organizations, the provisions of other laws or relevant organizations and authorities in respect of the same damage public interests, against the same defendant present the same or similar claims, the people's court should not be accepted.2 The law of organs or organizations concerned with the same environmental pollution accident, put forward different requests for the same person responsible for prosecution, prosecution or respectively different responsible person, in accordance with the merger trial conditions, the people's court shall adjudicate.
Six, about the plaintiff's claim
In principle, the civil public interest litigation plaintiff can be based on "the people's Republic of China Tort Liability Act" provisions of article fifteenth, request the person to assume responsibility for the cessation of the infringement, hinder, elimination of danger, restitution, compensation for losses, excluding. At issue is the civil public interest litigation the plaintiff could claim damages. From the "Regulations of the people's Republic of China Marine Environmental Protection Law" in article ninetieth, civil litigation plaintiff is may request compensation for loss. However, the nature of the civil public interest litigation the plaintiff cannot obtain expedience decided by litigation. Proceedings the plaintiff on behalf of the state, the people's court responsible person shall assume the liability of compensation, to pay the plaintiff claiming indemnity after Treasury together. The people's court for execution on the judgment, the people's court shall demand for financial department designated accounts receivable.
Seven, about the lawsuit mediation
In the process of legislation of civil public interest litigation, about Civil Litigation Intermediation, has been more controversial. Some suggestions based on the mediation may harm the public interest, that the civil public interest litigation should not be mediation. We think, the mediation system itself requires both public interest litigation or private interest litigation shall not harm the public interest; public interest mediation can make timely fill, must not harm the social and public interests. Therefore, the premise of principle in does not harm the public interest, public interest litigation can still apply conciliation.
Eight, about the cost of litigation
The idea that the people's court shall allow civil plaintiff in public interest litigation from the fees for accepting the case, the preservation of the application fee, the cost of litigation, to encourage people to safeguard the public interest; there is also the view that the Civil Public Interest Litigation Plaintiff still need to pay the cost of litigation, in order to prevent the abuse of litigation. Payment of litigation costs (including slow relief) is prescribed by the State Council unified, the Executive Council in2006Years12Month19Released "means to pay the cost of litigation". Pay on the civil public interest litigation costs, the need for further research, by the competent administrative department of the state to decide whether to make special provisions. Before the special provisions not issued in the country, the civil public interest litigation costs should be unified to implement the State Council "means to pay the cost of litigation" general provisions.
Nine, about the other procedures applicable law
For other questions of civil public interest litigation, such as the specific procedure, rules of evidence, preservation application and guarantee, execution of the judgment, without the introduction of special provisions, should as far as possible in accordance with the general provisions of the new civil procedure law. The civil public interest litigation related to pollution of the marine environment, also should apply special procedures "related regulations of the people's Republic of China Maritime Procedure Law".

 

 

Three, about the mediation agreement judicial confirmation process of understanding and Application

 

The new code of civil procedure of the mediation agreement judicial confirmation program content in the special program. Although this part only two articles, but to promote the diversification of the dispute settlement mechanism has the important significance of development. In the application process, there are also some problems in need of further explanation.

One, the important meaning about the mediation agreement judicial confirmation system

New civil procedural law and the establishment of this system lies in the:

One is to promote the people's court to participate in social management, to resolve contradictions and disputes is of positive significance. In the social transition period between high incidence of the situation, the urgent need to court to give full play to the functions in a wider range of areas, participate in and promote the innovation of social management.

The two is to establish a diversified disputes settlement mechanism provides a strong guarantee. The people's court through the recognition of the mediation agreement, the rational allocation of resources to solve the dispute, to construct multiple dispute science, system, complete the settlement system, effectively safeguarding the legitimate rights and interests of the parties, and promote the social contradiction.

Three is the initiative reflects the people's courts actively respond to the social changes and the needs of the people. The judicial confirmation system to provide more choice of the alternative dispute resolution channels for the masses of the people, will help reduce the cost of litigation, so as to minimize the social cost of dispute resolution.

The four is to absorb and consolidate the diversification of the dispute settlement mechanism reform. According to the central deployment, the Supreme People's court summary court reform experience of judicial confirmation on the mediation agreement, to2009Promulgated the "opinions on contradictions and disputes, establish Connects Litigation and non litigation settlement mechanism"(Several opinions hereinafter referred to as ""), established the judicial confirmation system, and reflected in the "people's Republic of China People's Mediation Law". The amendment of civil procedure law increases the judicial confirmation process, is the legal settlement mechanism reform of the diversified dispute, marking the contradictions and disputes Connects Litigation and non litigation settlement mechanism reform has entered a new stage of development.

Two, about the judicial confirmation process of jurisdiction over cases

The judicial confirmation case refers to the civil rights and obligations between the parties to the dispute, the people's mediation organization established according to law and the other is reached through mediation mediation functions have the nature of civil contract agreement, both parties jointly apply for confirmation by the people's court mediation agreement to the legal effect of a new type of case.

On the jurisdiction of judicial confirmation, according to "opinions" and "the Supreme People's Court about the regulations of confirmation process of people's mediation justice"(Several provisions hereinafter referred to as "")Provisions, the parties may choose the party in a written mediation agreement domicile, mediation agreement, mediation agreement is signed, the subject matter jurisdiction grassroots people's court at the domicile, but shall not violate the provisions of exclusive jurisdiction. The people's court and reach a mediation agreement in mediation organization registration committee sent people's mediation committee, mediation, the parties to apply for judicial confirmation, under the jurisdiction of the people's court appointed by the. Under normal circumstances, the judicial confirmation case in the mediation organization at the basic level people's court jurisdiction. The new civil procedure law basically absorbed the judicial reform of these achievements, clearly stipulates the judicial confirmation under the jurisdiction of the court case of the basic people's court at the place of the mediation organization. Of course, this provision does not preclude the parties jurisdiction by agreement in the premise of not violating the exclusive jurisdiction of the. The court with the jurisdiction of the court appointed appear inconsistent in the individual case, the court also can through the first filing, commissioned after, and then into court mediation way, to avoid the inconvenience of jurisdiction.

Three, about the judicial confirmation case application and acceptance of

At present, need to solve the following three problems:

One is the judicial confirmation case application program. Mainly includes the body of application, the application deadline, application form, submit materials etc.. According to the new civil procedure law 194th and the Supreme Court judicial interpretation of the relevant provisions, the parties shall jointly apply to the basic people's court that has jurisdiction for the confirmation. One of the parties to apply, the other party to agree, the applications are seen as put together. The mediation agreement is reached, the parties consider necessary, should the mediation organization within thirty days the local grassroots people's court for judicial confirmation came into effect in the mediation agreement. The parties make confirmation, can adopt a written or verbal form. The parties of an oral application, the people's court shall be recorded in writing, and the parties concerned shall affix their signatures or seals. The application, it shall submit the following materials to the people's Court: the judicial confirmation request, the mediation agreement, identity certificate or business license, associated with the mediation agreement of property rights to prove the proof material, the parties to address, contact way, both parties have signed a letter of commitment.

Two is the scope of the mediation agreement application for confirmation. The new civil procedure law the 194th regulation,"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 effective mediation agreement, mediation organization to the basic people's court at the place."There are two kinds of understanding of the scope of application for confirmation of the mediation agreement:A kind of understanding is,Only the people's mediation method and the other by the NPC Standing Committee law stipulates to the mediation agreement may apply for judicial confirmation for confirmation;Another kind of understanding is the,In addition to the provisions of the people's mediation law may apply for confirmation,Clearly defined can be recognized by the mediation agreement and other laws, administrative regulations, local laws, administrative regulations and the approval of the judicial reform programme,Belong to the provisions of the criminal procedure law of 194th civil application scope verification. For example, "a number of opinions" provisions of article twentieth, the administrative organ, the people's mediation organizations, commercial mediation organization, industry mediation organization or other organization with a mediation function mediation between the nature of a civil contract agreement, signed and sealed by the mediation organization and mediation, the parties may apply to a people's court with the jurisdiction of the confirmation of its validity. We believe that, in the current our country advancing the reform of the system of social management, provide sufficient judicial guarantee for the social management situation, especially the big background of rapid advance the reform of Pluralistic Dispute Settlement Mechanism, second kinds of understanding more in line with the legislative intent of the civil procedure law.

