Relevant Provisions on First-Instance Procedures for Civil Litigation

(1) Concepts and Conditions for Prosecution

Citizens, legal persons and other organizations believe that their civil rights and interests have been infringed upon or that they have When someone else has a dispute and requests the People's Court for legal protection through trial in one's own name, it is called a lawsuit.

Prosecution, litigation, and litigation rights are three different but closely related concepts. Suing is a request; suing right is the right to request; and prosecution is the act of realizing this request. The three should be distinguished.

Prosecution is a kind of civil litigation legal act, which may cause the occurrence of litigation procedures and the conduct of litigation activities. Therefore, prosecution must meet statutory conditions. According to Article 108 of the Civil Procedure Law, a lawsuit must meet the following conditions:

(1) The plaintiff is a citizen who has a direct interest in the case. legal persons and other organizations. Anyone who has the ability to litigate can be a party to a civil lawsuit, either as a plaintiff or as a defendant. But to become a plaintiff in a specific case, you must also have a direct interest in the case. That is to say, if the plaintiff requests the people's court to confirm and protect it, the civil rights and interests in dispute or infringement must be its own or the civil rights and interests protected by itself in accordance with the law. If it has no direct interest relationship with the case, it means that the party is not qualified and cannot be a party. The plaintiff filed a lawsuit in the People's Court. Citizens, legal persons or other organizations can become plaintiffs in civil cases through prosecution. Among them: other organizations refer to organizations that do not have the qualifications of legal persons, such as preparatory offices, branches and other social groups that do not have the qualifications of legal persons.

(2) There is a clear defendant. The so-called clear defendant refers to the citizen, legal person or other organization that the plaintiff believes has infringed on his rights or has a dispute with him. He must be clear and cannot refer to him in a general way. If there is no clear defendant, no one will recognize the plaintiff's request, the legal relationship cannot be verified, and the people's court cannot start trial activities.

(3) There are specific litigation claims, facts and reasons. The so-called specific litigation claims refer to the fact that the content and scope of the civil rights and interests that the plaintiff requires the people's court to confirm or protect must be specific, that is, what specific purpose the plaintiff can achieve through the litigation requirements. If the plaintiff does not make a specific claim, the people's court will not be able to hear and make a ruling. The so-called facts refer to the fact that the legal relationship between the original and the defendant occurs, changes, and is eliminated, as well as the fact that the defendant infringes the law or the fact that there is a dispute with the plaintiff. It also includes evidentiary facts that prove the facts of the case. The so-called reason is the main basis for why the plaintiff files a specific claim to the People's Court. If the plaintiff cannot provide specific facts and reasons for the claim, it will be difficult for the court to make a correct judgment, and the case may be lost. It should be noted here that the Civil Procedure Law stipulates "factual reasons" rather than "factual basis". In trial practice, some judges cannot distinguish the difference between prosecution evidence and winning evidence, and mistakenly regard "factual basis" as winning evidence. When suing, the plaintiff is required to provide it, otherwise the plaintiff's lawsuit will be dismissed, thus making it more difficult for the parties to file a lawsuit. The Civil Procedure Law abandons "factual basis" and stipulates it as "facts and reasons" to make it clear that the plaintiff only needs to provide it when suing. If the facts of the case and the reasons for the claim can be presented, and other conditions are met, the People's Court shall accept the case in accordance with the law.

(4) It falls within the scope of the People's Court to accept civil litigation and the jurisdiction of the People's Court subject to the lawsuit. The scope of civil litigation accepted by the People's Court has two meanings. The first refers to the scope of the division of powers between the People's Court and other state agencies, that is, the case should be under the jurisdiction of the People's Court, and the People's Court has the power to handle this case according to law. Trial; secondly, it refers to the scope of division of responsibilities between criminal litigation and administrative litigation within the people's court, that is, it must fall within the scope of acceptance of civil litigation, that is to say, the dispute is between citizens, legal persons, other organizations and Disputes over property or personal relationships between citizens, legal persons, and other organizations fall under the jurisdiction of the people's court subject to the lawsuit, which means that the people's court that accepts the lawsuit has jurisdiction over the civil case in accordance with the jurisdiction provisions of the Civil Procedure Law. Only civil cases that are legally under the jurisdiction of the People's Court and under the jurisdiction of the People's Court subject to the lawsuit can be accepted and tried in accordance with the provisions of the Civil Procedure Law.

