Viewpoint | Determination of evidence of domestic violence in divorce proceedings

Basic case In September 2012, Hu and Chen confirmed their love relationship. The two registered their marriage on May 20, 2013 and had a daughter after marriage. After being dismissed by the unit in 2015, Chen became more and more irritable. He often fought against Hu because of family chores, and he would be driven out of the house every time he finished playing Hu. During the Spring Festival in 2017, after being drunk, Chen threw a knife at Hu because he was dissatisfied with Hu's failure to clean up the housework in time. Chen's behavior made Hu completely disheartened, and he took his daughter back that night. At his parents' home, Hu sued the court for divorce. After receiving the summons from the court, Chen immediately rushed to Hu's parents' house to squat. As soon as he saw Hu, he smashed his head with a blunt object. Hu called the police and made an injury appraisal. The court of first instance determined that Chen's behavior constituted domestic violence based on the evidence in the case, and the relationship between the two parties had indeed broken down, and the judgment allowed both parties to divorce. Chen refused to appeal, the court of second instance rejected the appeal and upheld the original verdict. Legal provisions Article 1079, paragraphs 2 and 3, of the the People's Republic of China Civil Code on Marriage and Family stipulates: "Divorce shall be granted if the relationship has indeed broken down and mediation is invalid. Divorce shall be granted if mediation is invalid under any of the following circumstances: (2) Domestic violence or maltreatment or abandonment of family members;" Lawyer Analysis Numerous cases show that there is only a difference between zero and numerous domestic violence. After being abused for the first time, the parties often do not realize the seriousness of the problem, and may even be moved by the perpetrator's subsequent repentance and compensation behavior, and then connive at their next violence. It can be seen that tolerance is a double-edged sword, and the compromise of the parties to domestic violence may bring irreparable harm to themselves. Therefore, the lawyer advises the client to collect and retain evidence in time to prove the existence of domestic violence after suffering domestic violence, because the implementation of domestic violence is one of the legal reasons for divorce. In the case of invalid mediation, even if it is the first time to sue for divorce, the court should also grant divorce. However, if the evidence of the parties is insufficient to determine the fact of domestic violence, in the trial practice, for the first time to sue for divorce, and there is no sufficient evidence to prove that the relationship between the two parties has indeed broken down, the people's court will often stand in the maintenance of marriage and family From the perspective of stability, the general judgment does not divorce. The ways for the parties to collect evidence can be divided into the following: 1. After suffering from domestic violence, they should directly report to the public security organ or seek help from the neighborhood (village) committee, government agencies, women's federations, work units, etc. In the future litigation, the parties may request the relevant departments to issue relevant certification materials, especially to apply for the police record, warning letter and introduction letter of injury examination of the public security organ. 2, keep the diagnosis certificate, case book, medical expenses bills, etc. The parties injured in domestic violence should go to the hospital in time. In addition, they should take photos at that time and keep the photos. The parties may also go to the appraisal center or entrust the Women's Federation to handle the injury appraisal work. 3. Keep the original audio-visual materials and repentance written after domestic violence. If conditions permit, the party concerned can make audio or video recording when suffering from domestic violence. If there is an eyewitness, he can apply for the witness to testify in court. At the same time, he should pay attention to keeping the letter of repentance written by the perpetrator after domestic violence. The evidence collected in the first way, especially the police records, warning letters and injury appraisal opinions of the public security organs, is the most powerful to identify the existence of domestic violence. If the party only submits medical records or photos of injuries, if there is no other evidence to strengthen them, it is difficult to determine that the injury is caused by spousal violence if the other party denies it.

2022-04-01

Zhongcheng Qingtai Lawyer Actively Helps to Prevent and Control the Epidemic Situation in Zhujin City