Three is the judicial confirmation procedure of accepting cases. The basic people's court received the application for judicial confirmation, shall examine the application for confirmation. The people's court shall not accept the application for judicial confirmation conditions include: first, does not belong to the scope of mediation in civil cases under the jurisdiction of the people's court or not belonging to accept applications; second, confirm the identity relationship; third, confirm the adoptive relationship; fourth, confirm the marriage; Fifth, relates to the people's court for the special procedures, publicity urge the procedure and the bankruptcy proceedings disputes. For the case application, the people's court shall make a decision of rejection within three days, and report to the parties to inadmissible notice. Do not belong to the people's court civil case acceptance range, shall notify the party concerned in accordance with the relevant procedures for resolving disputes; is not under its jurisdiction, the people's court to inform the parties have jurisdiction to apply to the people's court. For the review considered eligible if it decides to accept the application, the people's court shall grant"Adjustable that word"Case number, determine the cause for"For confirming the effect of mediation agreement", and report to the parties to accept the notice. The parties apply for judicial confirmation at the court, the people's court may immediately receive. One of the parties to the court for judicial confirmation, the people's court shall notify the parties consent of the other party to apply for confirmation.

Four, about the judicial confirmation review of the case

At present, the need to focus on resolving the following two problems:

One is about the judicial confirmation case review. On the judicial confirmation case review, what is the form of review, or substantive review, has been controversial in practice. From China's current judicial practice and judicial interpretation, the court review of the mediation agreement is adopted in the form of review and limited physical examination combined, also is the review of the principles of written examination and trial of combined, more in line with the nature of this special program. The people's court accepts the application for judicial confirmation, shall appoint a judge to review the mediation agreement. The judges if the mediation agreement can meet the recognition conditions, in the review of the application of the parties concerned, the mediation agreement, the relevant materials of proof on the basis of confirming a mediation agreement effective ruling. For the complexity of the case or the subject of a case, it shall notify both parties to ask questions, substantive review and investigation of evidence necessary to take.

Two is about the judicial confirmation review cases. The people's court in the judicial confirmation on the content of the mediation agreement procedures in the main review their compliance with the voluntary, legal principles: first, examine whether the mediation agreement violates the principle of voluntariness. Violates the principle of voluntary participation situation including the parties in violation of the true meaning of sign the mediation agreement, mediation agreement, mediation organization or obviously unfair mediator forced mediation or interested, and cases; second, examine whether the mediation agreement is illegal. The illegal situation mainly include those that violate the law or the administrative regulations of the mandatory provisions, against the national interests, social public interests, against the legitimate rights and interests of an outsider, relates to whether to investigate the criminal responsibility, mediation organization or mediators have other acts of serious violations of occupation moral standards; third, review the mediation agreement is clear. One purpose of the mediation agreement that is enforced to the mediation agreement to get a realistic, if the content is not clear, confirm the mediation agreement is not much significance; fourth, review the mediation agreement is damage to the social public order and good customs.

Five, about the judicial confirmation form and effect of case law documents

At present, mainly involves the following three questions:

One is about the judicial confirmation case legal documents in the form of. On the judicial confirmation case legal documents form, there are four different judicial practice in the past, that decision, confirmation, mediation and ruling. "Regulations" provisions of the judicial confirmation of legal documents on case form is to confirm the decision or not confirm the decision. The new civil procedure law stipulates the judicial confirmation of legal documents on case form for the ruling. In the future, the people's court mediation agreement case will no longer use decision, the confirmation form.

According to the new civil procedure law the 195th regulation,"The people's court after the acceptance of the application, after examination, in accordance with the law, that the effect of the mediation agreement, a party refuses to perform or fails to fully perform, the other party may apply to the people's court for enforcement; do not comply with the provisions of the law, the court rejected the request, the parties may change the original settlement agreement through conciliation or mediation agreement reached a new, also may bring a lawsuit to the people's court."Therefore, the judicial confirmation that there are two situations: one is the mediation agreement in accordance with the law, the people's court mediation agreement; two is the mediation agreement does not conform to the law, does not meet the recognition conditions, the people's court shall reject the application. The new civil procedure law provides that the court shall rule to reject the application without ruling mainly consider the mediation agreement is invalid, the people's court shall reject the application, the parties to the mediation agreement and the remedial measures, can change the original agreement or to renegotiate a new mediation agreement. If the parties are unwilling to continue the mediation, or bring a lawsuit to the court. So, the court rejected the request of the parties concerned, is reserved space for the parties to resolve disputes.

Two is about the judicial confirmation order effect. The people's court to confirm the effective ruling or the ruling of rejection of the application, legally binding on both parties after. The party received confirmation that the effective ruling and dismissed for adjudication book, not appeal, also may not apply for reconsideration, nor shall apply for a retrial. This is mainly because the confirmation parties voluntarily proposed, there is no need to be confirmed in the people's Court of justice set up after the appeal, reconsideration or retrial procedure; for rejection of the application, the parties may again through mediation, litigation dispute, the right is not restricted. In addition, the judicial confirmation process belongs to the special procedures, should not be like the general procedure that set up an appeal, retrial procedure.

Three is about the judicial confirmation of cases decided by the legal consequences. The people's court to make a ruling after confirmation, mainly produce two kinds of different legal consequences: a consequence is to confirm the mediation agreement made by a people's court effectively ruled enforceable. If a party refuses to perform or fails to fully perform, the other party may apply to the people's court for enforcement. Here, the need is clear enforcement basis is to confirm the court ruled that the book is not effective, the mediation agreement. Another consequence of the mediation agreement after examination does not comply with the provisions of the law, the court rejected the application of the parties concerned. In this regard, the parties may have two kinds of remedies are available: one is the parties through mediation organization to mediate the dispute, change the original mediation agreement based on voluntary or reach a new mediation agreement on the dispute, and then apply to the court for confirmation after the change or a mediation agreement. Another is that the parties may bring a lawsuit to the court. This procedure is generally refers to the disputes between the parties to the court.

About outsider relief question, can refer to the rules of the new civil procedure law article fifty-sixth the withdraw of the third person executive. In addition, the people's court for judicial confirmation case, because of the special procedures shall apply to the new civil procedure law, not to collect litigation costs is appropriate.

 

 

Four, on the realization of real right for security case of program understanding and Application

 

The real right guarantee is in exchange for direct control of specific property value for the content, in order to ensure the realization of the creditor's rights and set up for the purpose of property. For realizing the real rights for security refers to the debtor does not fulfill the debt, the guarantee real right person by the statutory procedures, the subject matter of security discount, auction, sale and so on, which claims to be the process priority. In order to better protect the legitimate rights and interests of the obligee, the convenience of the real right for security, saves the lawsuit resources, the new civil procedure law added in the special procedure in Chapter fifteenth"Implementation of real right for security cases"One day, made the provisions of the relevant procedures guarantee implementation issues.

Implementation of the provisions on real right for security, China's current general principles of civil law and the guarantee law, the mortgagee and the mortgagor fail to reach an agreement, the mortgagee can only be achieved by a lawsuit to the people's court way. Implementation of real right for security by means of lawsuit, complicated procedures and the time is long, is not conducive to the interests of the creditors protection. From the foreign lawmaking examples, for realizing the real rights for security by implementing simple ADR mainly, namely if both the guarantee real implementations fail to reach an agreement, the security holder and others have the right to request the implementation of real right for security may directly apply to the court for the auction, the sale of the property for security, rather than through litigation the real right of pledge. In view of this,1999Years10Month1Contract law article 286th the cost of the construction project payment shall become effective on the date specified,"The employer fails to pay the price in accordance with the contract, the contractor may demand that the employer to pay the price within a reasonable period of time. The employer fails to pay, in addition to the other project is unfit for discount, auction, the contractor may consult with the employer to convert the project into money, or apply to the people's court to auction the project according to law.2007Years10Month1The date of promulgation of the real right law stipulates clearly that the 195th, the mortgagee and the mortgagor does not reach an agreement on the means of realizing the right to mortgage, the mortgagee can request the people's court to auction, sale of the mortgaged property; the provisions of article 220th, the pledgor may request the pledgee in debt discharge period after the expiry of the pledgee to exercise; fails to do so, the pledgor may request the people's court to auction, sell the pledged property; the provisions of article 237th, the debtor may request the lienor in debt discharge period after the expiry of the lien; lien holder fails to do so, the obligor may request the people's court to auction, sell off the property under lien. This is our legislation is clear for the first time the real right for security, the implementation of the provisions for the implementation of the non litigation ways. Although the security interests of the property law and the substantive law has made the above provisions, but did not make provision for the specific procedures of real rights for security implementation procedures, the civil procedure law and other procedural law has not been a corresponding. In order to solve the above problems, the modification of the civil procedure law, from the legislative and judicial experience of relevant countries and regions, a section added in the special procedure in the civil procedure law, regulations on real right for security program.

