Appellee (defendant in the original trial, counterclaim plaintiff): (name province)
Appellee (defendant in the original trial, counterclaim plaintiff): (name province)
Appellee (defendant in the original trial, counterclaim plaintiff): (name province)
Appellee (defendant in the original trial, counterclaim plaintiff): (name province)
The appellant refused to accept the ruling of Bao 'an District Court (20xx)XX Law ShaominchuziNo. civil ruling. XX, and filed an appeal in accordance with the law, requesting the second instance to revoke the ruling of the first instance in accordance with the law, and instructing the first instance to conduct a substantive trial.
Facts and reasons:
First, the court of first instance ruled that the dismissal of the prosecution violated the provisions of Article 1 19 of the Civil Procedure Law.
The first-instance judgment ruled that the reason for dismissing the prosecution was: "We believe that the plaintiff's equity has been registered in the name of the defendant (a province), and the revenue from the canteen contract in dispute is collected by North XX. If the plaintiff thinks that the defendant (a famous province) has infringed on his legal inheritance right, he shall file a lawsuit for infringement, and he claims his rights on the grounds of inheritance right, which does not meet the conditions for prosecution "(see page 6 of the first-instance judgment).
It is obviously a violation of Article 1 19 of the 20xx version of the Civil Procedure Law to rule that the prosecution is dismissed simply because the cause of action does not meet the conditions for prosecution: "The prosecution must meet the following conditions:
(1) The plaintiff is a citizen, legal person and other organization that has a direct interest in the case;
(2) Having a clear defendant;
(3) Having specific requests, facts and reasons;
(4) It falls within the scope of civil litigation accepted by the people's court and is under the jurisdiction of the sued people's court.
At the same time, "the Supreme People's Court on printing and distributing the revised; The notice clearly stipulates: "2. People's courts at all levels should have a correct understanding of the nature and function of the cause of action of civil cases. They should not equate the revised provisions of the cause of action of civil cases with the acceptance conditions stipulated in Article 108 of the Civil Procedure Law of People's Republic of China (PRC), and should not rule not to accept or reject the prosecution on the grounds that there is no corresponding cause of action in the revised provisions of the cause of action of civil cases, which will affect the exercise of the parties.
Obviously, the first trial also violated the notice of the Supreme Court.
Two, determine the cause of action is the authority and responsibility of the court, the parties have no right and obligation to determine the cause of action, the plaintiff only needs to "have specific claims and facts and reasons".
The appellant in this case never said that it was the cause of inheritance in the original trial. I don't know what is the basis of the appellant's claim in the first instance.
Of course, the appellant did not consider that the cause of action was "tort action".
The appellant only put forward specific claims, facts and reasons.
As for the specific claims and statements of factual reasons, words such as inheritance, infringement or contract cannot be used as the basis for determining the cause of action.
Three, even if the plaintiff's appeal is different from the legal relationship of the court to find out the facts, the court should also exercise the power of interpretation, and the parties should change the cause of action or change the cause of action according to law.
The right of interpretation is not only the right of a judge, but also the obligation of a judge.
The Supreme Court has made it clear that if the facts ascertained are different from the legal relationship of the plaintiff's prosecution, the court should exercise the right of interpretation to the parties, inform them and ask them whether to change the cause of action.
If the parties are willing to change the cause of action according to the judge's interpretation right, the court shall try and make a judgment according to the changed cause of action; If the parties insist on not changing, the court may make a judgment according to the requirements of the parties.
It is against the provisions of the Supreme Court to directly rule that the prosecution is dismissed without explanation.
4. If the cause of action determined by the court of first instance is different from that determined at the time of filing, the court of first instance can and should make a judgment directly based on the cause of action determined after investigation, and should not dismiss the prosecution.
Provisions of the Supreme People's Court on Printing and Distributing the Revised Cause of Action of Civil Cases: The Notice clearly states: "5. If the legal relationship between the litigants is inconsistent with that of the actual litigation dispute, the people's court shall, when closing the case, change the cause of action according to the nature of the actual legal relationship between the litigants ascertained by the court.