On March 31, 2022, Du Wentang, Director of the Administrative Committee of Zhongcheng Qingtai Jinan Institute, Zhou Jiakui, Member of the Administrative Committee and Director of the Public Welfare Executive Committee, and Cheng Law-abiding, Member of the Administrative Committee, went to the street office of Zinjin City to carry out public welfare activities. They donated protective clothing, medical gloves, disinfectant, medical masks and other epidemic prevention materials to Zinjin City to help the epidemic prevention and control work with practical actions and demonstrate Zinjin the public welfare. Zhongcheng Qingtai and his party were warmly received by Hu Jinbo, Secretary of the Party Working Committee of Zhijin street, and Zhao Zhiyan, director of the office. The two sides exchanged views on the recent epidemic prevention and control work in the city of Jinjin, such as personnel management, killing and protection, nucleic acid testing, volunteer services, and risk investigation. Du Wentang introduced the Zhongcheng Qingtai Guangren Fund and the major initiatives of Zhongcheng Qingtai lawyers in recent years to help prevent and control the epidemic. Lawyers of Zhongcheng Qingtai will adhere to the service concept of "paying attention to people's livelihood and serving the society", actively participate in epidemic prevention and public welfare activities, gather strength, respond quickly, implement the epidemic prevention and control work in detail, and support the epidemic prevention and control battle with practical actions.

2022-03-31

Chen Guanpeng, Chairman of the CPPCC and Secretary of the Party Leadership Group of Lixia District, Jinan City, visited Zhongcheng Qingtai for investigation

On March 29, Chen Guanpeng, Chairman of the CPPCC and Secretary of the Party Leadership Group of Lixia District, Jinan City, Hong Lu, Deputy District Mayor of the District Government, Liu Jun, Vice Chairman of the District CPPCC, Dai Yuanhong, Director of the District CPPCC Office, and Ding Peng, Deputy Minister of the Investment Promotion Service Department of the District Investment Promotion Bureau Visited Zhongcheng Qingtai Jinan Institute for research. Geng Guoyu, Secretary of the Party Committee and Director of Zhongcheng Qingtai Jinan Institute, Du Wentang, Director of the Administrative Committee, Zhao Kaiyong, Yu Cuilan and Tian Wenhua, members of the Administrative Committee, warmly received the visiting leaders. Director Geng Guoyu accompanied Chairman Chen Guanpeng and his party to visit the office environment of the law firm and introduced the basic situation of Zhongcheng Qingtai's development history, performance honor, party building work, etc., which was highly recognized by Chairman Chen Guanpeng. At the symposium, the two sides focused on the development plan of the law firm, conducted in-depth discussions on how to play the role of the CPPCC, open up the "last mile", and put forward preliminary ideas for building a legal service cluster. In the next step, Zhongcheng Qingtai lawyers will actively participate in the construction of the rule of law in Lixia District, help build a highland of foreign-related legal services in the Yellow River Basin, and contribute to the construction of a new era of legal business environment.

2022-03-29

Overseas Chinese Heart Walk with the Party and Rule of Law | Jinan Overseas Chinese Federation "Eighth Five-Year Plan" Law Popularization Launch and Legal Work Committee Work Conference Successfully Held in Zhongcheng Qingtai Law Firm