The above four conditions are indispensable, and any one of them is not met. Under any of the conditions, the prosecution cannot be established.

(2) Methods of prosecution

The methods of prosecution provided by the Civil Procedure Law include written prosecution and oral prosecution. Article 100 of the Civil Procedure Law. Article 09 stipulates: “A prosecution shall be submitted to the People’s Court. and files copies according to the number of defendants. "Only if it is really difficult to write a complaint, you can file an oral complaint. The People's Court will record the plaintiff's oral statement in the transcript and inform the other party.

The complaint is a written request made by the plaintiff to the People's Court. Basis. According to Article 110 of the Civil Procedure Law, the complaint shall include the following contents:

1) The physical circumstances of the parties, including the name, gender, age, and ethnicity of the parties. and domicile. The name of the legal person or other organization, the domicile and the name and position of the legal representative or principal. This part reflects the identity of the parties and makes the plaintiff and defendant specific.

2) The litigation claims and the facts and reasons on which they are based are the main content of the complaint. The plaintiff must state in the complaint the specific litigation claims and the facts and reasons for making such requests, including the facts of the existence of legal relationships, the facts of disputes, and the reasons for filing such claims.

3) Evidence and evidence sources, witness names and residences. Whether the facts of the case exist must be proven by evidence. The Civil Procedure Law stipulates the plaintiff's burden of proof. Therefore, when writing a complaint, the plaintiff should provide evidence to support the claims and the reasons for such claims. If documentary evidence or physical evidence is provided, it should be submitted to the People's Court when submitting the complaint. When providing witness testimony, the address of the witness should be stated to facilitate investigation and verification by the people's court. When the people's court records the plaintiff's oral complaint, it must inquire about the above contents one by one and record them in the transcript.

(3) Acceptance and trial

After the people's court reviews the prosecution and decides to accept the case, the preparatory work before the trial includes:

1) Send the case in accordance with the law Statement of Indictment and Statement of Defence. The People's Court shall send a copy of the complaint to the defendant within five days from the date of filing the case; the defendant shall submit a defense within fifteen days after receiving the copy of the complaint; and the People's Court shall send a copy of the defense to the plaintiff within five days after receiving the defense.

2) Inform parties of relevant litigation rights and obligations. When the people's court decides to accept a case, it shall inform the parties of the relevant litigation rights and obligations in the case acceptance notice and the litigation response notice. According to the provisions of the Civil Procedure Law, the main litigation rights of the parties include: entrusting a litigation agent, applying for avoidance, collecting and presenting evidence, conducting debates, requesting mediation, filing an appeal, applying for execution, accessing or copying relevant materials of the case, and settling on one's own initiative; the plaintiff The claim can be abandoned or changed; the defendant can admit or refute the claim and has the right to file a counterclaim, etc. Litigation obligations mainly include: exercising litigation rights in accordance with the law, observing litigation order, and performing legally effective legal documents, etc.

3) Form a collegial panel in accordance with the law. To hear a case using the ordinary procedures of first instance, a collegial panel shall be formed in accordance with the law. From the preparations before the trial to the conclusion of the case, everything should be carried out with the participation of all members of the collegial panel. The members of the collegial panel should be responsible for the trial of the entire case from beginning to end, so as to give full play to the role of the collegial panel and ensure the quality of case handling. After the members of the collegial panel are determined, the parties shall be notified within three days. If the members of the collegial panel have been determined after accepting and filing the case, the members of the collegial panel may also be included in the notice of case acceptance and response notice together with the litigation rights and obligations of the parties. Also inform the parties concerned.