"In judicial practice, both criminal cases and civil cases are the same.
5. According to the concept of first instance, if the appellant files an infringement lawsuit in the court of first instance, then the court of first instance can also rule to dismiss the plaintiff's lawsuit, because there is no dispute of infringement of inheritance rights stipulated by the Supreme Court.
Because the "tort lawsuit" of the Supreme Court has no cause of infringement of inheritance.
So this case will never enter the substantive trial procedure, and it will always be in the procedure?
The provisions of the Supreme People's Court on the cause of action of civil cases stipulates that there are five types of inheritance disputes:
1. Legal inheritance disputes: including inheritance disputes and subrogation inheritance disputes;
2. Testamentary succession disputes: disputes about the form and effect of testamentary succession, the scope of testamentary succession, and the conflict between testamentary succession and legal succession and bequest;
3, the decedent debt settlement disputes;
4. Heritage disputes;
5. Disputes over legacy support agreements.
Tort liability in the Supreme People's Court's Provisions on the Cause of Action of Civil Cases is classified as follows:
1, guardian liability dispute
2. Employer's liability dispute
3. Disputes over tort liability of labor dispatch employees
4. Disputes over the liability of service providers for damages.
5. Disputes over the responsibility of the victim to provide services.
6, network tort liability disputes
7. Liability disputes in violation of security obligations
(1) Responsibility dispute of managers in public places * * *
(two) the responsibility disputes of the organizers of mass activities
8. Responsibility disputes of educational institutions
9, product liability disputes
(1) product producer liability dispute
(2) Liability disputes of product sellers
(3) Liability disputes of product transporters
(4) product warehouse liability disputes
10, motor vehicle traffic accident liability dispute
1 1, medical damage liability dispute
(1) Liability dispute over infringement of patients' informed consent right
(2) medical product liability disputes
12, environmental pollution liability dispute
(1) air pollution liability dispute
(2) Disputes over water pollution liability
(3) Noise pollution liability disputes
(4) radioactive pollution liability disputes
(5) Disputes over the responsibility of soil pollution
(6) Disputes over the liability for pollution caused by electronic waste.
(7) solid waste pollution liability disputes
13, highly dangerous liability dispute
(1) dispute over liability for damage to civil nuclear facilities
(2) Civil aircraft damage liability disputes
(3) Disputes over liability for damage caused by possession and use of highly dangerous substances.
(4) Disputes over liability for damages caused by highly dangerous activities.
(5) Disputes over liability for damage caused by loss or abandonment of highly dangerous substances.
(6) Disputes over liability for damage caused by illegal possession of highly dangerous substances.
14, dispute over liability for damages caused by raising animals
15, dispute over liability for goods damage
(1) Disputes over liability for damage caused by falling off or falling objects.
(two) disputes over the responsibility for the collapse of buildings and structures.
(3) Disputes over liability for damage caused by unidentified throwing or falling objects.
(4) Disputes over liability for damage caused by the collapse of stacked objects
(5) Disputes over responsibility for blocking roads.
(6) Disputes over liability for forest tree breakage damage
(seven) disputes over the liability for damage to ground buildings and underground facilities.
16, electric shock personal injury liability dispute
17, obligation to help workers suffer from liability disputes.
18, dispute over the liability for injury of persons who have done good deeds.
19, notarization of disputes over liability for damages
20, excessive defense damage liability disputes
2 1, dispute over liability for emergency hedging damage
22, in Hong Kong, Macao Special Administrative Region, the military tort liability disputes.
23, railway transportation damage liability disputes
(1) personal injury liability dispute in railway transportation
(2) Disputes over liability for damage to railway transport property
24, water transport damage liability disputes
(1) dispute over liability for personal injury in water transportation
(two) disputes over the liability for property damage caused by waterway transportation.
25, air transport damage liability disputes
(1) air transport personal injury liability dispute
(2) air transport property damage liability disputes
26 disputes over liability for damages caused by property preservation before application.
