Relate case story, analyse legal principle human relationship.
Common people of press close to lives, disseminate legal knowledge.
Establish law belief, advance law construction.
? How be in the story of others
Master powerful legal weapon?
? How to carry origin and development of details of a case
Is manage solution law applicable?
Walk into small letter of government of Heilongjiang tall courtyard together " law is built year " special plan -- [dragon way says case] column, the likelihood that we tell about is not your story, but it is the story beside you certainly however.
Case origin?
Graph
Book
Brief
Interpose
The case that this book place chooses is mixed with top people court the case of final judgment of senior people court is given priority to, include case of partial new type, difficulty complex case, but overall with familiar pattern case is given priority to, through analysing referee train of thought, of outstanding case can draw lessons from a meaning, promote those who lead similar case to be the same as case sentence together. This book text is divided in all for 9 chapters, each chapter or section fall to all set introduction, the basic idea that help reader knows this rule quickly or section place contains and overview sex content, next paragraphic passing the form that particular case analyses, abstraction gives the main judge regulation of some kind of case.
6 wells of company of A coal estate and B coal are industrial coal of company, B is industrial one well property damages of company issue desk
[Record date] (2015) the word at the beginning of black Gao Limin the 3rd
Details of a case
6 wells of company of A coal estate saved tall courtyard to sue B coal to H 2015 coal of industrial company, B is industrial one well of company, ask its compensate for illegal exercise the loss that to company of A coal estate 6 wells cause more than yuan 150 million, offer H to save coalfield ground to pledge 2 0 4 prospecting teams are issued " 6 well coal-bed survey report of company of estate of coal of one well of B coal company, A " as evidence.
One well of industrial company is in B coal H of introversion of legal time limit saves tall courtyard to raise jurisdictional objection, think: Although 6 wells of company of A coal estate hold sign 100 million multivariate, but the forehead of the litigant sign that confirms without any evidence its advocate, should not maintain lawfully, the irregularity with serious existence of forensic put on record and fault behavior, h province tall courtyard is done not have to this case jurisdictional, this case should save cognizance of D city quadrangle by H. After court of first instance makes jurisdictional demur rule, b coal is industrial industrial company all puts forward coal of one well of company, B appeal, a:appellant application recalls again after, ruling of reason first instance already produced legal effectiveness.
The court thinks
According to civil level canal administer demur case sets the 10th provision, "The level of first instance civil case that approves via the supreme court provides the provision of administer standard, ought to make the basis that leaves administer demur case alone to try civil step " . According to " H saves tall courtyard the regulation that about saving forensic first instance completely class of case of issue of civil, civilian trade leaves administer alone " (revocatory already, by " 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 " replace) , h saves tall courtyard administer the forehead of litigant mark the first instance of 100 million yuan of above case of issue of civil, civilian trade.
The frontal come of mark of the lawsuit when 6 wells sue company of this estate of case A coal more than yuan 150 million, and referred some to save coalfield ground to pledge 2 0 4 prospecting teams are issued " 6 wells of one well of B coal company, company of A coal estate coal-bed survey report " wait to prosecute witness basically, the court refers the premise that prosecutes material and witness to fall lawfully in its, according to is legal the standard accepts this proposal and all without exception is become.
The request of more than yuan of 150 million lawsuit that holds as to its should be denied get the support, number that should support specific how much be, all need to try to maintain through hypostatic cognizance, do not belong to jurisdictional demur to examine a category. B coal is industrial although one well of company disagrees to the forehead of the litigant mark of accuser, but fail to refer evidence to confirm its advocate, and coal of B of its officer unit is industrial the company is more than yuan 160 million in the forehead of mark of the countercharge in this case, the forehead of mark of lawsuit of accuser of evidence of Yi Ke con is not be without a basis, the jurisdictional demur of one well of industrial company cannot establish reason B coal.
Juridical result
Reject B coal one well of industrial company is jurisdictional to this case the objection that raise.
Juridical train of thought
By the jurisdictional objection that party raises general component is jurisdictional to district the objection that raise and the demur that leave administer authority alone to put forward to class, one well of industrial company is opposite coal of the B in this case the forehead of the litigant mark of this case demur, the department fastens jurisdictional demur in the light of class. And after fastening jurisdictional demur for class certainly, ought to see case type whether accord with the grade that gets courtyard of civil code telling a person to set administer. Relevant legal basis is divided " code of civil law of People's Republic of China " outside reaching the 20th the 17th times, class of case of issue of civil, trade leaves the first instance that basically decides according to the supreme court alone the regulation of administer. The restriction of the specified amount that does not accept litigant bid except the specific type issue that sets clearly is same by basic level court administer outside, most case needs to decide according to the forehead of mark class leaves administer alone.
This case brief of a case ties property damages issue, whether does the forehead of the litigant bid that requires union to sue evidence to examine party to advocate have rationality. In judicatory practice, often appear intended avoid level provides the specified number of party fiction prize the circumstance of administer. Accordingly, although need not ask in phase of put on record party has sufficient evidence,prove the amount that its lawsuit requests, but the basic proof level that the specified number that still wants the sign that to its lawsuit requests to advocate reachs place of put on record to need, want those who seek the testimony that passes pair of party to offer to examine only namely, the litigant request amount that can decide party puts forward has possibility, and rather than puts forward without base area random.