4) Review litigation materials, investigate and collect necessary evidence. The members of the collegial panel must carefully review the litigation materials and take turns reviewing the files. By reviewing the papers, we will find out the focus of the dispute between the two parties, and clarify what necessary evidence needs to be collected and what needs to be further verified in the next step, so that other preparations can be made. Investigation and gathering of necessary evidence is an important part of preparations before trial. It should be noted that in civil cases, it is absolutely necessary to further emphasize the burden of proof on the parties involved. This means that the parties concerned must provide evidence for their requests and the facts that need to be proved. When a party cannot produce evidence and the court cannot collect evidence, the party with the burden of proof must bear the legal consequences of losing the case. However, the combination of the parties' giving of evidence and the court's investigation and collection of evidence is a characteristic of my country's civil trials.

5) Add parties in accordance with the law. According to Article 119 of the Civil Procedure Law, if a party who must jointly litigate does not participate in the litigation, the people's court shall notify him to participate in the litigation and be added as a party. This provision shows that the issue of adding additional parties does not arise in ordinary contractual litigation. This provision can only be applied to necessary contractual litigation. The addition of a party may be made by the party concerned, or the People's Court may actively add the party ex officio. If a party files an application, the people's court shall review it. If the application is unreasonable, it shall not be added; if the application is justified, the added party shall be notified in writing in a timely manner to participate in the litigation. The additional party may be the co-plaintiff or the co-defendant in this case. If the party is a co-plaintiff, if the party to be added gives up substantive rights and is unwilling to participate in the litigation, the addition may not be made; if the party neither gives up substantive rights nor participates in the lawsuit, the people's court may list it as a co-plaintiff and apply A default judgment applies to a co-defendant who refuses to appear in court after being notified of additional parties. If the conditions for summons stipulated by law are met, a summons may be applied. A defendant who is not required to appear in court may also be subject to a default judgment. What should be noted here is that the people's court cannot replace the parties ex officio. Because changing the plaintiff involves whether the original plaintiff is willing to withdraw from the lawsuit, and whether the new plaintiff is willing to participate in the lawsuit. Especially in the case of a majority of plaintiffs, some may be willing to participate in the litigation while others are unwilling to participate in the litigation; if the defendant is changed, it also involves the question of whether the plaintiff is willing to sue the defendant. In order to respect the litigation rights of the parties and better safeguard the litigation rights of the parties, if the person suing or responding to the lawsuit does not meet the conditions of the parties, the People's Court may rule not to accept the case. It is up to the parties to decide whether to replace them. The People's Court shall not Replace on the initiative according to authority.

(4) Withdrawal of the lawsuit

Applying to withdraw the lawsuit is an act by the parties to dispose of their litigation rights, and must be carried out within the scope of the law.

According to the relevant provisions of the Civil Procedure Law, an application for withdrawal of a lawsuit must meet the following conditions:

1) The person applying for withdrawal of a lawsuit must be the plaintiff or an agent specially authorized by the plaintiff. For a plaintiff who has no capacity for litigation, his legal representative shall file a lawsuit, and no other litigation participant may request to withdraw the lawsuit.

2) Application to withdraw a lawsuit must be voluntary. Withdrawal of a lawsuit is an act by the plaintiff to dispose of the litigation rights and must adhere to the principle of voluntariness. Forcing the plaintiff to withdraw the lawsuit is not allowed by law. Forcibly mobilizing the plaintiff to withdraw the lawsuit or attaching conditions to withdraw the lawsuit violates the principle of voluntariness and is not allowed.

3) Application for withdrawal of lawsuit must comply with legal provisions. This means that the withdrawal of a lawsuit must not infringe upon the legitimate rights and interests of the state, the collective or others, and must not circumvent the law or attempt to evade legal sanctions.

4) The application to withdraw the lawsuit must be made before the People's Court pronounces the judgment. After the judgment is pronounced, the plaintiff cannot apply to withdraw the lawsuit. If the plaintiff applies to withdraw the lawsuit, he shall submit an application for withdrawal to the People's Court. After review, the People's Court may make a ruling to approve the withdrawal of the lawsuit if it deems that the conditions for withdrawing the lawsuit are met; if the conditions for withdrawing the lawsuit are not met, the People's Court shall not approve it. For a plaintiff's application to withdraw the lawsuit after a third party with an independent right of claim joins the lawsuit, after the People's Court allows the plaintiff to withdraw the lawsuit, the third party with an independent right of claim will serve as the plaintiff in another case, and the plaintiff and defendant in the original case will serve as defendants in the other case, and the lawsuit will proceed separately.