27. Disputes over liability for damages caused by application for pre-litigation evidence preservation.
28. Disputes over liability for damages caused by property preservation in application proceedings.
29. Disputes over liability for damages caused by evidence preservation in application proceedings.
30. Disputes over liability for damages arising from the prior execution of the application.
Obviously, there is no infringement in the inheritance dispute, and there is no inheritance in the infringement dispute, then the road of rights relief of the parties will always stop at the door of the dispute over the cause of action; As we all know, there is no right to relief, which means there is no right.
Six, any civil dispute is a dispute of rights and obligations, which inevitably involves the infringement of rights; It is unscientific, unrealistic, impossible and undesirable to completely separate and oppose inheritance disputes from infringement disputes; If the cause of action is inconsistent, it is a direct violation of the law and relevant judicial interpretations to dismiss the prosecution.
For example, in a contract dispute, the breaching party not only violates the contract, but also infringes on the right of the observant party to enjoy the benefits of the contract. Therefore, the contract law gives the parties the right to choose between tort litigation and contract litigation; Another example is inheritance disputes. The plaintiff thinks that the defendant has violated his inheritance right and demanded his due inheritance. The plaintiff has no choice as to whether this dispute is an inheritance dispute or an infringement dispute. The plaintiff only needs to state the facts and reasons according to Article 1 19 of the Civil Procedure Law "There are specific claims, facts and reasons".
In this case, the appellee's behavior violated the Inheritance Law, not the Tort Liability Law, and violated the legitimate rights of the heirs, such as "inheritance and non-inheritance, more or less inheritance", which led to disputes in this case. Whether this case should be an "inheritance dispute" or an "infringement dispute" is indeed beyond the appellant's authority.
I am here to convey
XX intermediate people's court
Appellant:
XX，XX，XX，XX
Dismissed the prosecution and appealed to Appellant xx County Guancun Rural Credit Cooperative.
Address: Renmin Middle Road, the county seat of xx County.
Legal representative Zhao xx, director.
Appellee Wang xx, male, 50 years old, Han nationality, lives in Shenhe Village, xx Town, Baofeng County.
Appellee Song xx, male, 40 years old, Han nationality, lives in Gu Duo Village, xx Town, Baofeng County.
Appeal request:
1. Revoke the civil ruling of (20xx)x Minchuzi No.216 according to law and send it back to xx County People's Court for retrial;
2. All litigation costs in this case shall be borne by the two appellants.
Facts and reasons:
The appellant refuses to accept the civil ruling of xx County People's Court (20xx)x Minzichu No.216, and now appeals. The specific facts and reasons of the appeal are as follows:
1. The court of first instance rejected the appellant's prosecution, which did not conform to the provisions of Article 108 of the Civil Procedure Law.
In this case, the appellee Wang xx borrowed money and Song xx provided guarantee. In addition to the signatures of Wang xx and Song xx, the borrower also stamped the official seal of the ceramic factory in xx Town, xx County.
The court dismissed the prosecution on the grounds that Wang xx was listed as the defendant and obviously violated the law.
The appellant believes that there are some defects in the loan collection agreement supported by the loan receipt, loan contract and other materials provided by the credit union, which is not enough to affect the determination of the facts of the case; Moreover, the second defendant in this case was absent, did not give evidence, and gave up the right to state and defend. In the case that the defendant gives up the defense and proof, the court should make an unfavorable judgment against the defendant in accordance with the lawsuit of the credit union!
In addition, Article 108 of the Civil Procedure Law requires "a clear defendant &; Rdquo does not require a qualified defendant. The appellee listed it very clearly in the appellant's lawsuit. As for whether the defendant is qualified, it is a matter of entity review rather than procedural review. The result of the defendant's disqualification can only be to dismiss the lawsuit, not to dismiss it!
Two, the court of first instance to determine the amount of the case acceptance fee is wrong.
In his reply to the Higher People's Court of Henan Province, the Supreme People's Court clearly stipulated that if he refuses to accept the prosecution or rejects the case of objection to jurisdiction, the acceptance fee will be charged according to the non-property case.
