Juridical argument: People court accepts level in put on record, to the litigant request of accuser, normally the circumstance falls, make a form examine only, do not make essence examine. Whether to have factual basis to the forehead of the mark of accuser appeal, should deny give support, stay wait for entity to try level to examine maintain. But, put forward in the accused administer demur, view accuser is intended the forehead of mark of empty expensive litigation, level of drive up case is in charge of the circumstance of administer to fall, people court ought to request to give the essence of certain level is examined to the lawsuit of accuser. Belong to via examining solid, rule lawfully move the case send relevant court below cognizance.
Top people court
Civil ruling book
(2017) top magic art civilian administer eventually 120
Appellant (first trial accuser) : Pan Lianhua, male, was born on Feburary 2, 1958, the Han nationality, stay in Zhejiang to visit lukewarm mountain town.
Entrust litigant agent: Zhang Zhe, solicitor of office of attorney of Heibei ginger bell.
Entrust litigant agent: Ceng Yang bright, solicitor of office of attorney of Heibei ginger bell.
Appellee (first trial the accused) : Zhejiang saves people government, city of Hangzhou of province of abode ground Zhejiang visits government office region 8.
Legal representative: Yuan Jiajun, should save a governor.
Entrust litigant agent: Xie Jianming, male, this province legal system does a staff member.
Entrust litigant agent: Li Genmei, solicitor of office of attorney of classics of Zhejiang short for Zhejiang Province.
Appellee (first trial the accused) : Fine government of the people that start city, abode ground Zhejiang is saved fine road of the square that start city an administration center 3 buildings.
Legal representative: Hu Haifeng, this city mayor.
Entrust litigant agent: Ma Zhengliang, zhejiang country is proud attorney office solicitor.
Entrust litigant agent: Zhou Hong, zhejiang country is proud attorney office solicitor.
Because appellant Pan Lian Hua saves people government with appellee Zhejiang, fine dispute of contract of construction of project of construction of government of the people that start city one case, refuse to obey Zhejiang saves senior people court (2016) 14 civil rulings at the beginning of civilian of short for Zhejiang Province, put forward to appeal to this academy.
Appeal weighs Pan Lianhua: (one) the specified number that court of first instance knows sign of lawsuit of definitive edition case namely without the program such as sessional cognizance is not worth 500 million yuan of mistake. According to the evidence that Pan Lianhua provides, case experience project is actual cost outclass 500 million yuan. Measure an issue about the project of this case controversy, beard classics open a court session is tried or judicatory appraisal ability decides. The specified amount that court of first instance should not hold Pan Lianhua to raise litigant bid intentionally leaves administer alone with avoid class. (2) ruling of court of first instance moves this case send to fine permit court of city intermediate people administer, disobeyed " top people court about adjusting senior people court and intermediate people court administer first instance the announcement of standard of case of civilian trade issue " (the law is sent [2015]7 date) regulation. This announcement stipulates the forehead with litigant mark is a standard to decide class leaves administer alone clearly, zhejiang saves senior people court administer the first instance that the forehead of litigant mark is 500 million yuan of above case of civilian trade issue. The forehead of this case lawsuit mark is 500 million yuan, answer to save senior people court to try by Zhejiang. (3) this case has bigger social effect, save senior people court to try by Zhejiang, be helpful for finding out a fact and settle dispute. On put together, pan Lianhua requests cancel Zhejiang to save senior people court (2016) 14 civil rulings at the beginning of civilian of short for Zhejiang Province, rule Zhejiang of this brief of a case saves senior people court to continue to try.
Government of Zhejiang province people, fine government of the people that start city replies to a charge say: First instance adjudicates cognizance fact is clear, applicable law is correct, the process is legal, should grant to maintain. (one) the reason that sues from Pan Lianhua and prosecution evidence look, the forehead of the mark of its appeal lacks evidential proof apparently, level of the specified number that is put in mark of intended empty expensive litigation, avoid provides the case of administer. Case experience project already managed by owner delegate, inspect on July 28, 2000 delegate, construction square delegate finishs complete final accounting of revenue and expenditure jointly, total prices of final accounting of revenue and expenditure is 46816761.06 yuan, pan Lianhua just is represented as construction sign on file of complete settle accounts affirm. The capital that Pan Lianhua provides Hangzhou the canal [condition of short for Zhejiang Province paragraph] channel transforms a project revetment of the first contract builds cost of project of experience of record of record of book of project complete settle accounts to be more than yuan 170 million, the total amount of settle accounts of case experience project that the project hand over a completed project that its supply checks and accept certificate account is three hundred and fifty-three million two hundred and twenty-six thousand seven hundred yuan, between evidence self-contradictory, and gap is huge. In addition, zhejiang new house built limited company 2004 ever with respect to money of case experience project to lodge a complaint, the forehead of litigant mark is 469.8 million yuan, hind it is the frontal change of the mark of appeal 200 million yuan because of financial insolvency legal cost, the forehead of the litigant mark of case experience project is put in the case of optional variation. (2) the forehead of this case lawsuit mark is not worth 500 million yuan, answer lawfully by intermediate people court or court of basic level people administer, court of first instance considers the social influence of this case and project seat, rule this case moves send fine permit court of city intermediate people administer, have at the law according to. On put together, government of Zhejiang province people, fine government of the people that start city thinks Pan Lianhua abuse appeals to authority, the forehead of the mark of appeal lacks corresponding proof proof, the jurisdictional demur that requests to reject Pan Lianhua appeals.