Whether can the request hold water as to lawsuit, not be phase of put on record examine limits, not must examine further, have otherwise surmount limits of one's functions and powers of phase of put on record, did not stand first the ill will of careful. Accordingly, the evidence that the proves mark of put on record specified number that provides to party establishs asks the level is not high also, but the book card that ought to be materiality usually or material evidence, single party states the basis in the specified amount that cannot determine litigant award as put on record usually.
Before May 1, 2015, intermediate accept first instance with High Court the forehead of the litigant mark of case of civilian trade issue saves a circumstance to make originally by each tall courtyard basis, the newspaper is approved via the supreme court. After May 1, 2015, " 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 " apply, replaced each standard that tall courtyard establishs severally, unified develop degree to differentiate by region economy and set intermediate, tall courtyard to accept first instance standard of case of civilian trade issue.
Those who need an attention is, no matter be before each old standard that tall courtyard establishs, still be the supreme court unites unity new standard, all be in party abode ground accept a court area under administration of located and provincial administration and ground of abode of party one party are absent accept a court distinction of two kinds of circumstances serves area under administration of located and provincial administration, with Heilongjiang province tall courtyard is exemple, the forehead of the mark of before one kind of circumstance is 200 million yuan of above, hind the forehead of the mark of a kind of circumstance is 5 ten million yuan above. The jumping-off place that divisional abode ground makes different provision basically is to prevent occurrence place protectionism, make sure case justice is tried.
Extend the meaning thinks
1.Certain level is in charge of the main factor of administer. In trying practice, the forehead of litigant mark is most common provide the element closely related administer with level, so that most person encounters level to manage administer problem, metropolis the size of the forehead that thinks of litigant mark for a short while. But " code of civil law of People's Republic of China " the basis that reachs its judicatory to explain Dou Weiming to regard certain level canal as administer the forehead of mark directly truly, be like " code of civil law of People's Republic of China " come the 17th times the 20th establish civil suit level is in charge of administer regulation: Namely basic level court administer first instance case of civilian trade issue, quadrangle administer this case of great concerning foreign affairs or foreign nationals, area under administration has major effect case, supreme court to decide by quadrangle administer first instance case of civilian trade issue, tall courtyard administer the first instance that this area under administration has major effect case of civilian trade issue, the supreme court administer the case that there is major effect in the whole nation thinks to answer with its by its administer first instance case of civilian trade issue.
Discover not hard, the regulation that class leaves administer alone is OK and intermediate the court suffers record level to be dividing line, under its standard court of attributive basic level administer, prep above its mark criterion by High Court administer. Be like again to " great concerning foreign affairs or foreign nationals " , already of invalidation " opinion of code of civil law " made an explanation the 1st times: "Code of civil law the 19th (one) case of great concerning foreign affairs or foreign nationals, it is to show the specified number of controversy mark is large, or details of a case is complex, the case of concerning foreign affairs or foreign nationals with the party numerous strength that perhaps lives in abroad " ; Judicatory of code of civil law explains the 1st also has given out to set clearly: "Code of civil law the 18th (one) case of great concerning foreign affairs or foreign nationals, include the case with the case with the large specified number of controversy mark, complex details of a case, or strength of one party party is numerous wait for the case that has major effect. " see pair of judgement whether " great concerning foreign affairs or foreign nationals " it is consistent on standard regulation: One of element of these 3 lawsuit must have the forehead of litigant mark, details of a case and party number prep above is general the consequence of degree, be opposite thereby the juridical activity of interests person, society or people court produces prep above the influence of average rate.
This shows, the forehead of litigant mark just is limitted whether " have major effect " one of case, not be all element that decides class leaves administer alone, whether " have major effect " just be one of prime factors that decide class leaves administer alone.
2.Level provides the exceptional provision of administer. Judicatory of code of civil law explains the 2nd provision: "The intermediate people court that patent dispute case decides by intellectual property court, top people court and court of basic level people administer. Case of trade of maritime, brine by admiralty courtyard administer. " this is to be aimed at case of patent case, trade of maritime, brine to have professional stronger, the characteristic with less amount, set directly by the supreme court by special court or court of specific intermediate, basic level administer, be helpful for making sure the case tries qualitative effect. But of these cases professional the characteristic can not return for " have major effect " category. In addition, according to the regulation of relevant and civil law and judicatory explanation, still a few cases not comply to decide according to the forehead of litigant mark administer forensic layer class, basically include:
(1) the case such as dispute of accident of authority of damages of service of marriage, successive, family, property, person, reputation, traffic, labor, and case of group sex dispute, general by basic level court administer.
(2) because appeal to before conserve the litigation that the mistake causes a loss to cause, according to different situation, by the people court that accepts prosecution people court to perhaps adopt full measure of be bailed out administer.
(3) of cancel of the 3rd person appeal to, by the court that makes copy clerk of become effective judge administer.
(4) of executive demur appeal to, by executive court administer.
(5) applicable and special program, supervise and urge program, fair show press the case that announces a program, general all by corresponding basic level court administer.
Legal laws and regulations is linked
" code of civil law of People's Republic of China " the 17th, the 18th, the 19th, the 20th
" top people court about code of civil law of republic of the people in applicable < > explain " the 2nd
" 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 "
