Key legal provisions

The ruling in Article 140 applies to the following scope:?

(1) Inadmissibility;?

(2) Objection to jurisdiction;?

(3) Dismissal of prosecution;?

(4) Property preservation and advance execution;?

(5) Allow or disallow the withdrawal of the lawsuit;

(6) Suspend or terminate the lawsuit;

(7) Correct clerical errors in the judgment;

(8) Suspension or termination of execution;?

(9) Refusal to enforce the arbitral award; ;?

(11) Other matters that need to be resolved by ruling. ?

The rulings in items (1), (2) and (3) of the preceding paragraph may be appealed. ?

The ruling shall be signed by the judge and the clerk and stamped with the seal of the People's Court. If the decision is made orally, it shall be recorded in the transcript. ?

Relevant legal provisions "Opinions on Civil Complaints"

163? After the first-instance judgment is pronounced, if the original People's Court finds that the judgment is erroneous and the party concerned files an appeal within the appeal period, the original People's Court may If the opinion that the original judgment is erroneous is raised, the case shall be submitted to the People's Court of Second Instance, which shall conduct a trial in accordance with the procedures of the second instance; if the parties concerned do not appeal, the case shall be handled in accordance with the trial supervision procedures. ?

Detailed explanation?

Civil judgments, civil rulings and civil decisions are several legal documents commonly used in civil litigation. The focus should be on mastering the specific application of legal documents. ?

1. The difference between civil judgment and civil ruling. ?

In civil litigation, civil judgments are suitable for resolving substantive issues, while civil rulings are suitable for resolving procedural issues. To accurately apply legal documents, first of all, the nature of the problem to be solved must be defined; secondly, if there are problems with the substantive matters that have been judged, they should be corrected with the help of legal procedures. ?

2. What civil decisions need to resolve are several special procedural matters in the process of litigation. ?

Example question (Question 35 of Paper 3, 2005)?

A court made a judgment on a rental contract dispute between A and B. Neither party appealed during the appeal period. Later, the court discovered that the amount of rent to be paid was 1,000 yuan instead of 10,000 yuan in the judgment. How should the court deal with this? ?

A? Make a ruling correcting the errors and serve it to both parties?

B? Notice to withdraw the judgment and make a new judgment?

C? The court has The judge submits it to the judicial committee for discussion and decision on retrial?

D? Ruling to revoke the judgment and make a new one?

[Answer] A?

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Key Legal Articles

Article 142 The provisions of this chapter shall apply to basic people's courts and the tribunals dispatched by them when hearing simple civil cases with clear facts, clear rights and obligations, and little controversy. ?

Article 144: When hearing simple civil cases, the basic people's courts and their dispatched courts may summon parties and witnesses at any time in a simple manner. ?

Article 146: When a people's court applies summary procedures to hear a case, it shall conclude the case within three months from the date of filing the case.

Relevant legal provisions "Provisions on Summary Procedures"

Article 1 When basic people's courts hear simple civil cases in accordance with the provisions of Article 142 of the "Civil Procedure Law of the People's Republic of China", this provision shall apply.

(1) The whereabouts of the defendant are unknown at the time of prosecution; (2) The defendant is remanded for retrial; >

(3) ***One or both parties in the same litigation have a large number of persons;?

(4) The law stipulates that special procedures, trial supervision procedures, supervision procedures, public notice reminder procedures and The bankruptcy and debt repayment procedures of an enterprise legal person;?

(5) The People's Court deems it inappropriate to apply simplified procedures for trial.

Article 2: For civil cases tried by the basic people's courts using the ordinary procedures of first instance, if the parties concerned voluntarily choose to apply the simplified procedures, and the people's court reviews and agrees, the simplified procedures may be used for the trial. The People's Court shall not violate the principle of voluntariness of the parties and convert ordinary procedures into summary procedures.

Article 3 If a party raises an objection to the application of summary procedures and the people's court finds that the objection is established, or if the people's court finds during the trial that it is inappropriate to apply summary procedures, the case shall be transferred to ordinary procedures for trial. ?

Article 4 If the plaintiff cannot write the complaint himself and it is really difficult to entrust another person to write the complaint on his behalf, he may file the complaint orally. If the plaintiff files an oral complaint, the people's court shall accurately record the basic information, contact information, litigation claims, facts and reasons of the parties, and register relevant evidence. The people's court shall read the above-mentioned records and registration contents to the plaintiff in person. The plaintiff shall sign or seal the contents if he or she believes that they are correct. ?

Article 6 After the plaintiff files a lawsuit, the People's Court may summon both parties and witnesses at any time by simple methods such as oral messages, telephone calls, faxes, and emails. ?

