Taiwan Strait net on August 30 dispatch (Chen Jie of channel gazette reporter's reporter thinks a way / article Tao Xiaomo / caricature) think the accused does not appear in court formerly can hide so that drop, did not think of the result ate to have a deficit greatly however! Be involved in of Chen Mou of the accused person leasehold dispute of a folk, he what serve as the accused does not have front courtyard, be sentenced finally be out of pocket of break a contact.
Yesterday, gazette reporter understands from Siming district court, this courtyard accepts the accused many cases not to appear in court recently bring about " be in an unfavorable situation " case. It is reported, in putting 18 cases that the Hong Mou that borrow a person prosecutes, only person of 4 the accused appears in court, the accused that did not appear in court as a result is sentenced to lose a lawsuit entirely, and the rights and interests of 4 the accused that appear in court got ensuring entirely, 3 nolle prosequi a mediation.
The judge reminds say, think refus is less than front courtyard to join suit, the case is not sentenced, this is a kind of extremely wrong think of a way. Actually, if the accused refus is less than front courtyard, the evidence that the court can provide according to accuser only enters a judgement, the legal consequence of final generation also will be assumed by the accused proper motion.
Typical case: The accused does not appear in court, accuser triumph appeals to
Not long ago, shape of accuser Hong Mou accuses the accused Chen Mou. Sue according to Hong Mou say, bilateral number signed loan contract before New Year, chen Mou to Hong Mou loan 130 thousand yuan, monthly interest is led 3% . Loan that day, hong Mou with cash means consign this, chen Mou issued receipt. After loan, because old some is straight not reimbursement, hong Mou sues Siming district court.
During the case is tried, court of classics Siming district is lawful subpoena, chen Mou does not join suit to front courtyard without warrant refus, yi Weiyu of any forms rejoin. Below the case that refutes according to giving without contrary card, the relevant evidence that the court can provide according to Hong Mou only and judicial record enter a judgement.
First instance court decision thinks, the receipt for a loan that Hong Mou provides and receipt can prove to legitimate civilian leasehold concern is fastened between its and Chen Mou, chen Mou did not fulfil the obligation that repay captital with interest according to it, already made break a promise, hong Mou appeals to beg gold of its countervail repayment of capital, should grant to support. As a result of bilateral agreement monthly interest 3% , already exceeded law to protect limit apparently, the proper motion when Hong Mou is sued is adjusted for monthly interest 2% , so the court gives support.
Accordingly, chen Mou of the accused of requirement of first instance court decision should be returned still accuser loan principal reachs accrual 130000 yuan, accrual leads the standard of 24% to calculate by annual interest.
Truth of behind the curtain: Hit lawsuit 18 times, only 4 the accused appear in court
Actually, by the more than Chen Mou that Hong Mou tells a court. According to judge introduction, hong Mou sues civilian leasehold dispute to add up to in put on record of Siming district court since this year 18, the leasehold amount with these the largest cases is 230 thousand yuan, the smallest leasehold amount is nearly 10 thousand yuan, average every leasehold amount is close 100 thousand yuan. In these cases, accuser Hong Mou all advocates the accused to its loan, have loan contract and receipt evidence, and did not turn mostly Zhang record, receipt all holds bright money with cash means consign.
The accused person that should tell according to 4 says, accuser Hong Mou is the profession is put actually borrow a person, he and other identity are unidentified person establish usurious gang jointly, this gang is actual the 10%~40% of the loan amount that the loan principal of lend all agrees under the contract differs, press accrual of every 10 days of standard collection high specified number of 10% .
Current, in 18 cases that prosecute in Hong Mou, only 4 the accused should appeal to to front courtyard, other defendant all did not attend front courtyard careful. And the case that these 4 the accused should appeal to, all yield with accuser finish, among them 3 cases prosecutor nolles prosequi, additional a case reachs mediation. The case that 3 accuser nolle prosequi actively, because the accused rejoins,be say, actually the accused already with turning Zhang means repaid loan. Another accuser accepts mediation, because the accused has,also be turn Zhang record is card, proof the accused had repaid major borrow or lend money.