In order to thoroughly implement the spirit of the Sixth Plenary Session of the 19th Central Committee of the Communist Party of China, earnestly study and implement Xi Jinping's rule of law, and implement the "Eighth Five-Year" law popularization requirements of the China Federation of Returned Overseas Chinese, on March 28, the Jinan Overseas Chinese Federation Law Working Committee and Zhongcheng Qingtai Law Firm hosted the "Overseas Chinese Heart to the Party and Rule of Law-Jinan Overseas Chinese Federation's" Eighth Five "Law Popularization and Legal Work Committee Work Conference. The meeting was held in a combination of online and offline. Dong Yiming, vice chairman of Jinan Federation of overseas Chinese and director of Zhongcheng Qingtai Beijing Institute, Geng Guoyu, president of Jinan Lawyers Association, director of Zhongcheng Qingtai Jinan Institute, and Zhou Jiakui, vice chairman of the legal work Committee of Jinan Federation of overseas Chinese and deputy director of Zhongcheng Qingtai Jinan Institute, attended the meeting on the spot. The meeting conveyed and learned Xi Jinping's thoughts on the rule of law, listened to the work report of the Municipal Federation of Overseas Chinese Legal Work Committee, announced the ten practical facts of the Municipal Federation of Overseas Chinese, and held the "Eighth Five-Year" law popularization ceremony of the Municipal Federation of Overseas Chinese and the "One Belt One Road Rule of Law Escort Mechanism" signing ceremony. Subsequently, the participants held discussions and exchanges on the protection of the rights and interests of returned overseas Chinese and their family members, fully listened to the difficulties of overseas Chinese businessmen and their family members living and working in Shandong and provided solutions, so as to provide legal support for overseas Chinese businessmen and their family members to participate in the economic and social development of Jinan. At the same time, it has improved the rule of law thinking and ability of the cadres of the Federation of Overseas Chinese to handle affairs in accordance with the law, which will help to further form a good atmosphere of respecting the law, learning and abiding by the law in the overseas Chinese community. Finally, Chairman Mi Wenpeng, Secretary of the Party Group of the Jinan Federation of Overseas Chinese, and Director Sun Delong of the Jinan Municipal Bureau of Justice made speeches, fully affirming the systematic study of the general secretary's rule of law and the launch of the "Eighth Five-Year" law popularization of the Chinese Federation of Overseas Chinese. Chairman Mi pointed out that the Belt and Road rule of law services and assistance to the development of overseas Chinese enterprises will become a long-term task of the Municipal Federation of Overseas Chinese in the future. Director Sun pointed out that in the future, the publicity of law popularization should first be combined with the general secretary's idea of the rule of law, secondly, it should be combined with specific cases, and thirdly, it should establish a long-term legal service mechanism. The Municipal Bureau of Justice will work with the Municipal Federation of Overseas Chinese to contribute to the Belt and Road Initiative's foreign-related legal services. Lu Wenpeng, member and vice chairman of the Party group of Shandong Federation of overseas Chinese, Mi Wenpeng, Secretary and chairman of the Party group of Jinan Federation of overseas Chinese, sun Delong, Secretary of the Party committee of Jinan Judicial Bureau, Huang Fu Qingsen, member and deputy director of Jinan Prison Political Commissar, Fang Jing, first-level researcher of Jinan Municipal People's Congress, Liu Germany, deputy director of the overseas Chinese studio of Jinan Municipal People's Congress Standing Committee, Li Shuangxi, zhu Zhengda, Party Secretary and Chairman of the Federation of Overseas Chinese in Shizhong District, Mao Qinghe, Party Secretary and Chairman of the Federation of Overseas Chinese in Tianqiao District, Sun Yanling, Chairman of the Federation of Overseas Chinese in Huaiyin District, and other leaders of the Federation of Overseas Chinese in Shandong Province, members of the Municipal People's Congress Overseas Chinese Foreign Affairs Committee and the Municipal Judicial Bureau Responsible comrades, members of the Legal Work Committee of the Federation of Overseas Chinese, representatives of Overseas Chinese businessmen and Returned Overseas Chinese, representatives, representatives of Returned Overseas.

2022-03-28

Real estate perspective: where is the small property right house? -- Analysis of the legal issues related to the small property right house