The new civil procedure law 196th, 197th under the jurisdiction of the court on issues such as security to achieve the application subject, made provisions, but to"The people's court in the case ruled that standard, how to charge"Such problems have not been further provisions. According to the purpose of legislation and judicial practice, understand and apply the program should pay attention to the following questions:

One, on the realization of security interests of the applicant

According to the provisions of the criminal procedure law of 196th new civil cases, guarantee the realization of"The security holder"As well as"The other has the right to request the implementation of security interests of the people". In practice, how to understand"The security holder"And"The other has the right to request the implementation of security interests of the people"Applicable scope? Considering the establishment of the program is mainly aimed at the procedural rules of the property law and the substantive law of real right for security implementation of, for"The security holder"And"The other has the right to request the implementation of security interests of the people"Scope of application should be in the property law and the substantive law as the basis to determine. According to the relevant provisions of China's property law, the subject has the right to apply to the people's court for realizing the real rights for security only"The mortgagee","The pledgor"And"Property is retained the debtor". The new civil procedure law stipulated in article 196th"The security holder"Is mainly refers to the real right law 195th stipulation"The mortgagee"The property law, the provisions of article 220th"The pledgor"Law and the provisions of article 237th"Property is retained the debtor"You're quite right"The other has the right to request the implementation of security interests of the people". In the civil procedure law, the revision process, has the view that, to achieve the security interests of the applicant should not only the above three kind of main body of property law, should also include the above three kinds of main body corresponding, and the"The mortgagee"The corresponding"Mortgagor", and"The pledgor"The corresponding"A pledgee", and"Property is retained the debtor"The corresponding"The lien holder". In this regard, we think, the provisions of the civil procedure law only is the implementation of the property law, substantive law substantive rights and procedural provisions of the rules of procedure, based on the substantive law, shall be in accordance with the provisions of the substantive law to determine the realization of security interests of the applicant. Therefore, to achieve the security interests of the applicant shall be temporarily to the provisions of the law shall prevail, should not be expanded explanation. As for the mortgage, pledge, lien person whether can become the real rights for security application subject, and gradually explore the trial practice for the future.

In addition, for the realization of security interest is only in real right law as the basis, in other words, other substantive law outside could also for realizing the real rights for security reasons? We think, according to the new civil procedure law legislation, in addition to the three kinds of main application in property law, construction contractor in the contract law of China stipulates that the 286th can also be used as the main application. In addition, the provisions of maritime law, China's civil aircraft law of ship mortgage, mortgage of the civil aircraft and so on, can also be used for realizing the real rights for security cases of the applicant.

Two, about the jurisdiction of the court for realizing the real rights for security cases

From the legislative practice of the countries and areas in the world to see, for the jurisdiction of the court case to determine the real rights for security generally take two approaches: one is located under the jurisdiction of the property for security; two is secured by the property right registration to the jurisdiction of the court. The new civil procedure law and the two territorial jurisdiction standards. The provisions of article 196th, for the realization of security interest, the real right for security and for realizing the real rights for security have the right to request other people"Security property is located"Or"Real right of pledge registration"The basic people's court. In practice, the collateral for the multiple objects and scattered in a number of court jurisdiction, the jurisdiction of the court shall be determined according to the provisions of the civil procedure law, i.e. if all the courts have jurisdiction, the applicant may choose to apply to a court of competent jurisdiction put forward.

Three, the standard of review

The people's court to review the security holder application? We think, the people's court shall examine the applicant to provide relevant materials, such as real right for security is established documents (including the main contract, contract of guarantee, mortgage registration certificate or his right certificate etc.), secured debt is already expired, collateral and present situation of the fact, it may be necessary to investigate according to the authority the relevant facts and asked the relevant parties. Review in accordance with the law, the people's court to auction or sell on ruling the mortgaged property. Do not comply with the provisions of the law are rejected, realizing the real rights for security applications. According to the provisions of article 197th of the new civil procedure law, the application was rejected, the parties may bring a lawsuit to the people's court.

If the respondent raises an objection, the people's court and how to deal with? Therefore, in the civil procedure law, the revision process has two kinds of Views: one view, as long as the respondent raises an objection, the people's court shall rule to reject the petition; another view, for the respondent raises any objection, the people's court should be the objection is established for review, and should not only be the applicant challenged to reject the application. We think, for the respondent raises any objection, the people's court shall be examined, not solely on the basis of the respondent objections have rejected the request of the applicant, otherwise contrary to the new civil procedure law established the objective of the program. After review, the respondent objections is established, it shall order to reject the application.

A people's court for realizing the real rights for security case is a single judge or a collegiate bench trial, we believe, based on the realization of security interest cases in the new civil procedure law fifteenth chapter of special procedures, for the fifteenth chapter"General provisions"Of course, the application of the program. The new civil procedure law the 178th regulation,"This chapter cases tried in accordance with the procedures, execute a court. Cases of eligible voters or major, difficult cases, by a collegial panel of judges hearing; other cases tried by a single judge."Therefore, the people's court accepts the application for realizing the real rights for security cases, on the principle of using a single trial way to conduct the trial, but for the major, difficult cases, it should be by a collegial panel of judges in trial. On the time limit, shall be applicable to the new civil procedure law article 180th of the people's court trying a case in which special procedure time, which should be in the registration within thirty days from the date of conclusion, if extension is needed, subject to the approval of the president of the court.

Four, for realizing the real rights for security cases how to charge

Because of the realization of real right for security case is the modification of the civil procedure law after the new content, the current "means to pay the cost of litigation" has not been clearly defined how to charge. We think, for realizing the real rights for security in case additional special procedures of the new civil procedure law in the fifteenth chapter, we shall refer to relevant provisions of the "measures" of the payment of litigation fees charged per application fee, and not to apply for realizing the mortgage right amount as the basis for. The people's court to auction, sell the collateral that the applicant, apply to the people's court for compulsory execution, they should be the implementation of the amount charged to perform the application fee, and by whom the burden.

 

 

And five, a filing system for understanding

 

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"The problem is not clear, the prosecution in the trial procedure, which is difficult to promote the protection of the right of the litigants do not strictly and the court"Registered to"Criticism, 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 jurisdiction provisions of content, responding to, reduce the 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 litigants of both parties, to a certain extent, can prevent the abuse of litigation, help to regulate the trial order. The new civil procedure law of the people's court shall not accept the cases must be issued within seven days written verdict, 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 civil procedure law on Lien service made mandatory provisions. 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. For violation of centralized jurisdiction and special jurisdiction of the jurisdiction agreement, 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 law for the restriction modification on the devolution of jurisdiction, 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"Necessary conditions, approval procedures, documents and forms"To be clear, in order to facilitate the correct application of the law. We think, the law"If it is really necessary"The situation, including 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."If it is really necessary"What should the situation, in practice constantly summarizing.
Transfer of jurisdiction, both"Move on"Or"Hand down"On the level, are under the jurisdiction of the change, 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"The principle, which does not receive the 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 way, namely, audio-visual materials can be used as proof of delivery documents. 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 adopt the 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 to 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, i.e."To confirm the receipt of transmission"The people's court shall check, 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 preserve the relevant evidence litigation documents have been issued and reach the other system. In the trial practice must strictly abide by the provisions of the civil procedure law, cannot apply the electronic mode of service scope expanded arbitrarily, judgments, rulings and mediation agreement can not use the electronic mode of service.

