Examples of retrial | A brief description of the status of the parties in a retrial case in the context of a specific case
Published:
2022-04-24
Basic case Zhang is an individual business operator, and Li is a husband and wife relationship. In September 2017, Zhang borrowed money from Tai one after another. On May 8, 2018, after Zhang and Tai audited the accounts, together with the interest, Tai issued an IOU with an amount of 400000 yuan. The IOU did not stipulate interest, and it was agreed that this amount would be from April 10 to April 2019. One-time return on the 20th, if overdue, the interest will be settled in accordance with relevant laws and regulations. On October 9, 2019, Tai asked Li for money but failed to sue to the court, demanding that the loan principal be returned to 400000 yuan, and from May 8, 2018 to the date when the loan was repaid, the annual interest rate was 6%. Pay interest; litigation costs are borne by Zhang and Li. Zhang replied that there was beheading interest in 400000 yuan's IOU, and the actual loan principal was 370000 yuan. There is no objection to the authenticity of the 400000 yuan transfer record provided by Tai, because there are frequent business transactions between the two sides, of which 30000 yuan's transaction record is the payment for goods from individual industrial and commercial households paid by Tai. Li argued that although he was a husband and wife relationship with Zhang, the two were emotionally discordant. He did not rule out a false lawsuit between Zhang and Tai, and had objections to the authenticity of the IOU. He did not know or sign the loan, and the loan was not used. Family life and business, so it is not a joint debt of husband and wife. The court of first instance held that Zhang borrowed money from Tai, and the facts were clear and the evidence was indeed sufficient. According to the Supreme People's Court on the application<中华人民共和国婚姻法>Article 24 of the (II) for Interpretation of Certain Issues states that creditors who claim rights over the debts incurred by one of the spouses in their own name during the marriage relationship shall be treated as the joint debts of the husband and wife. Li mou argued that he did not know about the loan, the receipt was not signed by Zhang mou, did not submit relevant evidence, did not provide evidence to prove that the debt belonged to Zhang mou's personal debt, and his defense was not accepted. The judgment supports Tai's claim. Both Zhang and Li refused to accept the judgment and appealed to the court of second instance, saying that Zhang had frequent business contacts between the two sides, of which the transaction record of 30000 yuan was the payment for goods from individual industrial and commercial households paid by Tai, and the second instance submitted the details of sales records of individual industrial and commercial households. First of all, Li Mou appealed that Zhang's signature in the IOU provided by Tai Mou was not his own, and now Li Mou requires handwriting identification. Secondly, Li Mou thinks that Tai Mou stated in the original trial that the 400000 yuan loan was formed by three loans. The first loan was formed in September 2017. Now Li Mou finds out the receipt issued by Tai Mou to Zhang on December 31, 2018 at home, it is proved that the loan has been paid off in September 2017, so Tai's statement in court is not true and the IOU is false. Thirdly, according to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of cases involving marital debt disputes, Li did not know or sign the loan, and there was no evidence to prove that it was used for family life and business, so it was not a joint debt of husband and wife. Tai argued that the 400000 yuan IOU issued by Zhang to Tai was issued by Zhang after the final settlement of multiple loans in Tai. According to Articles 24 and 26 of the Judicial Interpretation of the the People's Republic of China Marriage Law, Li should bear Repayment responsibility. In the second instance, upon Li's application, whether Zhang's signature in the 400000 yuan IOU on May 8, 2018 was written by himself was verified by handwriting. The appraisal opinion was: Zhang's signature was written by the borrower in the IOU, and the handwriting was written by Zhang himself. The court of second instance ruled that the appeal was rejected and the original judgment was upheld. Zhang and Li both refused to accept the second instance judgment and applied for a retrial. In the light of this case, how does the civil retrial application list the status of the parties? In practice, after the court accepts the application for retrial, how does it list the status of the parties? First, Zhang and Li, as defendants in the first instance and appellants in the second instance, can apply for a retrial if they refuse to accept the judgment of the second instance. Zhang and Li can jointly write a retrial application. Both parties are retrial applicants. Tai is the respondent. Zhang and Li specify the specific facts and reasons in the application. If Zhang and Li apply for retrial respectively, the court will also combine the review. Second, in practice, if both parties are not satisfied with the effective judgment and apply for retrial, within the statutory time limit, the court accepts and examines the retrial application of one party, and if the other party also applies for retrial, the court will review it together, listing both parties as the retrial applicant, and the review period shall be recalculated. If both parties apply for a retrial, one or both parties are established and the retrial is ruled. If neither party is established, the retrial shall be rejected. Third, how to list the status of the parties in the application for retrial. If (I) parties or outsiders apply for retrial, they shall be listed as "retrial applicants"; if all