According to the regulations of Henan Higher People's Court, the acceptance fee for such cases is 50 yuan.
The court of first instance found that the case acceptance fee of 826 yuan was borne by the appellant, which violated the above provisions!
To sum up, the court of first instance ruled that the dismissal of the appellant's prosecution did not comply with the law, and it was wrong to determine the litigation acceptance fee!
I am here to convey
Xxx intermediate people's court
Appellant Baofeng xx Rural Credit Cooperative
20XX April 25th
Appellant (plaintiff in the first instance, counterclaim defendant): (name province)
Appellee (defendant in the original trial, counterclaim plaintiff): (name province)
Appellee (defendant in the original trial, counterclaim plaintiff): (name province)
Appellee (defendant in the original trial, counterclaim plaintiff): (name province)
Appellee (defendant in the original trial, counterclaim plaintiff): (name province)
The appellant refused to accept the ruling of Bao 'an District Court (20xx)XX Law ShaominchuziNo. civil ruling. XX, and filed an appeal in accordance with the law, requesting the second instance to revoke the ruling of the first instance in accordance with the law, and instructing the first instance to conduct a substantive trial.
Facts and reasons:
First, the court of first instance ruled that the dismissal of the prosecution violated the provisions of Article 1 19 of the Civil Procedure Law. The first-instance judgment ruled that the reason for dismissing the prosecution was: "We believe that the plaintiff's equity has been registered in the name of the defendant (a province), and the revenue from the canteen contract in dispute is collected by North XX. If the plaintiff thinks that the defendant (a famous province) has infringed on his legal inheritance right, he shall file a lawsuit for infringement, and he claims his rights on the grounds of inheritance right, which does not meet the conditions for prosecution "(see page 6 of the first-instance judgment). It is obviously a violation of Article 1 19 of the 20xx version of the Civil Procedure Law to rule that the prosecution is dismissed simply because the cause of action does not meet the conditions for prosecution: "The prosecution must meet the following conditions:
1. The plaintiff is a citizen, legal person and other organization that has a direct interest in this case;
2. There is a clear defendant;
3, there are specific claims and facts and reasons;
4. It belongs to the scope and jurisdiction of the people's court to accept civil litigation. "
At the same time, "the Supreme People's Court on printing and distributing the revised; The notice clearly stipulates: "2. People's courts at all levels should have a correct understanding of the nature and function of the cause of action of civil cases. They should not equate the revised provisions of the cause of action of civil cases with the acceptance conditions stipulated in Article 108 of the Civil Procedure Law of People's Republic of China (PRC), and should not rule not to accept or reject the prosecution on the grounds that there is no corresponding cause of action in the revised provisions of the cause of action of civil cases, which will affect the exercise of the parties. Obviously, the first trial also violated the notice of the Supreme Court.
Two, determine the cause of action is the authority and responsibility of the court, the parties have no right and obligation to determine the cause of action, the plaintiff only needs to "have specific claims and facts and reasons". The appellant in this case never said that it was the cause of inheritance in the original trial. I don't know what is the basis of the appellant's claim in the first instance. Of course, the appellant did not consider that the cause of action was "tort action". The appellant only made specific claims and facts and reasons. As for the specific claims and statements of factual reasons, words such as inheritance, infringement or contract cannot be used as the basis for determining the cause of action.
Three, even if the plaintiff's appeal is different from the legal relationship of the court to find out the facts, the court should also exercise the power of interpretation, and the parties should change the cause of action or change the cause of action according to law. The right of interpretation is not only the right of a judge, but also the obligation of a judge. The Supreme Court has made it clear that if the facts ascertained are different from the legal relationship of the plaintiff's prosecution, the court should exercise the right of interpretation to the parties, inform them and ask them whether to change the cause of action. If the parties are willing to change the cause of action according to the judge's interpretation right, the court shall try and make a judgment according to the changed cause of action; If the parties insist on not changing, the court may make a judgment according to the requirements of the parties. It is against the provisions of the Supreme Court to directly rule that the prosecution is dismissed without explanation.