 

 

And six, about the stranger the withdraw of understanding

 

In recent years, in the judicial practice of civil litigation in our country, the parties through malicious litigation, litigation and other means, infringes upon the lawful rights and interests have occurred. In the mediation cases,Some clients using mediation litigation fraud, damage the outsider phenomenon is particularly prominent. According to the provisions of the civil procedure law before the amendment, to protect the legitimate rights and interests of the outsider to implement relief, mainly rely on the civil procedure law 204th and the Supreme People's court "on the application of 'Civil Procedure Law of the people's Republic of China' procedure for trial supervision problems of interpretation" (hereinafter referred to as the "procedure for trial supervision of judicial interpretation" article forty-second) regulations, fifth of the execution objection system as well as an outsider retrial system. In order to more effectively combat false litigation, protect the legitimate rights and interests of the case, the new code of civil procedure the principle of honesty and credit in the thirteenth article, in the 112nd article in violation of the provisions of honesty and credit principle, malicious collusion between parties to civil sanctions, the scope is not limited to actual combat before the amendment of civil procedure law 204th and the "trial supervision procedure of judicial interpretation" refers to property damage. At the same time, to provide remedy for the violation of the rights of the outsider, the new civil procedure law stipulated in the fifty-sixth increase in the third paragraph:"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."Accordingly, the theory circle and practice circle generally believe that China established to protect the legitimate rights and interests of the stranger's lawsuit, the system in the fight against false action, provide a remedy to the case, the principle of honesty and credit has important significance to promote civil litigation. In order to further clarify the provisions in the practical operation and after the implementation of the new civil procedure law 227th relations, we think, in the judicial practice need to pay attention to the following points.

A,The purpose of legislation and the impact on judicial practice

The outsider's right relief question, in the drafting of legislation, the legislature had to apply for a retrial, the outsider outsider outsider, another lawsuit the withdraw of the three options, and ultimately chose to withdraw. The withdraw of as a relief system, the main purpose of legislation aimed at curbing the false litigation against the outsider's interests, and to withdraw to replace the outsider retrial system, failed to attend the litigation procedure of the outsider, the judgment or ruling, adjustable effect solution book can be a relief channel influence of its rights. In judicial practice, taking into account the effective legal documents are generally not easily changed and the stability of the law, we must pay more attention to the new system may impact and great influence on the stability of effective judgment, the applicable conditions and trial procedures carefully grasp the withdraw of the.
Two, the main ones litigate
The new civil procedure law fifty-sixth of two on the independent right of claim and right of the third party without independent claim in litigation situation separately. The two section of the third people once involved in litigation, it has become the litigants, the remedy is to apply for a retrial shall be in accordance with the new civil procedure law 199th. Some scholars think, missing necessary common lawsuit people, should apply to the new civil procedure law article 200th eighth"......Should parties, because you cannot blame themselves or their agents ad litem reasons, did not participate in the proceedings". We think, the new civil procedure law article 200th eighth omission shall participate in Litigation Retrial, seem to be able to contain in addition to the third party with independent claim and no independent claim right outside of the case, but the 200th are listed in the party applies for retrial, in fact, are not suitable for an outsider. The fifty-sixth section third"Third people"Because in fact did not participate in the litigation, the parties to a case, the connotation and the new civil procedure law 227th article outsiders agreement. The new civil procedure law, the provisions of the third paragraph of the fifty-sixth"Third people"Range, in fact is in addition to the litigant in all people, namely the outsider. Therefore, the main ones litigate, in addition to the new civil procedure law fifty-sixth stipulation has legal interest in third cases, the judicial practice shall also include the necessary common lawsuit people missing. The withdraw of the entrance is relatively wide, is conducive to the fight against the malicious litigation, litigation, safeguard the legitimate rights and interests are infringed parties really can relief channel. We believe that, due to the legislative purpose this law established the withdraw of the procedure for trial supervision to replace the "judicial interpretation" according to the modification of Civil Procedure Law stipulates that the 204th interpretation of the outsider retrial system, the missing necessary common lawsuit people are included in the scope of litigation cancellation, does not give an outsider to choose suitable parallel outsider retrial application right, can avoid the possible confusion in practice.
Three, litigation subject title
Some scholars argue, because the revocation is the action of the first impression, it should be the person to withdraw of the plaintiff, defendant, the defendant to the originating primary. We think, as known as the plaintiff, the defendant, encountered the problem is whether the new party gives appeal, if the appeal is to apply for a retrial. From this point of view is derived out, cancellation suit will be applied very complex. Therefore, shall withdraw to return to its original meaning, let the withdraw of the main line of the revocation, cancellation judgment after still controversial problems, but by other means of relief and supplement. The revocation of an action of the first impression is the effective judgment, are similar with the procedure for trial supervision in the retrial system, both are request to the original judgment errors correction. From the Taiwan region of the Civil Procedure Law of China's experience, the system is not quasi treated with some provisions retrial procedure provisions. The difference is that, retrial litigation purpose is to adjust the rights and obligations between the parties of the applicant requests the support, the revocation is found shall be reversed in the case of damage to outsiders the applicant requests the support the legitimate rights and interests. Therefore, we suggest that in the third party proposed revocation litigation, the litigation subject called revoke the claimant and the respondent shall specify, in litigation writing.
Four, the revocation of the registration and acceptance conditions
Case based on new facts filed lawsuit, the people's court shall accept the case according to law. But in order to avoid the impact of improper original judgment, the general action of the first impression is the accepted, should be examined by a relatively strict. We think, shall include at least the following conditions:
First, the main. Includes two types: one is because of not attributable to my reasons did not participate in the litigation, there is evidence that the parties malicious collusion, false action, damage the legitimate rights and interests. That is to say, the subject must have proof of the contents of the evidence; two is the evidence of its shall participate in the lawsuit, because not attributable to my reasons did not participate in the original judgment, the damage the legitimate rights and interests, resolve disputes and cannot be directly through the way of the other v.. The omission of the necessary common lawsuit people should become the main body of the withdraw of the outsider, the prosecution should be submitted for evidence of a relationship.
Second, the reason. The referee is the third part or all of the contents damage the legitimate rights and interests of the third party, the realization of legal rights to form barriers, outsiders have indivisible interests, and not through the other way to solve v..
Third, the deadline. The Civil Procedure Act fifty-sixth provisions of the third paragraph, an outsider can be self aware or should be aware of their civil rights being presented within six months from the effective judgment against the day. Here."Knows or should know"The starting point of time, need to submit evidence to prove the case.
Fourth, the specific request to withdraw the lawsuit. This is the case is submitted to the people's court, the prosecution to solve the problem, namely the request to withdraw what content or judgment, in order to make their legitimate rights and interests against infringement judgment.
Fifth, under the jurisdiction of the court. The new civil procedure act fifty-sixth provisions of the third paragraph, the case shall file a lawsuit to the people's court to make the effective judgment, ruling, the conciliation statement. That is to say, bring a lawsuit to the court of final appeal. The referee shall become effective after trial, the court of first instance judgment filed effect; second, to lift the court of second instance.
In addition, in the investigation of the case, should also be on the conditions and the conditions of the new civil procedure law stipulates that the 119th combination. As to what case, case, case by the court which court examination as to substance, is the specific problems in practice, needs to be further clear.
Five, litigation fees and related sanctions
The stranger put cancellation suit belongs to the action of the first impression. Since it is the action of the first impression, according to "means to pay the cost of litigation" the provisions of article second, it shall pay the related costs. However, the "measures" not according to the new changes to the civil procedure law and the amended accordingly, therefore, the litigation cost can be calculated according to the general provisions. The viewpoint thinks, cancel the applicant shall pay the cost of litigation standards according to the original judgment. We think, according to the General Provisions means to pay the cost of litigation, should according to the outsider the cancellation request amount or price range relates to payment amount, calculated specifically, according to the "measures" the provisions of article thirteenth shall. In addition, in order to prevent the abuse of rights and avoid the outsider withdraw form false litigation new, to be sure, in the revocation of the applicant's claims have not been the support of the court case, cancel the applicant should bear the cost of litigation. In this case, the respondent and demanded the repeal of the applicant's right of compensation, but not the withdraw of the outsider an infringement liability action.
Relief, the withdraw of the six
We think, the revocation should be removed. Revocation hearing the applicant only revocation litigation request is established, if established, only hinder the realization of the rights to revoke the case judgment related to item, if all the sentences are wrong, all wrong judgment revocation, cancellation of the substantive rights and obligations defined. In judicial practice, for infringement of the rights of others and collusive false litigation made, often deliberately conceal the actual performance of the rights of the people, in order to reach others absent judgment documents to defraud. Therefore, has the legitimate rights and interests of the outsider once took the right certificates or other evidence, most malicious collusion between the parties will no longer continue to claim, or even deliberately avoid the new civil procedure law article 112nd for the false action interfere with civil litigation impose compulsory measures to sanction. If the originating party still to the cancellation of part of the controversial, we think we should distinguish between the situation respectively. If you cancel the applicant and the third issue is that creditor's rights, revoke part belongs to the creditor's rights, the originating creditor's rights and action of the first impression does not belong to the same legal relationship, not the merger trial, can inform the parties to solve other v.. If you cancel the applicant and the disputes between the parties is right, also need to further distinguish between the case: one is the necessary common lawsuit people are missing, such as inheritance or co ownership, the original judgment is a court, revoke the relevant judgment after notification of the withdrawal, but the applicant to take joint action, to make a trial judge can appeal; the original judgment is the second trial final judgment, agreement is reached through mediation cannot, should rescind the original judgment, retrial, retrial should be appended to cancel the applicant for party. Two is not belong to the necessary common lawsuit people, revoke the relevant judgment item, shall inform the party concerned may bring an outsider and new litigation to resolve disputes.
Seven, the case in accordance with the procedure for trial supervision case processing
The new civil procedure law article 227th remained in the implementation process outsider objection can be processed in the procedure for trial supervision system, the need to clear it with the withdraw of the respective applicable scope. No need to participate in the litigation of the outsider, the property was the referee disposal in case execution, damage the legitimate rights and interests, the stranger did not conform to the conditions when the file a lawsuit to withdraw, to appeal to the people's court, the court has found that errors, should be in accordance with the new civil procedure law stipulates that the 198th first section processing. Here mainly refers to the real right is the referee outsider misclassified as referee in case.