parties apply for retrial, they shall be listed as "retrial applicants"; the respondent specified in the retrial application shall be listed as "respondent"; other parties in the original trial who have not filed an application for retrial or have not been listed as the respondent shall be listed according to their status in the first instance, the second instance and the appellant in the second instance "; in the case of a retrial application for a ruling of inadmissibility, only the applicant for retrial shall be listed. (II) the brackets after "retrial applicant" and "respondent" specify the litigation status of the parties in the first, second and retrial according to "plaintiff of first instance, counterclaim defendant (or defendant of first instance, counterclaim plaintiff), appellant of second instance (or appellee of second instance), original retrial applicant (or original respondent)"; If a civil application for retrial has been retried more than twice, the retrial litigation status in brackets is listed according to the litigation status of the parties in the last retrial. The retrial procedure is initiated by the people's procuratorate's protest or the people's court ex officio, and the retrial litigation status in brackets is listed according to "original complainant (or original respondent)"; If an outsider applies for a retrial, the "outsider" shall be listed in brackets ". If the name of the (III) party changes, the original name shall be indicated in brackets after the name. If the (IV) party is a natural person, the name, gender, nationality, date of birth, occupation, and address shall be listed; if the natural person's occupation is not clear, it may not be stated; if the party is a legal person or other organization, the name, residence, and legal representative or The name and position of the main person in charge. (V) the party is a natural person, the address is written as "residence: specific address". If the address stated in the application for retrial is inconsistent with the address stated in the effective referee or ID card, the address is written as "residence: address stated in the ID card, current residence: address stated in the application for retrial". If the party concerned is a legal person or other organization, the domicile shall be written as "domicile: the domicile stated in the business license". If the party's address or residence is located in the municipal district, it shall be written as "×× province (municipality directly under the Central Government, autonomous region) ×× city ×× district (specific address)"; if the party's address or residence is in a county under the jurisdiction of the city or a county-level city under the jurisdiction of the city, it shall be written as "×× province (municipality directly under the Central Government, autonomous region) ×× county (city) (specific address)", not prefecture-level city (city); if two or more parties have the same address, they should be stated separately and cannot be replaced by "the same address as above. The legal representative or principal person in charge of a (VI) legal person or other organization is written as "legal representative (or person in charge):×××, chairman (or factory director, director, etc.) of the company (or factory, village committee, etc.)". To sum up, there are strict requirements for the status of the parties applying for retrial. I hope you will pay more attention when writing the application for retrial, so as not to cause unnecessary trouble. </中华人民共和国婚姻法>
Basic case
Zhang is an individual business operator, and Li is a husband and wife relationship. In September 2017, Zhang borrowed money one after another in Tai. On May 8, 2018, after Zhang and Tai audited the accounts, together with the interest, Tai issued an IOU with an amount of 400000 yuan. The IOU did not stipulate interest, and it was agreed that this amount would be from April 10 to April 2019. One-time return on the 20th, if overdue, the interest will be settled in accordance with relevant laws and regulations. On October 9, 2019, Tai asked Li for money but failed to sue to the court, demanding that the loan principal be returned to 400000 yuan, and from May 8, 2018 to the date when the loan was repaid, the annual interest rate was 6%. Pay interest; litigation costs are borne by Zhang and Li.
Zhang replied that there was beheading interest in 400000 yuan's IOU, and the actual loan principal was 370000 yuan. There is no objection to the authenticity of the 400000 yuan transfer record provided by Tai, because there are frequent business transactions between the two sides, of which 30000 yuan's transaction record is the payment for goods from individual industrial and commercial households paid by Tai.
Li argued that although he was a husband and wife relationship with Zhang, the two were emotionally discordant. He did not rule out a false lawsuit between Zhang and Tai, and had objections to the authenticity of the IOU. He did not know or sign the loan, and the loan was not used. Family life and business, so it is not a joint debt of husband and wife.
The court of first instance held that Zhang borrowed money from Tai, and the facts were clear and the evidence was indeed sufficient. According to the Supreme People's Court on the application<中华人民共和国婚姻法>Article 24 of the (II) for Interpretation of Certain Issues states that creditors who claim rights over the debts incurred by one of the spouses in their own name during the marriage relationship shall be treated as the joint debts of the husband and wife. Li mou argued that he did not know about the loan, the receipt was not signed by Zhang mou, did not submit relevant evidence, did not provide evidence to prove that the debt belonged to Zhang mou's personal debt, and his defense was not accepted. The judgment supports Tai's claim.