Notable is, same counterplea was made in respective front courtyard careful to 4 the accused of front courtyard, borrow with respect to debtor namely after money, already with turning Zhang means repaid partial loan paid a part interest, but, accuser Hong Mou hid this reimbursement fact however.
Be in 4 cases this in the case that the accused should appeal to, judge discovery, actually the accused majority had repaid all or partial loan, but fact of this be related was hidden of purpose however when accuser Hong Mou is sued. Regrettablly is, because of the others 14 the accused did not appear in court, fail contradictory, quote, the evidence that so the court can provide according to accuser only enters a judgement.
Phenomenal investigation: Many the accused " waive the right " , have accuser quote only
Not come singly but in pairs. Recently, accuser A article also because of civilian leasehold dispute, prosecute 10 cases to Siming court, 10 defendant are only a the accused should appeal to. All of result the accused appeals to, accuser agreed to mediate with respect to concession.
In 9 cases of the others, a Wenjun was not referred turn Zhang proof, sue by a piece of receipt for a loan only when put on record, its refer later turn the time on paragraph proof is as corresponding as time of inscribe of receipt for a loan also do not go up. Turn because of what Awendi hands in paragraph proof from imperfect, reason is deducted one by one when forensic court decision. Nevertheless, the case is put possibly also in the accused to already repaid actually partial loan but because did not arrive quote of front courtyard counterplea, so forensic not be in a position discovers and make more accurate judgement. "Same fact, the accused answer to should not appeal to, the result may be big different. " the judge says, quite the desk of civilian leasehold issue of one part, it is finance company perhaps puts the case that borrows a person to sue borrower not to return money. The accused namely borrower often is less than front courtyard counterplea, quote, the evidence that the court can provide according to accuser only enters a judgement, the result often is finance company or put borrow a person to win the lawsuit.
To this, the judge reminds say, think refus is less than front courtyard to join suit, the case is not sentenced, this is the wrong think of a way of a kind of extreme. Attend front courtyard careful personally only, undertake the court argues, to the justice position with him illuminate of the other side, ability makes the judge knows details of a case in the round. The accused does not join suit to front courtyard via lawful subpoena refus, do not affect the cognizance of the case, the court can be mixed according to existing evidence legal judgment by default, safeguard legitimate rights and interests lawfully, make judicial court decision. The accused refus is less than front courtyard, the law of so final generation is sequential also will by burden of the accused proper motion.
Lawyer argument
How doesn't the accused appear in court the judge is sentenced?
Fujian from sunshine Lin Minhui of attorney office director's lawyer: Basis " code of civil law of People's Republic of China " the 144th regulation: "Subpoena of ticket of the accused classics, be less than front courtyard without warrant refus, perhaps permit midway to retreat front courtyard without the court, can judgment by default. " accordingly, below the circumstance that is less than front courtyard in the accused refus, the court is OK judgment by default. Additional, " code of civil law of People's Republic of China " the 84th regulation points out: "Suffer service person to miss, the other way that perhaps provides with this section cannot of service, announcement service. Since the day that issues announcement, through 60 days, regard service as namely. Announcement service, bright reason and course ought to be remembered in records. " this shows, the announcement that can take announcement service program to finish pair of the accused in courtyard of laxative remedy of this kind of circumstance is compulsory, announcement service announcement of 60 days period at the expiration of one's term of office, even if the accused does not appear in court, judgment by default of forensic Yi Ke. But, announcement service has strict applicable requirement: Firstly, evidence proves to suffer service person to miss; Secondly, prove to suffer service person to miss without evidence, but direct service, service taking place, entrust service, mail to send the means such as service to cannot get litigant writ service those who send a person.