 

 

And seven, about the retrial review program understanding

 

The new civil procedure law made further amendments to the civil retrial review system, perfect"The application for retrial put on a level"The trial grade rules, gives the party applying for procuratorial supervision rights in the legal conditions, modify the provisions of retrial, retrial time limit and review procedure, the retrial censorship legislation content more rich, system more scientific, causes more clear, the program more perfect, to protect the exercise application retrial rights, promote the people's court shall examine the application for retrial cases, has significant and the profound significance. The new civil procedure law coming into force, the new rules how to correctly apply the retrial review procedure is an urgent task facing the people's court. We believe that the new regulations, the correct application of retrial review procedures, to the accurate understanding of the legislative intention basis, explore more facilitate the exercise of litigation rights, more easy to resolve disputes on the spot to ascertain the facts, the court accept the work mechanism and the methods of supervision. Therefore, we should focus on the following four questions:

A,On the application for retrial jurisdiction of the court

The new civil procedure law article 199th on"The application for retrial put on a level"On the basis of the provisions of the provisions, increase a party number and the parties to civil cases can also apply to the people's court for retrial, thus changing the application for retrial shall be governed by the court at the next higher level principle.

According to statistics, the number of parties and the parties to civil cases about senior court civil retrial cases total30%. How to realize the two kinds of disputes, resolve the contradictions at the grassroots level, to solve the intention in the local legislation, but also to avoid the occurrence of multiple and repeated application, is the primary issue new regulations for retrial review. We believe, to solve this problem, the transfer method which can be used to appeal cases, to explore the establishment of the court to retrial application materials, to distinguish between different circumstances, by the court or by the court to a higher court to submit the case for retrial cases accepted the new mechanism. Specific ideas for:

(a) a party number and the parties to civil cases, the parties apply for a retrial, the retrial petition shall be submitted to the trial court and other materials. The parties to the trial court to submit the application materials to apply for a retrial retrial time time for it.

Between a party number and citizens in most cases of labor disputes, compensation for damage, marriage and family, private lending, neighbourhood dispute cases, the general amount of target is not simple, legal relationship, and even litigation E Xiaoyu to a higher court for retrial costs. To implement the legislation to facilitate the parties to apply for a retrial, the retrial application to further reduce the cost of litigation, the two party applying retrial cases, should be submitted to the trial court petition for retrial, retrial application materials by the court receiving party unity. Through the establishment of the court of retrial material acceptance work mechanism, one is to facilitate the parties apply for retrial, lighten the burden of parties; two cases are unified entrance, avoid repeated examination on the lower court, the contradictory problem; three is to grasp the original court judgment for retrial, found problems in a timely manner to improve trial quality effect; four is to facilitate the trial court to carry out post sentence interpretation to resolve contradictions. Through the trial court finds that the facts, evidence of effective judgment, interpretation of the applicable law, the parties to understand and accept the referee, the referee and the lack of understanding of the parties to avoid blindly apply for retrial. The parties submit a retrial petition to the court in time for its application for retrial time.

(two) the parties of the case to the court for retrial, the trial court in accordance with the application for retrial after examination conditions, should accept the case according to law.

The trial court received the retrial application form, according to whether the parties choose to appeal to the trial court for retrial,The case first shunt. Parties to the court for retrial, the court should review body, apply for retrial, period is consistent with the statutory conditions and whether the material meets the requirements to apply for a retrial. Retrial application complies with legal conditions, but the retrial application materials do not meet the requirements, should be a one-time inform the parties of such materials to be involved, after correction, timely acceptance review.

(three) the parties choose the case to a higher court for retrial, the trial court interpretation, the parties agreed to the trial court for retrial, the court should accept the case according to law; parties adhere to a higher court for retrial, the court shall, within one month of the retrial petition materials, the case file and interpretation cases submitted to a higher court.

For the parties in the retrial petition in the clear choice to a higher court for retrial, the court should do the following aspects of work: one is to carry out the sentence. If the parties apply for retrial on the judgment of facts, admissibility of evidence, law application, judicial procedure and other issues, do in-depth interpretation and further reconciliation, and inform the parties access to the trial court for retrial option. Specific interpretation procedures and requirements by the high court according to local conditions to be refined. Two is the two time the shunt of the case. After explanation, the parties to withdraw the application for retrial, the retrial application materials to the parties; if the parties reach a settlement agreement, can be for a retrial ruling and mediation; the parties agreed to the trial court for a retrial, the review with the conditions of admissibility and the materials are complete, the parties shall timely handle; adhere to a higher court for retrial, should respect the party's right to choose, in a timely manner the case submitted to a higher court. Three is the timely reporting of the case material. For the need to submit to a court case, the court shall timely tune the case file, specify the interpretation situation report, along with the retrial petition and other materials shall be submitted to the court at the next higher level. The trial court in principle to complete the work within one month.

Two, about the"If a party number and the parties to civil cases"Range

The legislation gives a number and parties to civil cases the parties choose the main purpose for court of retrial rights, one is the convenience of the parties litigation, two is to facilitate court to ascertain the facts, to resolve disputes on the spot. The realization of this legislative purpose, requirements in the specific application to expand the scope of the parties have the right to choose, with full respect for the parties choose the court for retrial will. We believe that, in accordance with the following criteria defined in two cases:

(a) a party numerous case scope

 The plaintiff, the defendant or the third party for more than three of the cases can be used as a party in a number of cases. With a party for three people above as the standard definition of a party a large number of cases, is conducive to protect the right choice, realize the purpose of legislation, and the trial court receives the case materials and be subject to the jurisdiction of the scope of the case, to avoid the lower court accepts the case can be repeated, over a period of time to explore trial. Notably, the trial court accepted more than three pieces of labor dispute, the property service contract disputes, a party with the same object of action is of the same kind of case, more suitable for in situ to ascertain the facts, to resolve disputes, features itself with the common joint action, can be used as a party in a number of cases.

(two) the parties to civil cases

With a trial the plaintiff and the defendant are citizens, appeal trial and appeal for citizens to apply for a retrial, the per capita and applicants for citizens of three cases cases can be both for civil cases as a party. We believe that, with the following one of three cases of both parties in civil cases:

1The plaintiffs and defendants are citizens. The plaintiff and the defendant is the action of both parties, is a basic civil action judicial model in two people, should be to the plaintiff and the defendant is delineated the scope of such cases. It mainly includes two kinds of situations: one is the first instance of the entry into force of the judgment, the plaintiff and the defendant are citizens; two is the second effective umpire, the first phase of the plaintiffs and defendants are citizens of the.