Article 7 After both parties arrive in court, if the defendant agrees to give an oral defense, the People's Court may immediately hold a hearing; if the defendant requests a written defense, the People's Court shall set the time limit for submitting the defense and the specific date of the hearing. Inform all parties and explain to the parties the legal consequences of late production of evidence and refusal to appear in court. All parties shall sign or stamp on the receipt of service of the transcript and court summons. ?

Article 8 If the people's court is unable to notify the defendant to respond according to the defendant's service address or other contact information provided by the plaintiff, it shall handle the case separately according to the following circumstances: ?

(1 ) If the plaintiff provides the defendant's accurate service address, but the people's court is unable to directly serve or retain the notice of response to the defendant, the case shall be transferred to ordinary procedures for trial;?

(2) If the plaintiff cannot provide the defendant's accurate service address, and the People's Court still cannot determine the defendant's service address after verification, it may rule to dismiss the plaintiff's lawsuit on the grounds that the defendant is unclear. ?

Article 9 If the defendant refuses to provide his or her service address and contact information after arriving in court, the People's Court shall inform him of the consequences of refusing to provide his or her service address; if the defendant still refuses to provide the service address after being informed by the People's Court, If provided, it shall be handled in the following manner:?

(1) If the defendant is a natural person, the place of residence or habitual residence in his household registration shall be the address for service; ?

( 2) If the defendant is a legal person or other organization, his or her domicile in the industrial and commercial registration or other legal registration and filing shall be the address for service. ?

The people's court shall record the contents of the above notification in the transcript. ?

Article 10: Litigation documents cannot be served by the parties because the service address provided by the party himself is inaccurate, the change of service address is not notified to the People's Court in a timely manner, or the party refuses to provide his or her service address. If it is actually received, it will be handled in the following way:

(1) If it is delivered by mail, the date of return indicated on the mail return receipt will be deemed as the date of delivery;?

( 2) If it is delivered directly, the date when the deliverer records the situation on the delivery receipt on the spot shall be deemed as the date of delivery.

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The people's court shall inform the parties in writing or orally of the above content when the plaintiff files a lawsuit and the defendant makes a defense. ?

Article 14 For the following civil cases, the People's Court shall first mediate them during trial: ?

(1) Marriage and family disputes and inheritance disputes; ?

(2) Labor contract disputes;?

(3) Damage compensation disputes with clear rights and obligations caused by traffic accidents and work-related injuries;?

(4) Homestead and neighboring relationship disputes;?

(5) Partnership agreement disputes;?

(6) Disputes with relatively small subject matter amounts. ?

However, this is excepted if mediation cannot be carried out based on the nature of the case and the actual situation of the parties or it is obvious that mediation is not necessary. ?

Article 18 If a court hearing notice is sent by oral letter, telephone, fax, email, etc., without confirmation by the party concerned or without other evidence sufficient to prove that the party has received it, the People's Court shall not As a basis for dismissal and default judgment.

Article 21 During the court session, the judges may summarize the focus of the dispute based on the litigation claims and defense opinions of the parties. After confirmation by the parties, the parties will present evidence, cross-examine and debate around the focus of the dispute. If the parties have no dispute over the facts of the case, the judges may make a judgment or ruling immediately after hearing the parties' arguments on the applicable law. ?

Article 22 If both parties go to the basic people's court at the same time to request the settlement of a simple civil dispute, but do not negotiate the time limit for producing evidence, or the defendant is summoned to court in a simple way, the parties shall request during the hearing. If evidence is produced in court, it shall be allowed; if a party has difficulty in producing evidence in court, the time limit for producing evidence shall be determined by the parties through negotiation, but shall not exceed fifteen days; if negotiation fails, the time limit for producing evidence shall be decided by the People's Court. ?

Article 23 Civil cases subject to summary procedures shall be heard in one hearing, except where the People's Court deems it necessary to hold another hearing. ?

Article 24 The clerk shall record in the transcript all activities involving the application of simplified procedures in hearing civil cases. The following matters should be recorded in detail:?

(1) The adjudicator’s notification of the parties’ litigation rights and obligations, summary of the focus of the dispute, identification of evidence, and announcement of the judgment and other major matters;?

(2) Significant matters such as application for avoidance, confession, withdrawal, settlement and other matters by the parties;?

(3) Other matters directly related to the parties’ litigation rights stated in court.

Article 27 For civil cases that are subject to summary procedures, the judgment shall be pronounced in court, except where the people's court deems it inappropriate to pronounce the judgment in court. ?

Article 28 In cases where judgments are pronounced in court, except where the parties request delivery by mail in court, the people's court shall inform the parties or agents ad litem of the period and place for collecting the judgment documents and the failure to collect them after the time limit. legal consequences. The above circumstances should be recorded in the transcript. ?

If the people's court has informed the parties of the period and place for collecting the judgment documents, the date when the parties collect the judgment documents within the designated period shall be the date of delivery; if the parties do not collect the judgment documents within the designated period, the designated collection date shall be The date on which the judgment document expires shall be the date of service, and the appeal period of the party shall be calculated from the day after the expiry date designated by the people's court to collect the judgment document. ?

