The summary of the appeal and the procedural violations are based on the facts and reasons, including those not provided in the first-instance procedure. The following is a model appeal.
model petition for divorce 1
a divorce litigant who refuses to accept a civil judgment or ruling of first instance by a local people's court at all levels and appeals to a people's court at the next higher level according to legal procedures and time limit, requesting to cancel or change the written statement of the original judgment is called a petition for divorce.
The function of divorce appeal is mainly to protect the legitimate rights and interests of the losing party in the divorce case of first instance, to prevent the occurrence of misjudged cases and to ensure the quality of trial.
the appeal for divorce has the following characteristics: (1) it must be filed by the litigants and their legal representatives, and others have no right to file it; (2) It must be filed against the judgment of first instance of local people's courts at all levels; (3) An appeal must be filed with the people's court at the next higher level that made the judgment of first instance in accordance with legal procedures and time limits.
(1) Heading 1. Title: Write? Civil appeal? .
2. Parties column: List their basic information in this order: appellant, appellee.
the method of listing is as follows: (1) if the appellant and the appellee are citizens, the writing method is: first list the appellant's name, gender, age, nationality, place of origin, occupation or position, work unit or address.
if the appellant has a legal agent or an entrusted agent, it shall be followed by another line: name, gender, age, nationality, occupation or position, work unit or address of the legal (or entrusted) agent, and relationship with the appellant.
if the agent is a lawyer, only the name and position are listed.
after the appellant writes, list the appellee's name, gender, age, native place, occupation or position, unit or address.
and according to the needs of the case, set out the relationship between him and the appellant.
(II) Appeal request
State the specific purpose of the request, whether it is to request to cancel the judgment of the original trial and completely change the decision of the original trial, or to request to make some changes to the judgment of the original trial.
Divorce cases are relatively more complicated than criminal cases. Therefore, the purpose of the request should be more clear, specific and detailed.
if you want to achieve something, just point it out to the point, and you can't just say:? Ask the higher court to take care of it and change the original judgment appropriately? ，? Request a higher court to make a fair judgment according to law? Or is it? Ask the higher court to decide for me? Such empty talk.
at the same time, write out all the purposes of the request, and write a few items if there are any, without omission.
Of course, if it is thoughtless, it is also allowed to make a request to supplement or change the lawsuit during the appeal trial.
(III) Reasons for Appeal
On the grounds of argument, the appeal for divorce is mainly directed at the referee of the original trial, not at the other party; The civil complaint is entirely about the irrationality of the other party, which is the fundamental difference in writing between the appeal and the complaint.
we must really grasp it.
otherwise, if the complaint or defense of the original trial is brought to the court for appeal, it will be completely changed and copied, which is not only inconsistent with the method of making the appeal, but more importantly, the argument is unclear and irrelevant, making the appeal request unfounded and often not accepted by the higher people's court.
In view of the judgment of the original trial, the reasons for refusing to accept the argument are nothing more than the following aspects: 1. Argumentation of the fact that the original trial was wrong.
Focus on whether the facts identified by the original judge are all wrong or partly wrong; Explain what the objective truth is.
the objective facts put forward in the appeal against the original facts must be proved with sufficient evidence.
when people's courts handle cases, what is the first thing? Based on facts? Yes, as long as all or part of the facts identified in the original trial can be pushed back, it goes without saying that it will inevitably lead to all or part of its handling decision.
2. Argumentation on the nature of the original determination.
this should specifically point out its improper characterization.
there are also qualitative problems in civil cases, that is, determining the cause of action.
if the characterization is not accurate, it will be handled improperly.
3. Argumentation on improper application of substantive law to the original judgment.
This means that the original judgment refers to the relevant substantive law provisions, or it is not suitable for the facts of the case; Or there is one-sidedness in quoting the relevant legal provisions, and only some relevant provisions are quoted, while others are ignored; Or misinterpreted the legal provisions and so on, resulting in improper handling.
To cite relevant legal provisions, analyze and demonstrate them concretely.
4 The improper application of procedural law to the original trial affects the argument of correct trial.
this means that the original trial violated the provisions of the procedural law in the trial of a case, so if the case was improperly handled, it can be put forward according to the facts as a reason for requesting to change the judgment of the original trial.
if the original trial violates the provisions of the procedural law in the trial of the case, it is not improper.
should not be the only reason for appeal.
In a word, the part of reasons for appeal is actually a refutation of the original judgment.
After clarifying this meaning, we must pay attention to two points.