Since 2003, the concept of "small property room" has begun to enter people's lives. In theory, this is not a professional legal concept, but more like a special title in people's daily habits. As for the definition of "small property right house", there are many opinions in academic circles. The author combines relevant laws and regulations and his own work experience to define "small property right house" as follows: "it refers to the housing built on rural collective land, without paying the land transfer fee, without obtaining the housing ownership certificate issued by the national housing management department and used for sale". As the name implies, its relative concept is "large property right house", while large property right house refers to a house with a house ownership certificate issued by the national real estate administrative department, that is, a house with a real estate certificate. "Small" in 1. Legitimacy -- Small Property Right House and Illegal Construction Generally speaking, the "illegal construction" in the law refers to the construction of houses and facilities that are built outside the planning area without obtaining a construction project planning permit and in violation of the Land Management Law, the Urban and Rural Planning Law and other relevant laws and regulations. Therefore, from the perspective of the legality of housing construction behavior, small property houses can be divided into two categories: small property houses with illegal building procedures and small property houses with legal building procedures. For the convenience of distinction, the author calls the former "illegally built small property house", while the latter calls it "legally built small property house". (I) Illegal Construction of Small Property Houses-Characteristics 1. Such houses have not obtained the approval procedures for building land and construction planning, and the houses themselves are illegal construction; 2, such houses can not be legally registered original ownership of the house; 3. Such houses cannot be registered for the transfer of ownership of the house and obtain a certificate of ownership of the house; (in practice, a "certificate of ownership" is usually issued by the township or village committee to prove the so-called ownership of the house by the buyer); 4, the vast majority of village collective joint developers for external sales and construction. Small Property Houses Legally Built in (II)-Features 1. This kind of house itself is legally constructed, but because it is built on collective land without going through the land acquisition and transfer procedures, the house cannot be legally registered; 2. Such houses have de facto ownership, and the original takers of the houses are restricted to members of the collective economic organization; 3, this type of housing usually has a township or village committee issued a "certificate of property rights", in order to prove the ownership of property rights; 4. Some of these houses are built for external sales, and some are built for the villagers' own use, and then the villagers sell them to the outside world. (Note: The houses legally built by villagers on their homesteads do not belong to the category of small property houses referred to in this article, but if the villagers or village collectives sell their own legally built homesteads, they belong to the legal small property houses referred to in this article). To sum up, as far as small property rights houses are concerned, illegally built small property rights houses are illegal in land use, house construction, trading and other links; while legally built small property rights houses have passed the approval procedures such as rural construction planning permission and construction engineering construction permission, and the construction behavior is legal. Therefore, we can not generally think that the houses with small property rights are all illegal buildings and should be demolished, while the houses with small property rights are at greater risk of being forcibly demolished. "Small" in the Effectiveness of 2. Sale Contracts -- Analysis of the Effectiveness of Small Property Right House Sale Contracts Small property house legally built in (I) 1. The opposite party-urban residents: Article 10 of China's Constitution clearly stipulates that urban land belongs to the state. Land in rural and suburban areas, except for those owned by the state as stipulated by law, belongs to the collective; homesteads, private plots and private hills also belong to the collective. No organization or individual may appropriate, buy, sell or otherwise illegally transfer land. Article 2 of the Notice of the General Office of the State Council on Strengthening the Management of Land Transfer and Prohibiting Land Speculation (No. 39 [1999] of the State Council) stipulates: to strengthen the management of the transfer of farmers' collective land, it is strictly forbidden to illegally occupy farmers' collective land for real estate development; farmers' collective land use rights shall not be sold, transferred or leased for non-agricultural construction; farmers' houses shall not be sold to urban residents, nor shall urban residents be approved to occupy farmers' collective land to build houses, the relevant departments shall not issue land use certificates and real estate certificates for houses built and purchased in violation of the law. In addition, according to the "Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land", rural residential land can only be allocated to villagers in the village, and urban residents are not allowed to purchase homesteads, farmers' houses or houses with small property rights in the countryside. It can be seen that the law of our country clearly stipulates that rural houses can be allocated to the villagers of the village and the sale to urban residents is prohibited. Therefore, the contract of sale and purchase of small property houses by urban residents is generally recognized as an invalid contract. Related cases: Case 1:(2015) Hong Min San Zhong Zi No. 91 The judge's view in the civil judgment of the Intermediate People's Court of Nanchang City, Jiangxi Province: "Rural land, except for what is owned by the state by law, belongs to the collective ownership of farmers. The land attached to the demolition and resettlement houses in this case belongs to rural collective land. According to the" Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land "," Rural residential land can only be allocated to villagers in the village, and urban residents are not allowed to purchase homesteads, farmers' houses or small property houses in the countryside ". Homesteads, farmers' houses or small property houses can only be transferred among members of the same rural collective economic organization, the act of urban residents buying farmers' houses in rural areas is not protected by law, and the sale is generally invalid. (Court of Second Instance) The" Housing Subscription Agreement "signed by Wang and Huang violated the" Notice of the General Office of the State Council on Strict Implementation of Laws and Policies on Rural Collective Construction Land "that" rural residential land can