2The second appeal and appeal of per capita for citizens. The second instance trial range is the parties appeal, the appellant and appellee is the second two sides controversial party, the appellant and appellee per capita for citizens, should belong to this kind of case. It mainly includes two kinds of situations: one is the first instance of the plaintiff and the defendant and the appeal trial and appellate per capita for citizen; two is the first instance of the plaintiff and the defendant is a citizen, the third person is a citizen, third people of appeal or the appellee, second the appellant or respondent are citizens of the.

3 The applicant and the retrial retrial by applicants for citizenship. Scope of review is the party holds a retrial retrial, the retrial of the applicant and the respondent is both a retrial review stage of the parties, whether the first or second instance whether the parties are citizens, as long as the application for retrial, the retrial retrial applicant and respondent parties are citizens, should also belong to this kind of case.

Three, on the application of new rules for retrial period

(a) convergence of old and new method

About2013Years1Month1The day before the entry into force of the retrial period how to calculate the problem, we think, should be in accordance with the2007The provisions of the Civil Procedure Law of the year to apply for a retrial based calculation period, specific should apply for the retrial period to2013Years1Month1Whether the standard, is divided into two types: one is to apply for a retrial case processing period to2013Years1Month1Japan has already expired cases, in2013Years1Month1Future application for retrial, shall be dismissed; two is the deadline to apply for a retrial2013Years1Month1Japan has not yet expired cases, shall be determined in accordance with the following rules:

1The remaining retrial period less than six months, no matter what kind of reason on the basis of application for retrial, retrial application deadline will be in accordance with the2007184th years of the civil procedure law provisions of the calculation.

2The remaining retrial period exceeds six months, except on the basis of the new civil procedure law article 200th the first and the third paragraphs apply for a retrial, retrial period is calculated to2013Years6Month30Day.

3The remaining retrial period is more than six months, but on the basis of the new civil procedure law article 200th the first and the third paragraphs apply for retrial of the case, the application for retrial according to the deadline2007Two calculation rules of civil procedure law article 184th years from the date of entry into force of the referee.

(two) standard of review the admissibility stage for retrial time limit

How to review the application for retrial period in the acceptance stage problem, we think, for the2013Years1Month1The day after the entry into force of the referee, the referee shall take effect on the date of the application for retrial within six months, do not have to distinguish between the causes, are in line with the provisions of legal application for retrial period. If the parties in the effective date six months after the application for retrial, it should meet the following requirements:

1Must be on the basis of the new civil procedure law article 200th the first, third, twelfth, thirteenth for retrial.

2Should be a written description of the basis of the retrial found time, and submit relevant evidence, in order to review the party knows or ought to know the main content is more than six months.

3The new materials should be submitted to support the retrial evidence and illustrate this new evidence to overturn the original judgment, the main reason that the judgment evidence false evidence, the evidence is revoked or changed evidence, decision or judges perverting the law criminal judgment or disciplinary action.

Four, about the parties concerned for the procuratorial supervision for the new rules

The new civil procedure law 209th to give the parties for the procuratorial supervision rights, established the application for retrial procedure of procuratorial supervision in advance, after. According to this provision, we believe that, in the following two kinds of circumstances, shall notify the parties apply for procuratorial suggestions or protest to the procuratorate, should not be used as the retrial case acceptance:

One is to reject the application for retrial retrial applicant in the people's court and then to the people's court for retrial. But as the equal protection rights of parties, the other party to apply for a retrial in the legal application for retrial within the time limit, shall accept the application.

Two is the party that if the second judgment, ruling errors to the people's court for retrial. In the case of retrial procedure has been applied to the referee's case, in accordance with the provisions of article 209th of the new civil procedure law, all parties only for retrial the referee for procuratorial supervision. Therefore, currently applicable to never judgment applies for retrial"The people then word"Case number should not continue to apply.

 

 

And eight, about the procuratorial supervision system of understanding

 