4. If the cause of action determined by the court of first instance is different from that determined at the time of filing, the court of first instance can and should make a judgment directly based on the cause of action determined after investigation, and should not dismiss the prosecution. Provisions of the Supreme People's Court on Printing and Distributing the Revised Cause of Action of Civil Cases: The notice clearly states: "5. If the legal relationship between the litigants is inconsistent with the legal relationship of the actual litigation dispute, the people's court shall change the cause of action according to the nature of the actual legal relationship between the litigants ascertained by the court. " In judicial practice, both criminal cases and civil cases are the same.
5. According to the concept of first instance, if the appellant files an infringement lawsuit in the court of first instance, then the court of first instance can also rule to dismiss the plaintiff's lawsuit, because there is no dispute of infringement of inheritance rights stipulated by the Supreme Court. Because the "tort lawsuit" of the Supreme Court has no cause of infringement of inheritance. Then the case will never enter the substantive trial procedure and drift in the procedure forever.
The provisions of the Supreme People's Court on the cause of action of civil cases stipulates that there are five types of inheritance disputes:
1. Legal inheritance disputes: including inheritance disputes and subrogation inheritance disputes;
2. Disputes over testamentary succession: disputes arising from conflicts between testamentary succession, the form and effect of testamentary succession, the scope of testamentary succession, testamentary succession and legal succession and bequest;
3, the decedent debt settlement disputes;
4. Heritage disputes;
5. Disputes over legacy support agreements.
Tort liability in the Supreme People's Court's Provisions on the Cause of Action of Civil Cases is classified as follows:
34 1, guardian liability dispute
342, employer liability disputes
343, labor dispatch employees tort liability disputes
344. Disputes over the liability of service providers for damages.
345, provide labor service providers injured liability disputes
346, network tort liability disputes
347, in violation of the obligations of security responsibility disputes
1, public * * * place manager responsibility dispute
2. Responsibility disputes of the organizers of mass activities
348, educational institutions responsibility disputes
349, product liability disputes
1, product producer liability dispute
2, product sellers liability disputes
3, product carrier liability disputes
4, product warehouse responsibility disputes
350, motor vehicle traffic accident liability disputes
35 1, medical damage liability dispute
1, dispute over liability for infringement of patients' right to informed consent
2, medical product liability disputes
352, environmental pollution liability disputes
1, air pollution liability dispute
2, water pollution liability disputes
3, noise pollution liability disputes
4, radioactive pollution liability disputes
5, soil pollution liability disputes
6, electronic waste pollution liability disputes
7, solid waste pollution liability disputes
353, highly dangerous liability disputes
1, civil nuclear facilities damage liability dispute
2, civil aircraft damage liability disputes
3, possession, use of highly dangerous goods damage liability disputes
4, highly dangerous activities damage liability disputes
5, lost, abandoned highly dangerous goods damage liability disputes
6, illegal possession of highly dangerous goods damage liability disputes
354, animal damage liability disputes
355, object damage liability dispute
1. Liability dispute for damage caused by falling objects from high altitude.
2, buildings, structures collapse damage liability disputes
3, unknown throwing objects, falling objects damage liability disputes
4. Disputes over liability for damage caused by the collapse of stacked objects.
5, * * * * road obstruction damage liability dispute
6, forest damage liability disputes
7, the ground buildings, underground facilities damage liability disputes
356, electric shock personal injury liability dispute
357, the obligation to help inductrial injury worker liability dispute
358, courageous personnel injury liability dispute
359, notarization damage liability dispute
360, excessive defense damage liability disputes
36 1, dispute over liability for emergency hedging damage
362, in Hong Kong, Macao Special Administrative Region, the military tort liability disputes.