only be allocated to villagers in the village., Urban residents do not get rural purchases of homesteads, farmers' houses or small property houses "and are invalid." Case 2:(2021) Yu 0329 Minchu No. 3446, Yichuan County People's Court, Henan Province, the judge's point of view in the civil judgment: "In this case, the land used in Yichuan County is the land collectively owned by the villagers of Zhongxi Village Committee, ...... The project has also passed the Yichuan County Rural Construction Planning Permit and Construction Permit, and the house involved is a small property house built legally. However, because the house involved in the case was a house with small property rights rather than a real commercial house, that is, a house with large property rights, and did not obtain a presale permit, the plaintiff Ding Yanli, as an urban resident and not a member of the collective economic organization of Zhongxi Village, did not have the qualification to purchase the houses built on the land collectively owned by the rural village, therefore, the" Yichuan Zhongxi Community Resettlement Housing Contract "signed by Ding Yanli and Hengtian Company is invalid because it violates the mandatory provisions of laws and administrative regulations." Of course, according to the actual situation, there are exceptions in judicial practice. If urban residents obtain the collective organization's household registration after signing the small property right house sales contract and are approved by the relevant departments, the house sales contract is generally recognized as valid. 2. The opposite party-members of other collective organizations: From the current judicial practice, the housing sales contract signed with the villagers outside the village tends to be invalid, and there are still judicial disputes. Related cases: Case 1:(2013) The judge's point of view in the civil judgment of the Intermediate People's Court of Ganzhou City, Jiangxi Province, No. 264: "The right to use rural collective land and homestead is a right enjoyed by members of rural collective economic organizations. It is related to the specific identity of the owner, and non-members of the collective economic organization have no right to obtain or obtain it in disguised form. The subject matter of the" House Sale Agreement "signed between the original and the defendant is not only the house, but also the right to use the corresponding collective land homestead. The" Housing Sale Agreement "signed by the original and the defendant violates the mandatory provisions of relevant laws and regulations of our country and should be deemed as an invalid agreement. The main body of the right to use the homestead is the rural residents of the specific rural collective economic organization. Although the appellant yin mou's household registration is a rural household registration, he is a villager of XX group, XX village, XX township, chongyi county, and is not a member of the collective economic organization of XX new village, XX town, chongyi county. he does not have the qualification to use the homestead of XX new village, and the house sale agreement signed by both parties is a kind of house sale on collective land, and the house sale has not obtained the consent of XX new village, XX town, therefore, the house sale agreement signed between the appellant Yin and the appellee Zhong is invalid." Case 2:(2018) The judge's view in the civil judgment of the Intermediate People's Court of Xuzhou City, Jiangsu Province, No. 233 of Su 03 Minchu: "The land under this house is the collective land of Peng Er Group, Sanzha Village, Qing 'an Town, Suining County. The resident ID card submitted by Han Xiufeng stated that his address was No. 102, Xinzhou Lane, Suicheng Town, Suining County, Jiangsu Province, and now No. 160, Sun Zhao Zhao Village. If you are not a member of the collective organization, you cannot be transferred to the house involved, nor can you go through the real estate registration procedures of the house involved." From the current judicial practice, for the house sales contract signed with the villagers outside the village, it is more inclined to determine that the contract is invalid. But the basic spirit of the civil code contract is autonomy, honesty and credit. If it is confirmed that such a contract is invalid, the seller is likely to claim that the contract is invalid on the basis of land appreciation, demolition compensation and other reasons, so that buyers who abide by the principle of good faith suffer losses, thus damaging the social foundation of public order and good customs and good faith. Therefore, the author thinks that the principle of party autonomy should be respected, depending on the specific circumstances of the case to determine whether the contract is valid. Note: China's laws and regulations do not expressly prohibit the signing of housing sales contracts with members of the collective economic organization, and because of the legal property rights certificate, such houses can be transferred among the members of the collective economic organization, at the same time, through the circulation within the collective economic organization can also make full use of idle homesteads. Therefore, the contract for the sale of small property houses between the members of the collective economic organization is generally recognized as legal and valid. (II) for illegally built small property houses For the illegal construction of small property rights generally directly determine the contract is invalid, as the subject matter of the contract of sale of housing, that is, illegal construction of small property rights housing itself is illegal construction, can not occur the legal effect of the establishment of property rights, can not be transferred at all, as the subject matter of the contract can not be realized, can not have legal effect. Moreover, the vast majority of such illegal small property rights housing sales are carried out on the premise of harming urban planning and environmental protection, public welfare undertakings and township collective public interests. If the contract is determined to be valid, it is equivalent to encouraging illegal construction in disguise. Therefore, it is the basic principle to determine that the contract is invalid. 3. small property rights do have a big risk-small property rights housing purchase risk. Conclusion At present, there are a large number of small property houses in many parts of our country, especially in the township area. The high demolition cost and huge waste of resources make the country unable to solve the small property market thoroughly and effectively in the short term. Although the price of small property right houses is relatively cheap, there is no need to pay taxes and fees in the transaction process, there is no restriction on purchase and there is no need to worry about the expiration of property rights, but from the perspective of buyers and investors, especially for urban residents, if they do not know the specific housing situation information, it is risky to buy a small property right house only for a short time, so you must keep your eyes open and be cautious before buying a house.