Both Zhang and Li refused to accept the judgment and appealed to the court of second instance, saying that Zhang had frequent business contacts between the two sides, of which the transaction record of 30000 yuan was the payment for goods from individual industrial and commercial households paid by Tai, and the second instance submitted the details of sales records of individual industrial and commercial households. First of all, Li Mou appealed that Zhang's signature in the IOU provided by Tai Mou was not his own, and now Li Mou requires handwriting identification. Secondly, Li Mou thinks that Tai Mou stated in the original trial that the 400000 yuan loan was formed by three loans. The first loan was formed in September 2017. Now Li Mou finds out the receipt issued by Tai Mou to Zhang on December 31, 2018 at home, it is proved that the loan has been paid off in September 2017, so Tai's statement in court is not true and the IOU is false. Thirdly, according to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of cases involving marital debt disputes, Li did not know or sign the loan, and there was no evidence to prove that it was used for family life and business, so it was not a joint debt of husband and wife.
Tai argued that the 400000 yuan IOU issued by Zhang to Tai was issued by Zhang after the final settlement of multiple loans in Tai. According to Articles 24 and 26 of the Judicial Interpretation of the the People's Republic of China Marriage Law, Li should bear Repayment responsibility.
In the second instance, upon Li's application, whether Zhang's signature in the 400000 yuan IOU on May 8, 2018 was written by himself was verified by handwriting. The appraisal opinion was: Zhang's signature was written by the borrower in the IOU, and the handwriting was written by Zhang himself.
The court of second instance ruled that the appeal was rejected and the original judgment was upheld.
Zhang and Li both refused to accept the second instance judgment and applied for a retrial. In the light of this case, how does the civil retrial application list the status of the parties? In practice, after the court accepts the application for retrial, how does it list the status of the parties?
First,Zhang and Li, as defendants in the first instance and appellants in the second instance, can apply for a retrial if they are not satisfied with the judgment of the second instance. Zhang and Li can jointly write a retrial application. Both parties are retrial applicants. Tai is the respondent. Zhang and Li specify the specific facts and reasons in the application. If Zhang and Li apply for retrial respectively, the court will also combine the review.
Second,In practice, if both parties are not satisfied with the effective judgment and apply for retrial, within the statutory time limit, the court accepts and reviews one party's retrial application. If the other party also applies for retrial, the court will review it together, and both parties are listed as retrial applicants., The review period should be recalculated. If both parties apply for a retrial, one or both parties are established and the retrial is ruled. If neither party is established, the retrial shall be rejected.
Third,How to list the status of the parties in the application for retrial
If (I) parties or outsiders apply for retrial, they shall be listed as "retrial applicants"; if all parties apply for retrial, they shall be listed as "retrial applicants"; the respondent specified in the retrial application shall be listed as "respondent"; other parties in the original trial who have not filed an application for retrial or have not been listed as the respondent shall be listed according to their status in the first instance, the second instance and the appellant in the second instance "; in the case of a retrial application for a ruling of inadmissibility, only the applicant for retrial shall be listed.
(II) the brackets after "retrial applicant" and "respondent" specify the litigation status of the parties in the first, second and retrial according to "plaintiff of first instance, counterclaim defendant (or defendant of first instance, counterclaim plaintiff), appellant of second instance (or appellee of second instance), original retrial applicant (or original respondent)"; If a civil application for retrial has been retried more than twice, the retrial litigation status in brackets is listed according to the litigation status of the parties in the last retrial. The retrial procedure is initiated by the people's procuratorate's protest or the people's court ex officio, and the retrial litigation status in brackets is listed according to "original complainant (or original respondent)"; If an outsider applies for a retrial, the "outsider" shall be listed in brackets ".
If the name of the (III) party changes, the original name shall be indicated in brackets after the name.
If the (IV) party is a natural person, the name, gender, nationality, date of birth, occupation, and address shall be listed; if the natural person's occupation is not clear, it may not be stated; if the party is a legal person or other organization, the name, residence, and legal representative or The name and position of the main person in charge.
(V) the party is a natural person, the address is written as "residence: specific address". If the address stated in the application for retrial is inconsistent with the address stated in the effective referee or ID card, the address is written as "residence: address stated in the ID card, current residence: address stated in the application for retrial". If the party concerned is a legal person or other organization, the domicile shall be written as "domicile: the domicile stated in the business license".
If the party's address or residence is located in the municipal district, it shall be written as "×× province (municipality directly under the Central Government, autonomous region) ×× city ×× district (specific address)"; if the party's address or residence is in a county under the jurisdiction of the city or a county-level city under the jurisdiction of the city, it shall be written as "×× province (municipality directly under the Central Government, autonomous region) ×× county (city) (specific address)", not prefecture-level city (city); if two or more parties have the same address, they should be stated separately and cannot be replaced by "the same address as above.
The legal representative or principal person in charge of a (VI) legal person or other organization is written as "legal representative (or person in charge):×××, chairman (or factory director, director, etc.) of the company (or factory, village committee, etc.)".
To sum up, there are strict requirements for the status of the parties applying for retrial. I hope you will pay more attention when writing the application for retrial, so as not to cause unnecessary trouble.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