The ruling may be in writing or verbally. If the ruling is in written form, it shall be signed by the judge and the clerk, stamped with the seal of the People's Court, and served on both parties. If the ruling is made verbally, it shall be recorded in the transcript. The parties concerned may not appeal against the ruling of approving or disapproving the withdrawal of the lawsuit, nor may they apply for reconsideration.

Article 129 of the Civil Procedure Law stipulates that if the plaintiff refuses to appear in court without justifiable reasons after being summoned by subpoena, or leaves the court midway without permission of the court, the lawsuit may be treated as withdrawn. It should be noted here that according to the provisions of the Civil Procedure Law, whether the case is dismissed or a default judgment is made, parties who do not have to appear in court do not need to be summoned repeatedly. They only need to be summoned once, but it must be a "summons." rather than verbal summons or telephone summons.

In addition, in trial practice, the legal representative of a plaintiff without legal capacity refuses to appear in court without justifiable reasons after being summoned by a subpoena, and a third party with an independent right to claim is summoned by a subpoena from the People's Court. , who refuses to appear in court without justifiable reasons, or who leaves the court midway without permission from the court, may be treated as withdrawn in accordance with the provisions of Article 129 of the Civil Procedure Law. If the plaintiff fails to pay the case acceptance fee in advance when it should have paid in advance, the People's Court shall notify it to pay in advance. If it still fails to pay in advance after being notified, or if its application for mitigation is not approved by the People's Court but still fails to pay in advance, the case shall be ruled to be automatically withdrawn.

In a case where a party applies to withdraw the lawsuit or can handle it according to law, if the party has violated the law and needs to handle it in accordance with the law, the people's court may not allow the lawsuit to be withdrawn or not handle the case as withdrawn.

(5) Default judgment

Default judgment is relative to a default trial. When a case is heard in court, only one party appears in court, and the people's court only checks the evidence and listens to the statement of the party who is present in court. After reviewing and verifying the complaint or defense and evidence submitted by the party who did not appear in court, the people's court makes a judgment in accordance with the law. It's a default judgment. According to the provisions of the Civil Procedure Law and the judicial interpretation of the Supreme People's Court, a default judgment is applicable, or the relevant litigation participant does not appear in court and a judgment can be made according to law. There are mainly the following situations:

1) The plaintiff does not appear in court or Withdrew from the court midway. When the defendant files a counterclaim, if the plaintiff refuses to appear in court without justifiable reasons after being summoned by the People's Court with a subpoena, or leaves the court midway without permission from the court, a default judgment may be made in accordance with Article 129 of the Civil Procedure Law.

2) The plaintiff’s application to withdraw the lawsuit was not approved and refused to appear in court. In a case in which the People's Court has ruled that the lawsuit is not allowed to be withdrawn, if the plaintiff refuses to appear in court without justifiable reasons after being summoned by subpoena, a default judgment may be made in accordance with Article 131 of the Civil Procedure Law.

3) The defendant did not appear in court or left the court midway. If the defendant refuses to appear in court without justifiable reasons after being summoned, or leaves the court midway without permission from the court, a default judgment may be made in accordance with Article 130 of the Civil Procedure Law.

4) The defendant’s legal representative did not appear in court. If the people's court refuses to appear in court without justifiable reasons for the legal representative of a defendant without litigation capacity after being summoned by subpoena, it may make a default judgment in accordance with the provisions of Article 130 of the Civil Procedure Law.

5) In a divorce case, the legal representative of the plaintiff or defendant who is an incompetent person does not appear in court. In divorce proceedings involving a person without capacity for civil conduct, the legal representative of the party concerned shall appear in court; if the legal representative fails to appear in court, the people's court shall make a judgment in accordance with the law on the basis of ascertaining the facts.

6) The third party without independent claim will not appear in court. If a third party without independent claim rights refuses to appear in court without justifiable reasons after being summoned by the People's Court, or leaves the court midway without permission of the court, the trial of the case will not be affected. The People's Court may order it to assume obligations.

A default judgment can only be made after all the facts of the case have been ascertained. At the same time, the legitimate rights and interests of the absent party must be carefully considered.