2022-03-25

Viewpoint... On the legal issues of the wrong notification of the implementation of the objection ruling.

1. Introduction In judicial practice, there are situations in which outsiders raise enforcement objections and the enforcement court makes enforcement objections but mistakenly informs the remedies. In this regard, combined with legal provisions and relevant judgment cases, the enforcement objections examine whether the substantive rights and interests claimed by the outsiders are sufficient to exclude the people's court from enforcement. The enforcement objections examine whether the court's enforcement actions conform to the law and whether they infringe the legitimate rights and interests of the objectors. If the enforcement objection ruling wrongly informs the enforcement objection relief channel, in principle, the enforcement objection ruling shall be revoked and remanded for retrial. Review of 2. Action of Objection to Execution and Action of Objection to Execution Objection to (I) the act of execution 1. The subject of the objection to the execution act. The subject of the objection to the execution act may be an outsider or a party to the case. 2. Time limit for raising objections to the execution act If the parties or interested parties believe that the execution violates the provisions of the law, they may submit a written objection to the people's court responsible for the execution. If a party or interested party raises a written objection, the people's court shall examine it within 15 days from the date of receipt of the written objection. The objection to the execution act shall be raised before the conclusion of the execution procedure, and the execution objection ruling may be made in the course of execution and the execution of the preservation and advance execution of the ruling. 3. Circumstances in which an objection to an act of execution is raised The law provides for the circumstances in which an outsider can object to the enforcement act. Specifically, an outsider can object to the enforcement act in the following five circumstances: 1. Those who believe that the enforcement act of the people's court is illegal and prevent them from waiting for seizure, seizure, or freezing to be paid; 2. Those who believe that the auction measures of the people's court are illegal and prevent them from participating in fair bidding; 3. Those who believe that the auction, sale or debt-for-kind measures of the people's court are illegal and infringe on their right of first refusal to purchase the subject matter of execution; 4. Those who believe that the matters requested by the people's court for assistance in execution exceed the scope of their assistance or violate the provisions of the law; 5. Those who believe that other legitimate rights and interests have been infringed by the people's court's illegal execution. From the above provisions, it can be seen that the examination of the objection to the execution behavior is whether the execution behavior of the court conforms to the legal provisions and whether it infringes the legitimate rights and interests of the objector. The specific provisions can be found in Articles 5 and 6. 7 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts. 4. Remedies for objections to the execution of acts If the parties or interested parties are not satisfied with the ruling on the objection to the execution of the act, they may apply to the people's court at the next higher level for reconsideration within 10 days from the date of service of the ruling. (II) exclusion of execution objections 1. Legal concepts If an outsider raises an objection to the exclusion of enforcement on the basis of the entity's rights, the procedure must be reviewed by the enforcement objection after a formal review of the enforcement objection because it involves a review of the rights and interests of the outsider's entity and the need to weigh whether the protection of the outsider's rights and interests takes precedence over the protection of the rights and interests of the applicant for enforcement. The action of the execution objection examines whether the entity interest of the outsider in the subject matter of the execution is sufficient to exclude enforcement. 2, exclude the implementation of the objection period. The objection to the exclusion of execution shall be raised before the termination of the execution of the subject matter of execution to which the objection is directed; if the subject matter of execution is assigned by the parties, it shall be raised before the termination of the execution proceedings. The objection to the exclusion of execution may be raised at the stage of preservation in addition to the stage of execution. 3, exclude the implementation of the objection to the review period. The enforcement court shall complete the review within 15 days from the date of receipt of the enforcement objection. 4, exclude the implementation of the objection to the ruling of the remedy. An outsider or party to the case may, within 15 days from the date of service of the ruling, file a suit for objection to enforcement in the people's court. The remedy of the 3. error informing the remedy of the ruling of the execution objection. There are three ways to solve the problem of wrongly informing the remedy of the execution objection ruling in judicial practice. (I) relief way one: according to the relief way informed by the execution objection ruling, after entering the procedure, request the court to review and resolve the dispute of the relief way. There is a difference between the exclusion of an enforcement objection and an enforcement action objection, which is based on the exclusion of enforcement against the subject matter of the entity's interest in the subject matter of enforcement. The objection to the execution act is based on the existence of an interest in the subject matter of the execution