In order to implement the relevant documents presented"Improve the scope of procuratorial organs to implement legal supervision on civil, administrative proceedings and procedures"The reform project, the new civil procedure law to strengthen the legal supervision of people's Procuratorate on civil litigation. The new civil procedure law to strengthen the procuratorial supervision mainly three points: one is to expand the scope of procuratorial supervision, procuratorial organs can exercise legal supervision in violation of national interests and social public interests of civil mediation; the two is to increase the supervision mode, can be by way of protest, procuratorial suggestion to realize the legal supervision of procuratorial organ; the three is to improve the the procuratorial supervision procedures, must be vetted within three months and the procuratorial organs have the investigation to verify evidence power in performing the legal supervision of the application of the parties. These regulations, to strengthen the procuratorial supervision, protect the rights, promote justice, safeguard judicial authority, will play a catalytic role. At the same time, in order to solve the problem of long, long review and appeal the court does not end and other issues, the law also established"The court relief in advance, procuratorial supervision after"The application for retrial"Route map"The path, to further standardize the parties to exercise their rights. According to the"Route map"Design, in the court and the procuratorate once, the parties will no longer exercise procedural rights. This establishes the limited retrial system from the system, which is in accordance with the law, in accordance with the law, effectively promoted the construction of our socialist country ruled by law.
One, about the procuratorial suggestions
The new civil procedure law article 208th in addition to confirm the original protest outside, also increased the procuratorial supervision of procuratorial suggestions. The people's Procuratorate in accordance with the procedure for trial supervision proposed to start the retrial procuratorial suggestions, will be2011Years3Some opinions on the Supreme People's court, the Supreme People's Procuratorate jointly sign the documents "about to exercise legal supervision over civil proceedings and administrative litigation (Trial)" ("Two high"Sign the file) related content increased as for legislation. We think, the implementation of this new system in the judicial practice, we should pay attention to the following points:
(a) Acceptance Review about the procuratorial suggestions
　　1To examine whether to submit relevant written materials. The prosecution procuratorial suggestions, shall be handed over to the procuratorial proposals and the application in the case of the parties and the relevant evidential materials.
　　2Review of procuratorial suggestion is correct. Object that retrial procuratorial organ, shall be legally effective supervision according to law and judgment, ruling, or damage the interests of the state, social and public interests of the mediation agreement. We think, to damage the interests of the state, social and public interests of the mediation in the book"Damage the interests of the state, social public"That, should strictly grasp. 　
　　3A review of compliance with the provisions of the new civil procedure law, the first paragraph of article 209th. The people's Procuratorate before the application, the parties have to apply for a retrial by the people's court to the people's court, the court rejected, or the people's court fails to make the decision.
　　4To examine whether the relevant organizations to discuss and decide."Two high"Sign the file is still a force, in the judicial practice should be continued. According to the document, the procuratorial suggestion is the way of supervision of the people's Procuratorate at the same level people's court judgment, it is submitted to the people's court shall pass before the people's Procuratorate Procuratorial Committee for discussion and decision.
(two) decided to apply whether the retrial procedure
In judicial practice, should notice the difference between the people's Procuratorate procuratorial suggestion standard and the people's Court adopted the procuratorial suggestion standard, the former has a new civil procedure act 200th provisions retrial reasons, the latter for the new civil procedure law the 198th regulation of the original judgement is wrong. In practice, the people's court after receiving the procuratorial suggestion, the examination shall be conducted within three months, found that there are errors, or procuratorial suggestions for retrial verdict, ruling for obvious errors, need a retrial, the Institute submitted to the judicial committee for discussion and decision. That is to say that the procuratorial suggestion is established, according to the authority to start the retrial. The people's court examination that the procuratorial suggestion is not established, it shall reply in writing to the people's Procuratorate, and explain the reasons.
Two, about the prosecutorial protest
The Supreme People's Procuratorate of the people's courts at all levels of the effective judgment, ruling, the people's Procuratorate at a higher level to lower level people's court judgment, ruling, have the right to lodge a protest, is the original provisions.2012Years of amending the civil procedure law, to protest conditions into a new content. We believe that, in the judicial practice should pay attention to the following points:
(a) form of review on appeal
The new civil procedure law the 211st regulation:"Case protested by the people's Procuratorate, accepted by a people's court shall within thirty days to make a ruling for retrial protest from the date of receiving the......"In general, the people's court for appeal cases shall render a ruling for retrial, but whether all to retrial ruling, the Supreme People's court2012Years4Month of guiding cases7No. "Mudanjiang Hualong Real Estate Company and the Mudanjiang municipal Hong Ge construction and installation company construction contract dispute case" protest, with vivid case explained"Thirty days"The necessity to review the form of the procuratorial organ.
　　1To examine whether to submit relevant written materials. The people's procuratorate according to the request of the parties concerned to lodge a protest of civil cases, the people's court shall examine whether the application has written protest and this case the parties and the relevant evidential materials.
　　2Review protest is correct. The people's Procuratorate object shall be legally effective judgment, and in accordance with the law retrial, adjudication or damage the interests of the state, social and public interests of the mediation agreement. For the civil ruling should be treated differently, in addition to dismiss a prosecution, shall not accept the verdict can protest outside, other all sorts of new civil procedure law the 154th regulation, the ruling shall not be revoked arbitration ruling, ruling costs burden, bankrupt procedure end, rejected the ruling party applying retrial verdict, ruling in the procedure of execution and so on, are procedural verdict, because there is no v. content, were not appeal retrial according to law ruling.
　　3Review the protest indicates whether legal reasons. Protest against a legally effective judgment, ruling, with the new civil procedure law stipulates that the 200th circumstances.
　　4A review of compliance with the provisions of the new civil procedure law, the first paragraph of article 209th. The people's Procuratorate before the application, the parties have to apply for a retrial by the people's court to the people's court, the court rejected, or the people's court fails to make the decision.
(two) the form of review after treatment
The form of review, found that the materials do not meet the requirements, the people's court should communicate with the procuratorial organs, requirements of the withdrawal or correction; prosecutors insisted not withdrawn or corrected, can only be ruled inadmissible.
(three) review of the problems should be paid attention to
Needs to be pointed out is, the people's Court of appeal cases review procedures should be formal review, as for the appeal reason should support, should be the ruling retrial retrial after task. At the same time should be made clear is, protest is a legal supervision power of procuratorial organs of the state law, under normal circumstances, is accepted by a people's court shall rule for retrial. Review is not a limitation of prosecution of the protest, but in the procuratorial organ appear random, reduce and avoid the procedure law of the people's Court met in the treatment of problems and difficulties.
Three, and the procuratorial supervision of cohesion and complaint letters and visits
In order to ensure2012The annual repair method results are fulfilled, in the understanding and application of"The court relief in advance, procuratorial supervision after"In the process, we should pay attention to the following points:
(a) the application path of procuratorial supervision
To meet the new civil procedure law the 209th regulation of the case, the parties concerned may apply for procuratorial suggestions or protest to the people's Procuratorate, the parties to the people's court petition appeal for retrial, the people's court shall inform the people's Procuratorate appeal to reflect. At the same time, taking into account the laws from formulation to implementation often requires a process, especially the most complaints due to the masses, education background, work experience, living environment and other factors, can not fully understand the legal changes, or inertia and will adhere to the people's court for retrial petition petition, the people's court shall actively interpretation of law, inform the parties appeal to the relevant authorities.
(two) for the prosecutorial supervision of civil procedure law before the judgment
Amendment 209th added to the Civil Procedure Law,Does not require the parties to apply for the procuratorial supervision period. Therefore, the new civil procedure law after the implementation, to the people's court2013Years1Month1Days before the new civil procedure law to comply with article 209th (a), (three) the case case, the parties may apply to the people's Procuratorate procuratorial suggestions or protest. The parties to the people's court petition appeal for retrial, the people's court shall not accept, and patience to the parties for the interpretation work.
(three) the petition cases are generally not suitable for end of procuratorial supervision
Modification of the civil procedure law, to implement the central requirements regarding the petition work the end, according to the law, the Supreme People's court formulated the "the people's court petition letter case ending way". In accordance with the provisions of the present measures, the people's courts at all levels to strictly implement"Four in place"Requirements, has ended a petition backlog, protect the litigation rights of the parties, the reasonable demands of the masses, and promote social harmony and stability, obtained the affirmation and support. For this particular period of practice, in the amendment of Civil Procedure Law comes into effect, we should not deny the petition cases, end the parties according to the new civil litigation law 209th application of procuratorial supervision, the people's procuratorate should generally not be mentioned again the procuratorial supervision, otherwise it will lead to the end of the case repeatedly, affect social stability.
(four) without applying for retrial cases on appeal
The new civil procedure law 209th set preconditions for procuratorial suggestions or protest parties, namely, the people's court for examination or retrial retrial. Therefore, do not have pre conditions or not, within the statutory time limit, apply for a retrial, the people's Procuratorate not to apply for procuratorial suggestions or protest. In this case, the parties to the people's court for retrial petition complaints, we believe that the people's court generally will not accept and examine the retrial.
(five) for the treatment of procuratorial organ shall not procuratorial supervision
The people's procuratorate according to the request of the parties concerned, within three months after the review, made not present procuratorial suggestions or protest decision. According to the law, the parties may appeal to the people's Procuratorate, again accordingly, the parties can not appeal to the people's court. The parties petition appeal for retrial, the people's court should not accept that we review and the retrial.
(six) the prosecution of procuratorial suggestion after treatment
The people's court after examination into the retrial procedure, retrial to maintain the original judgment, the procuratorial supervision party refuses to accept the application for retrial, or change the original judgment, the other party may apply to the procuratorial supervision, both parties, or the other party, right exhausted civil litigation law, the procedural rights have been fully guaranteed, therefore, the people's court should not be used as the retrial case acceptance review. The review by the people's court that procuratorial suggestion is not established, the parties to the people's court for retrial petition complaints, we think that the people's court should not accept the examination and the retrial.
(seven) the prosecution after treatment of protest
In accordance with the requirements of form of protest, the people's court shall make a ruling within thirty days of retrial. Does not meet the formal requirements, the people's court shall request the people's Procuratorate shall be corrected or withdrawn by the parties to the court complaint letters and visits, during this period, the people's court may inform the people's Procuratorate to seek clarification. The people's Procuratorate of the people's court for the correction is not made or withdrawn, the people's court may be ruled inadmissible. Due to the protest ruling retrial, retrial judgment to maintain the original judgment or revised, the parties to the appeal, we believe that the people's court should not accept the examination and the retrial.
In addition, to ensure that the new civil procedure law 209th implementation, a pressing matter of the moment is, the people's courts at all levels shall adopt a variety of ways, enhance propaganda, guide the parties in accordance with the law in order to express their demands. Especially in the high court, should give further play to Beijing to visit barrier function: one is to do the clothing judgments; two is the party refuses to accept the application for retrial retrial judgment rejected or continue to petition complaints, try to guide the choice for procuratorial suggestions to the people's Procuratorate at the same level; three is the party insisted on went to Beijing to petition, to have the patience to inform the relevant legal provisions, to guide the orderly appeal. At the same time, to support the people's Procuratorate to the procuratorial work, the people's court shall establish communication, cooperation mechanism and the people's Procuratorate, by providing a recent court reception parties may apply for procuratorial suggestions or appeal the case number, type, and provide reference for the people's Procuratorate science study situation, optimize configuration. Through regular communication with the people's Procuratorate, procuratorial suggestion put forward understanding not case or protest, to achieve timely information sharing, unified caliber, with the people's Procuratorate jointly explain the laws, to eliminate the misunderstanding, facilitate its early to appeal to go visit.

 

 

And nine, about the civil law enforcement supervision system understanding

 

 The eleventh session of the twenty-eighth meeting of the NPC Standing Committee passed the "on the revision of 'people's Republic of China Civil Procedure Law' decision", the new civil procedure law will be2013Years1Month1The formal implementation date. The act of fourteenth in the original people's Procuratorate"Have the right to exercise legal supervision over the civil trial activities"Provisions, amended as"Have the right to exercise legal supervision over the civil litigation"The provisions in article 235th, and,"The people's Procuratorate has the right to exercise legal supervision over the civil execution"The people's Procuratorate, marks a clear legal basis to supervise the civil execution, is also the end of the long on a people's Procuratorate has the right to supervise the civil execution debate. Seriously study the law of Civil Procedure Revision, and accurately understand the profound meaning of the law, to ensure the correct implementation of the new civil procedure law of the people's court, to promote the standardization of the enforcement work, earnestly safeguard the legitimate rights and interests of the parties is of great significance.