This academy thinks via examining, this case the focal problem of controversy of 2 careful party is: 1. People court is in phase of put on record whether examine accuser level of case of the forehead of mark of intended empty expensive litigation, drive up manages administer problem; 2. This case should deny court of intermediate people of You Jiaxing city administer.
(one) be in about people court phase of put on record whether the frontal issue that examines mark of accuser empty expensive litigation. But from the following 3 respects undertake an analysis. The first, register the angle of order from put on record. Put on record is registered make requirement people court hear a case lawfully, accomplish have case stand surely, have appeal to manage surely, ensure party adequately appeal to authority, but this does not mean people court to be sued to party in phase of put on record do not undertake checkup. Contrary, appeal to authority to ensure party standard, effective exercise, people court ought to is opposite lawfully in phase of put on record of party sue undertake necessary examine. " code of civil law of People's Republic of China " be opposite the seventeenth times to the 20th 4 class courts of our country administer first instance civil case made a provision respectively. Top people court is right court of tall, intermediate people administer the frontal standard Yi Youming of the litigant mark of case of civilian trade issue provides first instance truly. Afore-mentioned regulations accept various court according to severally belong to oneself administer first instance case of civilian trade issue. Level of case of the forehead of mark of intended empty expensive litigation, drive up provides party administer, violated afore-mentioned regulations, disturbed put on record registers order. People court gives to this examine, it is the duty place that upholds order of the put on record that register. The 2nd, congcheng believes litigant angle. Honest credence principle is the basic principle of civil suit, party exercise right, fulfill obligation to ought to follow honest credence principle. Class of case of the forehead of mark of intended empty expensive litigation, drive up leaves administer alone, it is the abuse to appealing to authority, violated honest credence principle. People court gives to this examine, it is to defend lawsuit the sincere letter, inevitable demand that forestalls party abuse to appeal to authority. The 3rd, from the angle that lawsuit collects fees. Pay legal cost lawfully, it is the legal obligation of civil litigant, but be not is pair of price that party starts civil suit. Party mentions civil suit must the requirement that be good law sets, to jurisdictional people court is sued, do not get avoid law to provide the provision of administer about level. Although according to " litigant expenses pays way " regulation, party should pay legal cost by the forehead of litigant mark, legal cost by lose a lawsuit square burden, the legal cost of the frontal place correspondence that the party of the forehead of mark of empty expensive litigation will assume the litigant award that did not win forensic judge support finally, for its the behavior of the forehead of mark of empty expensive litigation bears certain legal consequence, but this does not mean party to be able to assume legal cost to be cost, the forehead of mark of intended empty expensive litigation, raise case class to leave administer alone, will answer originally by the court below administer case of civilian trade issue, drive up is tried to ranking court. The place on put together is narrated, people court is opposite in phase of put on record party whether level of case of the forehead of mark of empty expensive litigation, drive up is in charge of administer problem to undertake checkup, it is to ensure party standard exercise to appeal to authority, defend lawsuit the inevitable requirement of the order of sincere letter and put on record that register, do not damage party to appeal to authority. Of course, people court is opposite in phase of put on record party whether of the forehead of mark of empty expensive litigation examining is to have limit, conditional, cannot replace entity to try the job. Normally case falls, people court sues referred data to whether be accorded with around accuser only " code of civil law of People's Republic of China " the 119th the 3rd about " have specific litigant request and fact, reason " the regulation undertakes checkup, give to telling the forehead of asked bid to should be denied formerly support, stay wait for case substance to try level to solve. But the view of the specified number that raises bid of accuser empty expensive litigation in the accused, below the case that offers level to provide administer exception at this point, people court answers accuser level of case of the forehead of mark of expensive litigation of whether intended empty, drive up undertakes checkup administer. Be like via examining, level of case of the specified number that accuser puts in mark of intended empty expensive litigation really, drive up provides the case of administer, people court can maintain the level that the accused raises to be in charge of administer demur to hold water lawfully, the ruling moves the case send jurisdictional people court is tried. Level of case of the forehead of mark of expensive to intended empty litigation, drive up provides the case of administer, should from advocate objective two respects give hold. Subjective go up, accuser has the specified number that passes mark of empty expensive litigation to leave the intent of administer alone with class of drive up case, leave administer alone for avoid class namely, raise case careful level and the forehead of mark of intended empty expensive litigation. The forehead of the litigant sign that accuser holds cannot receive share of people court judge possibly or sum support, but subjective go up and leave administer intent alone without avoid class, do not be in this. Go up objectively should accord with two conditions. The forehead of the mark that is accuser appeal lacks a basis apparently, include to lack corresponding evidence to prop up, main evidence department is forged, the existence between evidence is apparently contradictory, and devoid law basis, people court classics is preliminary the high case of frontal existence empty that investigates the award that can affirm accuser appeal; The class of case of behavior enough drive up of the 2 foreheads that are mark of accuser empty expensive litigation leaves administer alone.