363, railway transportation damage liability dispute
1, personal injury liability dispute in railway transportation
2, railway transportation property damage liability disputes
364, water transport damage liability disputes
1, disputes over personal injury liability in waterway transportation
2, water transport property damage liability disputes
365, air transport damage liability disputes
1, air transport personal injury liability dispute
2, air transport property damage liability disputes
366. Disputes over liability for damage caused by application for pre-litigation property preservation.
367. Disputes over liability for damage caused by application for pre-litigation evidence preservation.
368. Disputes over liability for damages caused by property preservation in application proceedings.
369. Disputes over liability for damages caused by evidence preservation in application proceedings.
370, disputes arising from the application for the implementation of liability for damages.
Obviously, there is no infringement in the inheritance dispute, and there is no inheritance in the infringement dispute, then the road of rights relief of the parties will always stop at the door of the cause of action dispute; As we all know, there is no right to relief, which means there is no right.
Six, any civil dispute is a dispute of rights and obligations, which inevitably involves the infringement of rights; It is unscientific, unrealistic, impossible and undesirable to completely separate and oppose inheritance disputes from infringement disputes; If the cause of action is inconsistent, it is a direct violation of the law and relevant judicial interpretations to dismiss the prosecution. For example, in a contract dispute, the breaching party not only violates the contract, but also infringes on the right of the observant party to enjoy the benefits of the contract. Therefore, the contract law gives the parties the right to choose between tort litigation and contract litigation; Another example is inheritance disputes. The plaintiff thinks that the defendant has violated his inheritance right and demanded his due inheritance. The plaintiff has no choice as to whether this dispute is an inheritance dispute or an infringement dispute. The plaintiff only needs to state the facts and reasons according to Article 1 19 of the Civil Procedure Law "There are specific claims, facts and reasons".
In this case, the appellee's behavior violated the Inheritance Law, not the Tort Liability Law, and violated the legitimate rights of the heirs, such as "inheritance and non-inheritance, more or less inheritance", which led to disputes in this case. Whether this case should be an "inheritance dispute" or an "infringement dispute" is indeed beyond the appellant's authority.
I am here to convey
XX intermediate people's court
Appellant:
XX，XX，XX，XX
Reject prosecution appeal 4 civil appeal
Appellant (plaintiff in the original trial): Wang Dianchi, female, Han nationality, from Shi Naian District, Qingdao.
Appellee (defendant in the original trial): Shandong Peace Investment Co., Ltd., the first and second floors of Haichen Building, No.23, Shanda South Road, Licheng District, Jinan City, with the legal representative of the throne and the position manager.
Appellee (defendant in the original trial): crayon, male, Han nationality,/kloc-0, born in September, 979, living at No.8 Hepingli, Jiaozuo City, Henan Province.
The appellant refuses to accept the civil rulingNo. (20xx) Lu 0 1 12 Early Republic of China 123 of Licheng District People's Court of Jinan, and hereby appeals.
Appeal request
1. Revoke the civil rulingNo. (20xx) Lu 01123 of Licheng District People's Court in Jinan according to law;
2. The ruling instructed the Licheng District People's Court of Jinan City to conduct a substantive trial;
3. The litigation costs shall be borne by the Appellee.
Facts and reasons
First, the court of first instance found the facts wrong.
The people's court of first instance found that the case had nothing to do with the criminal case. The [20xx]377 prosecuted by Geely City belongs to the same fact, which is an error in ascertaining the facts. Because this case is different from the criminal case pointed out in the indictment. Public Prosecution of Geely City [20xx]377, whether from the subject or from the legal relationship involved. The appellants in this case are Shandong Peace Investment Co., Ltd. and Crayon Company. Geely City Public Prosecution [20xx] 123 is fearless as an outsider in this case and does not overlap with the parties in this case. The appellant sued the appellee for his crayon guarantee behavior. The guarantee of crayons took place after Huo Yuanjia was taken compulsory measures by the public security organs (Huo Yuanjia was detained on February 15, 20xx, while the guarantee of crayons took place on March 1 1 day, 20xx). The guarantee behavior of crayons (or debt collection behavior) occurred after the completion of Huo Yuanjia's crime, and Huo Yuanjia had been detained in criminal detention at the time of guarantee. Therefore, whether subjectively or objectively, there is no connection between the guarantee behavior of crayons and the crime of doing good deeds. The guarantee behavior of crayons was not evaluated and judged in the case of Geely City Public Prosecution [20xx] No.377 illegally absorbing public deposits. The dispute between the appellee crayons and the appellant is a typical guarantee dispute, which belongs to the category of civil legal relationship and the scope of civil cases accepted by the people's court. The court of first instance found that both of them belong to the same fact, which is obviously a mistake in fact finding.