Article 29 If a party requires delivery of judgment documents by mail due to transportation inconvenience or other reasons, the people's court may serve it by mail at the service address provided by the party itself. ?

If the people's court delivers the goods by mail according to the service address provided by the party, the date of receipt or return indicated on the email return receipt shall be the date of service, and the party's appeal period shall be noted on the email return receipt. The calculation starts from the day after the date of receipt or return.

Article 30 If the plaintiff refuses to appear in court without justifiable reasons after being summoned by subpoena or leaves the court midway without the permission of the court, the case may be treated as withdrawn; the defendant refuses to appear in court without justifiable reasons after being summoned by subpoena or If the court leaves the court midway without the permission of the court, the people's court may make a default judgment based on the plaintiff's claims and the evidence materials submitted to the court by both parties. ?

If the case is dismissed or a default judgment is made, the people's court may serve the judgment document to the party who did not appear in court at the service address provided by the party.

Article 31 In cases where a scheduled judgment is pronounced, the date of the scheduled judgment shall be the date of service, and the appeal period of the parties concerned shall commence from the next day after the scheduled judgment is pronounced. If a party fails to appear in court on the scheduled judgment date without justifiable reasons, it will not affect the calculation of the appeal period of the judgment. ?

If a party is unable to appear in court for legitimate reasons and has notified the People's Court before the scheduled judgment is announced, the People's Court may serve the judgment document to the party who did not appear in court at the service address provided by the party. .

Article 32: If a civil case subject to summary procedures is subject to one of the following circumstances, the people's court may appropriately simplify the facts or reasons for judgment when making the judgment document:?

(1) The parties reach a mediation agreement and need to prepare a civil mediation document;?

(2) One party explicitly acknowledges all or part of the other party’s claims during the litigation process;?

(3) The parties have no dispute or little dispute over the facts of the case; content, the people's court deems the reasons to be justified;?

(5) Both parties agree to simplify the judgment document.

"Opinions on Civil Complaints"

173. Judgments, rulings, and mediation documents produced by people's courts must be stamped with the seal of the grassroots people's court, and the seal of the people's court must not be used to replace the grassroots people's court. Seal of the Court. ?

Detailed explanation?

As a simplified form of ordinary procedures, simplified procedures have always been the focus of qualification examinations over the years. It is necessary to focus on the application of simple

procedures. ?

1. The scope of application of the simplified procedure. The scope of application of summary procedures can be understood from three aspects:?

(1) The applicable courts are grassroots people’s courts and their dispatched tribunals; ?

(2) The applicable trials The level is first-instance cases;?

(3) Applicable cases are simple civil cases with clear facts, clear rights and obligations, and little controversy. ?

2. The scope of simplified procedures shall not apply. The following types of cases shall not be subject to summary procedures:?

(1) Where the whereabouts of the defendant are unknown at the time of prosecution;?

(2) Remand for retrial; > (3) ***One or both parties in the same lawsuit have a large number of persons;?

(4) The law stipulates that special procedures, trial supervision procedures, supervision procedures, public notice procedures and corporate bankruptcy procedures should be applied Debt repayment procedures;?

(5) The People's Court deems it inappropriate to apply simplified procedures for trial. ?

In addition, for civil cases tried by the basic people's courts using the ordinary procedures of first instance, if the parties voluntarily choose to apply the simplified procedures, and the people's court reviews and agrees, the simplified procedures can be used for the trial. The People's Court shall not violate the principle of voluntariness of the parties and convert ordinary procedures into summary procedures. ?

3. Civil cases that are mediated first.

People's courts apply simplified procedures to hear civil cases, and the following cases must be mediated first during court hearings:?

(1) Marriage, family disputes and inheritance disputes;?

(2) Labor services Contract disputes;?

(3) Damage compensation disputes with clear rights and obligations caused by traffic accidents and work-related injuries; ?

(4) Homestead and adjacent relationship disputes; ?

(5) Partnership agreement disputes; ?

(6) Disputes with relatively small subject matter. ?

However, this is excepted when mediation cannot be carried out based on the nature of the case and the actual situation of the parties or it is obvious that mediation is not necessary.

In addition, the People's Court's "Summary Procedural Provisions" also stipulates the specific procedures for prosecution and defense, pre-trial preparation, trial, pronouncement and service of issues. Please refer to the procedures listed in this section. Specific provisions stipulate. ?

Example question (Question 48 of Paper 3 in 2006)?

Which of the following civil litigation cases cannot be tried by summary procedures? ?

A. Cases where the parties’ agreement does not apply to the simplified procedure?

B. Cases in which the defendant was incarcerated at the time of prosecution?

C. Cases remanded for retrial?

D. ***Same litigation case?

[Answer] C?