and the damage to the rights and interests caused by the court's illegal execution act. Specifically, the exclusion of an enforcement objection is a necessary condition for the existence of an enforcement act against the subject matter of enforcement, and if the enforcement court mistakenly informs the outsider or the party in the enforcement objection ruling of the remedy, if the enforcement review procedure should have been initiated to resolve it, it is instead informed of the action to file an enforcement objection. In this regard, Article 105 of the judicial interpretation of China's Civil Procedure Law stipulates clear conditions for outsiders to file enforcement objections. In the stage of enforcement objections, it is necessary to examine whether it conforms to the legal circumstances of filing enforcement objections. In view of this, if you are not satisfied with the remedies set out in the execution objection ruling, you can file an execution objection suit or apply for execution reconsideration in accordance with the remedies set out in the execution objection ruling, and request a review of the compliance with the execution objection suit or whether the execution objection is filed after entering the procedure. In this regard, we can refer to Article 13 of the "Answers to Several Questions Concerning the Trial of Cases of Objection to Execution by the People's Court of Shandong High Court", which stipulates that "How to deal with the lawsuit filed by the parties against the execution act? Answer: If the parties only file an enforcement objection against the enforcement act, and do not request the exclusion of enforcement of the rights and interests of the claimed entity of the subject matter of enforcement, the ruling shall not be accepted; if it has been accepted, the ruling shall reject the prosecution and inform the parties to comply with the provisions of Article 225 of the the People's Republic of China Civil Procedure Law through the enforcement objection reconsideration procedure." Article 13 of the Jiangsu High Court's "Guidelines for the Trial of Cases with Objection to Enforcement" stipulates that "if the people's court is found to have incorrectly informed the remedy in the execution objection ruling during the trial of cases with objection to enforcement, how to deal with it? In the process of hearing the case of objection to execution, the people's court finds that the outsider raises an objection to the execution act, and if the enforcement department informs the outsider and the applicant to file an objection to execution in the execution objection ruling, it shall rule to reject the lawsuit and explain to the outsider and the applicant to resolve the case through the execution reconsideration or execution supervision procedure." (II) remedy 2: The remedy for the notification of the execution objection ruling is not an effective legal decision, so you can directly invoke the law to choose to file an enforcement reconsideration or enforcement objection, or apply for enforcement supervision and request a review of the remedy for the notification of the execution objection ruling. The second way of relief adheres to the view that Article 232 of the Civil Procedure Law is a way of relief granted by law, the execution objection ruling has not taken effect and the way of relief specified in the execution objection ruling does not belong to the judgment item, so the parties or outsiders of the case have the right to file a reconsideration of the execution objection ruling including the way of relief, or to file a claim for execution objection, or to take a way of relief for execution supervision. In this regard, the legal provisions that can be used for reference can be found in Article 72 of the provisions of the Supreme people's Court on several issues concerning the Enforcement of the people's Court (for trial implementation), which stipulates that "if the higher court discovers that the rulings, decisions, notices or specific enforcement acts made by the lower court in the course of enforcement are improper or wrong, it shall promptly instruct the lower court to correct them." Article 234 of the the People's Republic of China Civil Procedure Law stipulates that "in the course of execution, if an outsider raises a written objection to the subject matter of execution, the people's court shall examine it within 15 days from the date of receipt of the written objection, and if the reason is established, it shall rule to suspend the execution of the subject matter; if the reason is not established, it shall rule to reject it. If the outsider or party refuses to accept the ruling and considers the original judgment or ruling to be wrong, it, it, it shall proceed in accordance with the procedure." Article 3, (I), paragraph (IV), of the "Guide to Execution Supervision Cases" stipulates that "if you refuse to accept the execution objection ruling and fail to apply for execution reconsideration or file an execution objection lawsuit within the statutory time limit because it cannot be attributed to the complainant," the people's court may file a case for supervision if it reflects that the execution is illegal and there is no other legal execution relief procedure to file a complaint. The third way of (III) relief: if the dispute involved in the case does not mention the enforcement reconsideration or the enforcement objection, choose to directly file a lawsuit with the people's court with jurisdiction to solve the problem. The point of view of the third remedy is that the enforcement objection and the enforcement review procedure are only whether the rights and interests of the outsider to the subject matter of the execution are sufficient to exclude the enforcement and the legality of the enforcement act. If the claim is tort damages or liability for breach of contract, it can be resolved by another lawsuit. The "Several Opinions