 2011Years3Month10Day, the Supreme People's court, the Supreme People's Procuratorate jointly issued the "notice on the part of the local civil enforcement legal supervision pilot activities" (hereinafter referred to as pilot notification), decided in twelve provinces of Shanxi, Inner Mongolia (autonomous region, municipality directly under the central government) to carry out the pilot work of legal supervision of civil execution. The pilot work for more than a year, the Supreme People's court, the Supreme People's Procuratorate and the pilot area people's court, people's Procuratorate of the civil enforcement legal supervision activities attention, constantly explore new work mechanism, non experimental areas also refer to pilot the notification requirement, work actively, civil execution supervision work as a whole is benign development trend. But there are many problems in practice, some is more serious, such as the differences in concept, overseeing the startup procedure is not standard, the scope of supervision, supervision mode, expand the messy supervision improper, restricted to a certain extent and influence the civil enforcement legal supervision activities carried out smoothly, need to pay close attention to.

Because of the new civil procedure law is just the principle provisions of the people's procuratorates shall have the right to supervise the civil execution, not on the prosecutorial supervision of civil execution power to run to make specific provisions. At present, the new civil procedure law formally implemented is approaching, and the Supreme People's court, the Supreme People's Procuratorate jointly formulate specific guidance and time, the relevant provisions on the civil enforcement, legal supervision of the correct implementation of the new civil procedure law to ensure the unity we think, the people's court should focus on a good grasp of the following issues.

One, about the effect of pilot notification

Later the civil enforcement legal supervision activities started, in some places to carry out pilot less than two years time, the whole is still in the attempting stage, many problems need to be systematically, analysis, research, in need of correction, unified concept, deepen. The pilot notice is the basis of the Supreme People's court, the Supreme People's Procuratorate on in-depth study of extensive investigation, combined with current situation of the civil enforcement legal supervision activities jointly issued. The notice on the issues we need to clear, the main provisions of the civil execution start-up mode, legal supervision, supervision, supervision form scope effect of such content, for the people's Procuratorate of civil execution supervision as well as the people's court for the case of a people's Procuratorate supervision of civil enforcement activities has a very important guiding significance. Before the Supreme People's court, the Supreme People's Procuratorate has not released the guidelines of the new rules, the pilot notification should continue to implement. Special attention is needed, with the formal implementation of the new civil procedure law, the scope of pilot notification should also expand accordingly from the pilot provinces to other non pilot areas, which is suitable for the country, the people's courts at all levels in the handling of civil enforcement cases procuratorial supervision must conscientiously abide by the pilot notification requirements. This also needs to be emphasized, the Supreme People's court, the Supreme People's Procuratorate has begun to make the guidance of specific norms, in"Two high"Before the regulatory opinions issued, the local people's courts should generally not be again with the local people's Procuratorate jointly issued similar provisions.

 Two, the scope of procuratorial supervision on Civil Execution

The people's Procuratorate of the civil enforcement legal supervision is endowed by law to the people's Procuratorate's power, the prosecutorial supervision of civil execution for the norms of behavior plays a positive role in the people's court for enforcement. But the prosecutorial supervision of civil execution power to follow the execution work rules, to the border of power. In the modification process, there are views that, everything has"Two sides", if too much emphasis on, excessive exercise of prosecutorial supervision of civil execution power, it will impact the normal operation mechanism of enforcement system and the executive power, breaking the balance of both parties, high cost, low efficiency, long supervision, cumbersome procedures, even by a series of problems if improper use against execution etc.. Therefore, the scope of supervision should be limited to damage the interests of the state, social and public interests and other circumstances, namely the pilot notice second identified five cases. Unified operation target of judicial power determines the consistency of supervision and support. Support in the supervision, supervision in support of both supervision, to support, to enhance the effectiveness of supervision, is conducive to safeguarding the legitimate rights and interests of the parties, more conducive to the maintenance of social fairness and justice. In practice, the people's court in civil execution, for the special subject of state organs as the implementation of whom cases, due to improper intervention to execution; execution, has the obligation to assist unit, natural person as well as an outsider to the threat of violence or other methods to prevent, stop the people's court for enforcement of the person subjected to execution; ability to perform and refused to perform effective court judgment, ruling, if the circumstances are serious, which refused to implement the decision, ruled that the crime, the people's court shall communicate to the people's Procuratorate at the same level in time, ask the people's Procuratorate supervision, support, the problem in the implementation of the joint solution.

Three, about the prosecutorial supervision of civil execution form

At present, in the judicial practice, the prosecutorial supervision of civil execution in various forms, the proposal, correct illegal notice, suspend, change the idea of procuratorial suggestion, that does not perform the reason, to urge the implementation of notice, notice of suspension of execution proposal, not to execute the proposal, notice, notice, to lodge a protest on the order book. In this regard, the pilot notification prescribed in article third,"Should the procuratorial committee decided by a written way of the procuratorial suggestions on the same level or lower level people's court's civil execution supervision". The provisions have been made clear in the form of prosecutorial supervision of civil execution--Written examination suggested, program--The decision of the prosecutorial committee. Civil procedure law endows the procuratorial organ to exercise legal supervision over the civil execution power, different procuratorial organs supervision over judicial staff malfeasance in other laws, therefore not suitable means of infringement investigation, to supervise the civil execution. We think, the foregoing pilot notice both the execution characteristics, but also to take into account the procuratorial supervision needs strengthening factors of internal control, compliance with the law, in practice, should continue to adhere to the. The people's court for enforcement supervision cases, and to supervise for not meeting the above requirements, can not be placed on file, no reply. Though the law gives the people's Procuratorate to supervise the civil execution power, but essentially it gives people's Procuratorate launched to supervise the procedure of civil execution power, rather than a review decision, therefore, the proper way to start monitoring program is put forward written procuratorial suggestions. Whether to adopt the procuratorial suggestions finally also need to decide after the people's court must review procedures, the basic requirements of individual local practice in clear violation of the authority to supervise the irreplaceable exercise to correct illegal notice etc.. Held in June of this year's national procuratorial organs civil administrative procuratorial work forum meeting, the Supreme People's Procuratorate have clear requirements, civil execution procuratorial proposal forms are used to the procuratorial supervision, can not use the law to correct notices and other forms of.

 Four, a prosecution for suggestions on writing

The people's court, the people's Procuratorate is the national judicial equality, prosecutorial supervision power, executive power and judicial power of court equal, only the division of labor is different, there is no status, power level of the size, mutual respect for the exercise of power to. The people's Procuratorate procuratorial suggestions mentioned in written form and supervision of civil enforcement cases, the people's court shall form a collegial panel to formally file, review in accordance with the law, make and will handle the case written reply within one month of the people's Procuratorate handling. The reply in writing to a content analysis facts, applicable law, illegal, illegal or other circumstances. In practice, there are also individual phenomenon, the people's court for written procuratorial suggestions ignore, perfunctory evasive. The people's Procuratorate procuratorial committee is discussing collective decision-making mechanism on major cases and other major issues, for after the Procuratorial Committee for discussion and decision to initiate and supervision of civil enforcement cases, the people's court seriously seriously, strictly in accordance with the relevant procedures, the supervision of the procuratorial respect, reflects the people's court for the procuratorial supervision of civil enforcement cases carefully, rigorous attitude.

Five, about the illegal supervision and treatment

 The lack of effective supervision and restriction of power, may lead to the abuse of power. The procuratorial supervision of civil execution power is no exception. In judicial practice, the phenomenon of prosecutorial supervision of civil execution power exercising, even abuse still exist in some places. The people's courts in handling civil enforcement cases procuratorial supervision, procuratorial supervision behavior that violates the legal provisions or the discipline, may make a written proposal to the people's Procuratorate at the same level, have objection to the people's Procuratorate reply, can be presented to the people's Procuratorate at a higher level through the people's court at a higher level.