First, the refutation should be well-founded and the wording should be appropriate. Similarly, it is required to stick to the attitude of putting facts and making sense, and the wording should not be infinite;
Second, the judgment of the original trial can be reviewed by the people's court at a higher level for the correct part of the facts ascertained in the original trial and the applicable law, that is, the uncontroversial part. Therefore, there is generally no need to repeat the narrative in the appeal, and there is no need to explain the consent to these parts, so as to avoid the lengthy text of the appeal.
after writing the reasons for the appeal, write the concluding remarks.
it is usually written as:? To sum up, it shows that the judgment (or ruling) made by the people's court of XXX (or the original trial) is improper, and we hereby appeal to your hospital to request that the original judgment (or ruling) be revoked and the judgment be revised (or re-processed) according to law.
(IV) Tail and Appendices 1. Sent to the organ, which can be written in three lines: This letter is sent to the people's court of XXX to report to the intermediate (or advanced) people's court of XXX; It can also be directly written as: To the Intermediate (or Advanced) People's Court of XXX.
2 Write at the bottom right: Appellant: XXX (signature or seal) and indicate the year, month and day.
3. The appendix states: (1) X copies of this appeal; (2) X pieces of exhibit XX (name); (3)
XX pieces of documentary evidence (name).
Petition for Divorce 2
Appellant is XX, female, 37 years old, Han nationality, from XX city, deputy manager of XX company in XX city, and lives at XX, a road in XX district, XX city.
the appellee shimou, male, 4 years old, Han nationality, from a county in XX province, is a salesman in XX factory in XX city, and lives at XX road, a district in XX city.
because of the divorce case, the appellant refused to accept the second judgment in the civil judgment of the people's court of XX District, XX City on May 1, 1996 (1996), and now appeals.
The appeal requests to cancel the second judgment in the civil judgment of XX District People's Court of XX City (1996)X MinchuziNo. XX; Shi X(13 years old), a girl born in wedlock, was raised by the appellant.
the original judgment says:? In view of the plaintiff's rich income and sufficient economic strength to train children to become adults, our hospital believes that bringing children up by the plaintiff is conducive to the healthy growth of the next generation.
? On this basis, Shi X, a girl born in wedlock, was sentenced to be raised by the Appellee.
the appellant thinks that this judgment is improper and the reasons for the judgment cannot be established.
the reasons are as follows: firstly, the appellant has been taking care of the children's life and study, and the children have formed a strong mother-daughter friendship with the appellant; The appellee has worked as a salesman in XX factory for nearly ten years, often traveling away from home, sometimes not going home for several months, never asking about children's life and study, and having no feelings for children.
Therefore, the Appellant thinks that raising children by the Appellee is not conducive to their growth, while raising children by the Appellant is beneficial to their physical and mental health, which is conducive to cultivating children's harmony.
Second, the appellant's income is not low, and he is fully capable of bringing up children.
the key is not who has the money, but who will raise the children for their healthy growth.
the appellee said that he had the money to hire a nanny to take care of the children, and the court also thought this statement was reasonable. Can the nanny be taken care of by the mother? This statement is unreasonable.
the opinions of children should be considered when deciding who to raise them.
Article 5 of "Several Specific Opinions of People's Courts on Handling Child Support in the Trial of Divorce Cases" issued by the Supreme People's Court in 1993 stipulates:? Parents should consider their children's opinions if they have disputes over their minor children over the age of 1 living with you or their mothers.
? The court of first instance made a subjective decision without consulting the children at all.
The child heard that he cried with you for a few days, saying that he didn't want to live with his father, but he wanted to live with his mother.
Please ask the people's court of appeal to act according to the Supreme People's Court's Opinions, and consider the children's opinions, so that the children will be sentenced to the appellant's custody.
attached to the intermediate people's court of XX city: a copy of this appeal.
Appeal 3
Appellant:
Appellee: (There is no appellee in the criminal appeal) The Appellant refuses to accept theNo. of the People's Court of Year, Month, Day () because of a case, and now appeals.
appeal request: reasons for appeal: attached to the people's court: a copy of this appeal. Appellant: year, month, day [fill in instructions] 1. Appeal request.
First, comprehensively describe the whole case, and then state the verdict of the original trial.
Secondly, indicate whether you are dissatisfied with all or part of the original judgment.
finally, state the specific litigation request, whether to cancel the original judgment, change the original judgment in whole or partially.
2. Reasons for appeal.
it is mainly aimed at the referee in the original trial, not at the other party.
The reasons for refusing to accept the judgment and ruling of the original trial are mainly as follows:
(1) The facts are unclear and the main evidence is insufficient;
(2) The nature determined in the original trial was improper;
(3) Improper application of substantive law;
(4) violation of legal procedures.
[Note] 1. The appeal can only be in written form.
if the parties only verbally appeal when the judgment or ruling of the first instance is served, but fail to submit the appeal within the statutory time limit, it is deemed that they have not filed an appeal.
2. Appeal means that the parties have the right to appeal, and the original trial, the defendant and the third party who is judged to be responsible have the right to appeal.