" top people court provides administer demur case about trying civil level the regulation of a certain number of problems " undertake in phase of put on record to people court level is examined administer also made. This " set " the first regulation: "The accused is being referred rejoin jurisdictional objection raises during shape, think to suffer courtyard of civil code telling a person to disobey level to set administer, case ought to by ranking people court court of junior perhaps people administer, suffer courtyard of civil code telling a person to ought to be examined, be in since the day that hears objection inside 15 days make a ruling: (one) demur does not hold water, the ruling is rejected; (2) demur holds water, the ruling moves send have jurisdictional people court. The ruling moves send have jurisdictional people court..
This case Pan Lianhua saves people government with Zhejiang, fine government of the people that start city is the accused, save to lodge a complaint of senior people court to Zhejiang, the request is sentenced your two the accused pay Beijing Hangzhou the canal jointly (fine promote paragraph) channel transforms money of project of project the rest to reach pay tardily penalty due to breach of contract adds up to 500 million yuan. But the secretary of settle accounts of complete of case experience project that Pan Lianhua provides carries cost of case experience project to be 2778753227 yuan, the money of total prices of settle accounts of complete of case experience project that project hand over a completed project checks and accept certificate account is three hundred and fifty-three million two hundred and twenty-six thousand seven hundred yuan, save people government with Zhejiang, fine government of the people that start city offers by owner delegate, inspect manages delegate and Pan Lianhua represent construction to just sign final statement of affirmed cost of case experience project is carried bright project final accounting of revenue and expenditure; The capital that its provide Hangzhou the canal fine start paragraph of 2.8km ship paragraph revetment adds senior engineer Cheng (the partial project in fastening case experience project) construction contracts the contract total prices of contract account is twenty-five billion and twenty-seven million four hundred and fifty-one thousand six hundred yuan, the money of total prices of settle accounts of case experience project that the cost of case experience project of the account of book of complete settle accounts that its offer outclass and project hand over a completed project check and accept certificate account. The evidence that Pan Lianhua provides does not accord with constant manage apparently, existence is apparently contradictory between evidence, the forehead of the mark of 500 million yuan of lawsuit of its appeal lacks evidence to prop up. Its are subjective on level of case of the forehead of dummy lawsuit mark, drive up is in charge of the intent of administer apparent. Fine government of the people that start city is referred in first instance rejoin level put forward to provide administer exception during shape, think this case does not belong to Zhejiang to save senior people court administer first instance case of civilian trade issue, ying Youjia permits court of city intermediate people administer. After court of first instance is examined lawfully, level of case of the specified number that cognizance Pan Lianhua puts in mark of intended empty expensive litigation, drive up provides the case of administer, the forehead of the mark of real dispute is not worth this case 500 million yuan, do not have undeserved. Pan Lianhua should not be in about court of first instance a:appellant reason that phase of put on record has checkup to the forehead of the litigant mark of its appeal, cannot hold water.
(2) should deny court of intermediate people of You Jiaxing city about this case administer problem. " top people court about adjusting senior people court and intermediate people court administer first instance the announcement of standard of case of civilian trade issue " (the law is sent [2015]7 date) the first regulation, party abode ground all is in accept a court the first instance of area under administration of located and provincial administration in case of civilian trade issue, zhejiang saves senior people court administer the forehead of litigant mark first instance of 500 million yuan of above case of civilian trade issue. The forehead of this litigant sign that case Pan Lian Hua holds 500 million yuan, lack a basis apparently, level of case of the forehead of mark of existence empty expensive litigation, drive up provides the case of administer. Accordingly, court of first instance identifies the forehead of mark of lawsuit of definitive edition case to be not worth 500 million yuan, did not achieve this courtyard administer standard, consider the social impact of this case integratedly, move this case lawfully send to seat of case experience project fine permit court of city intermediate people administer, do not have misgivings. This proposal that offers about Pan Lianhua has greater society to affect, by Zhejiang province senior people court hears the view that be helpful for finding out a fact and settles dispute, although have certain rationality, but this case does not form court of first instance administer the legal particulars of a matter of this case. Court of first instance did not support this view of Pan Lianhua, also do not have undeserved. The appeal that hears a case about ruling court of first instance continues to Pan Lianhua requests, this academy does not grant to support.
On put together, ruling of court of first instance moves this case send fine promote court of city intermediate people to handle, regulation of be good law. According to " code of civil law of People's Republic of China " the 170th the first the first, the 171st regulation, the ruling is as follows:
Reject appeal, maintain original ruling.
This ruling is final judgment ruling.
Presiding judge Wang Jun
Judge Wang Zhanfei
Judge Ma Dongxu
Two years on September 22
Admire of beautiful of judge assistant the Kingdom of Wei
Clerk Lv pretties
Source is top people court court of the 3rd circuit