Key legal provisions

Article 147 The parties concerned are not satisfied with the decision of the local people’s court. If a judgment is made at trial, the person has the right to appeal to the people's court at the next higher level within fifteen days from the date of delivery of the judgment. ?

If the party concerned is dissatisfied with the first-instance ruling of the local people's court, he or she has the right to appeal to the higher-level people's court within ten days from the date of delivery of the ruling. ?

Article 149 The appeal shall be submitted through the original People's Court, and copies shall be submitted according to the number of parties or representatives of the other party. ?

If the party appeals directly to the People's Court of second instance, the People's Court of second instance shall transfer the appeal to the People's Court of original instance within five days. ?

Relevant legal provisions "Opinions on Civil Complaints" ?

176. If both parties and the third party appeal, they are both appellants. ?

177. If it is necessary to appeal to one or some of the litigants, it shall be handled according to the following circumstances: ?

(1) The appeal is against the other party If there are disagreements over the sharing of rights and obligations between the two parties, and the interests of other co-litigants are not involved, the other party shall be the appellee, and the same party who has not appealed shall be listed according to the original litigation status;?

(2 ) If the appeal only concerns the sharing of rights and obligations between *** and the litigant, and does not involve the interests of the other party, the same party who has not appealed shall be the appellee, and the other party shall be listed according to the litigation status of the original trial;?

(3) If the appeal raises objections to the rights and obligations between the two parties and between *** and the litigant, the other parties who have not filed an appeal shall be the appellees. ?

178. When the judgment of first instance is pronounced or when the judgment or ruling is delivered, if the party expresses an appeal orally, the people's court shall inform him that he must file an appeal within the statutory appeal period. If an appeal petition is not submitted within the statutory appeal period, the appeal will be deemed not to have been filed.

Detailed explanation?

The second instance procedure starts based on the filing of an appeal that meets the statutory conditions. The following points need to be understood regarding the filing of an appeal:

1? object of appeal. ?

Appeals can only be made against judgments and rulings that allow appeal. Judgments allowing appeals are first-instance judgments made by local people's courts at all levels after applying ordinary procedures and summary procedures; rulings allowing appeals include: rulings not to accept the case, rulings to reject prosecution, rulings to object to jurisdiction and rulings to reject bankruptcy applications. ?

2. The appeal period: that is, the appeal period for a judgment is 15 days, and the appeal period for a ruling is 10 days.

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3. Determination of the appellant and the appellee: ?

(1) The person who has the right to appeal is the person who enjoys substantive rights or assumes substantive obligations based on the first-instance judgment. ?

(2) If both parties and the third party appeal, they are all appellants. There is no appellee in this case because the court of second instance is hearing whether the appeal request of the party is established. Therefore, there is no need for an appellee. Attention should be paid here to the issue of appeal by a third party without an independent claim, that is, a third party without an independent claim who is ordered to bear civil liability by the first instance judgment has the right to appeal. ?

(3) It is necessary to resolve the appeal issues of the same litigant. After the people's court makes a first-instance judgment against the necessary co-litigants, there is often the problem that only one or some of the necessary co-litigants appeal. At this time, how to determine the litigation status of the parties in the second instance procedure should depend on the appeal. the specific circumstances of the person’s appeal. The core content of Article 177 of the "Civil Complaint Opinions" can be summarized in one sentence, that is, the person who has the right to appeal and files an appeal is the appellant, the person who the appellant has an opinion on the sharing of his rights and obligations is the appellee, and other people have the same litigation status as the original trial Just list it out. ?

4. The appeal should be in written form. In principle, the appeal petition should be submitted through the original People's Court. However, the parties are also allowed to submit it to the People's Court at the next higher level. ?

Example question (Question 15 of Paper 2 in 1997)?

In the inheritance dispute case between Zhao Lin and Zhao Sen, Zhao Shuifa participated in the lawsuit as a third party with independent claim rights. . The court of first instance made a judgment in accordance with the law. When delivering the judgment to the parties, Zhao Lin verbally stated on the spot that he would not appeal, but submitted an appeal petition to the court of first instance during the appeal period: Zhao Sen verbally expressed his appeal on the spot, but did not directly appeal during the appeal period. He went to the court of first instance to submit an appeal, but he went to the post office and mailed the appeal to the court of first instance in a registered manner on the first day before the expiration of the appeal period. When the court received the appeal, two days had passed; Zhao Yongfa said verbally on the spot An appeal was filed, but a petition was never filed with the court. In the above circumstances, from a legal perspective, who is the person who appealed the judgment in this case?

A? Zhao Lin, Zhao Sen, Zhao Shuifa

B? Zhao Sen, Zhao Shuifa ?

C? Zhao Lin, Zhao Sen

D? Zhao Lin, Zhao Shuifa?

[Answer] C?