Second, the court of first instance applied the law wrongly.
Article 7 of the Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Illegal Fund-raising stipulates that "if a relevant unit or individual files a civil lawsuit with a people's court on the same fact or applies for the execution of the property involved, the people's court will not accept it and transfer the relevant materials to the public security organ or the procuratorial organ. If the people's court finds a crime of illegal fund-raising in the process of hearing a civil case or executing it, it shall rule to dismiss the prosecution or suspend the execution, and timely transfer the relevant materials to the public security organ or the procuratorial organ. " . The court of first instance ruled that the appellant's claim was rejected according to the law, which was a mistake in legal understanding and application. It can be clearly seen from this clause that the premise of rejecting the prosecution is that the civil prosecution and the criminal case belong to the same fact.
Moreover, this case is not the same as the criminal prosecution [20xx] No.377 of Geely for illegally absorbing public deposits. If it is not the same fact, it cannot be rejected. This is also reflected in the Supreme People's Court's later "Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases". Article 8 of this interpretation stipulates: "If the borrower is suspected of committing a crime or is found guilty by an effective judgment, the people's court shall accept it." The appellant believes that these two judicial interpretations are not contradictory to the provisions of the intersection of criminal and civil issues, and have only two purposes. First, the defendant's criminal behavior in criminal cases cannot be repeatedly evaluated by criminal and civil. However, it does not prevent the prosecution of the guarantor who does not belong to the scope of criminal case evaluation, and the people's court of the guarantor shall solve it through civil trial. Second, in judicial practice, the proceeds of crime can be returned through criminal cases, so that the victims' losses can be paid off equally from the property involved. There is no need to make judgment or execution by civil means, so as to avoid conflicts of interest and unfairness caused by uneven distribution. In this case, we sued the appellee in order to realize our rights from the guarantor and through the guarantor's property. We will not make a second request for the property involved, but point to the guarantor's property. Therefore, this case will not affect the average distribution of the property involved by the victim through criminal channels.
Even if the relevant provisions of these two laws are in conflict, the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases was promulgated later. According to the provisions of Article 13 of this Interpretation: "If the judicial interpretation previously issued by the Supreme People's Court is inconsistent with these Provisions, it will no longer apply." People's courts should also conduct substantive trials.
Third, the first-instance judgment is inconsistent with the legislative purpose of the legal ruling to dismiss the prosecution.
A very important legislative purpose of the legal decision to dismiss the prosecution is that the relationship between the two parties is not a civil legal relationship, and the people's court cannot or should not handle it by civil trial. The parties can solve it through administrative means, criminal means, or it is more appropriate to solve it through the above means. As far as this case is concerned, if the people's court applies the ruling of dismissing the prosecution, there will be no other remedy for the guarantee dispute between the appellant and the appellee, which will inevitably deprive the appellant of his procedural rights and substantive rights. Deciding to dismiss the prosecution is not in line with the original intention of the law.
To sum up, the appellant thinks that the court of first instance found the facts wrong and applied and understood the law wrong. The appellant hopes that the court of second instance will find out the facts and interpret Article 332 according to the Supreme People's Court's Provisions on the Application of the Civil Procedure Law of People's Republic of China (PRC): "If it is found that the ruling of the people's court of first instance to dismiss the prosecution is wrong, it shall order the people's court of first instance to hear it at the same time as revoking the original ruling". Support the appellant's appeal according to law.
I am here to convey
Ji 'nan Intermediate People's Court
Appellant:
date month year