of the Supreme Court on the Reasonable Allocation and Scientific Operation of Enforcement Power" has clearly stipulated that "the seizure of the people's court has excluded the right to enforce the subject matter in another case". Therefore, if a tort claim against the enforcement applicant or the preservation applicant is brought on the grounds of tort damages, there will undoubtedly be obstacles to filing a case. If another lawsuit is filed to preserve the respondent or the person subject to execution to bear the liability for breach of contract, in the case of not involving the ownership of the subject matter, a separate lawsuit may be filed, after all, the enforcement objection and enforcement reconsideration do not review the breach of contract by the person subject to execution or the preservation of the respondent. Comparing the advantages and disadvantages of the three remedies, it can be found that the advantage of the first remedy lies in the legal issue of filing an enforcement reconsideration or enforcement objection in accordance with the remedy specified in the enforcement objection ruling, without worrying about the legal issue of the time limit for filing an enforcement reconsideration or enforcement objection. Because the time limit for the application of enforcement reconsideration or enforcement objection is legally exempt, once the wrong remedy is chosen, there may be a risk of litigation that the remedy is exhausted. The disadvantage is that choosing the wrong remedy may face litigation risks such as time-consuming cases, asset transfer to evade debts, and loss of equity remedies. The problem with the second remedy path is the difficulty of filing a case in the case of wrongly informing the remedy path of the execution of the objection ruling, after all, the form of filing a case by the filing court is different from the substantive review of the case. At the same time, it is also faced with the risk of litigation that causes loss of power once the wrong perception of the way to remedy the case. The third way of relief lies in the issue of property ownership of the subject matter of execution, which cannot be resolved by another lawsuit. Remedies under the Guidance of 4. Cases As for the wrong way to inform the remedy of the execution objection ruling, the judicial practice has the solution of way one and way two. If the dispute involved in the case is not resolved according to the correct remedy due to the wrong way to inform the party of the remedy of the execution objection ruling, the solution of revoking the execution objection ruling and sending it back for retrial is adopted in principle. Case 4 is the judgment case of the supreme law, and the judgment point is in the execution objection, if the execution objection ruling is wrongly informed of the remedy (the lawsuit for the execution objection should be informed but the execution reconsideration should be informed), the execution ruling should be revoked. Through the main text of the case, it can be found that the relief route taken in cases 1 and 3 is the first relief route, and the relief route taken in case 2 is the second relief route. In the searched cases, no judgment documents were found to directly correct the wrong remedy procedure in the enforcement objection lawsuit, enforcement reconsideration or enforcement supervision procedure. Such correction is also based on the large difference between the enforcement objection lawsuit, enforcement reconsideration and enforcement supervision procedure. The enforcement reconsideration procedure can be reviewed in writing, the enforcement objection lawsuit adopts the second instance final adjudication system, and the enforcement supervision procedure belongs to the petition relief method. Case 1: Case No. of the People's Court of Woyang County, Anhui Province:(2021) No. 6, 1621 Zhijian The main text of the judgment document: In the case of a private loan dispute between Wang Xiufang, the executor of the court's execution, and Zhang Kun and Deng Hongyan, the executor of the case, Zhang Jiaqi, an outsider, raised a written objection to the seizure of the property in Room 1304, Building 13, Yulongwan under his name, and at the same time considered the seizure procedure illegal on the grounds of not informing the relevant information and relief measures. After accepting the case, the court formed a collegial panel to review it according to law and made (2021) Wan 1621 Zhiyi No. 51 executive ruling on June 8, 2021. The Court found that the ruling was indeed wrong and conducted a review in accordance with the law, which has now been concluded. After examination, it was found that in the case of a dispute over private loans between Wang Xiufang, the executor of the court's execution, Zhang Kun and Deng Hongyan, the executor, Zhang Jiaqi, an outsider, raised a written objection to the seizure of the property in Room 1304, Building 13, Yulongwan under his name, and at the same time considered the seizure procedure illegal on the grounds of not informing the relevant information and relief measures. After examination, the hospital made an executive ruling (2021) Wan 1621 Zhiyi No. 51 on June 8, 2021: rejecting the objection of the objector Zhang Jiaqi. And inform the parties that the remedy is "if the outsider or the party is not satisfied with the ruling and thinks that the original judgment or ruling is wrong, it shall be handled in accordance with the trial supervision procedure; if it has nothing to do with the original judgment or ruling, it may bring a lawsuit to the people's court within 15 days from the date of service of this ruling." Zhang Jiaqi refused to accept, filed a lawsuit against the execution. After hearing, the Court held that the case should be essentially an objection to the execution of the act and should inform the parties of the right of reconsideration. Therefore, a civil ruling (2021) No. 5147 at the beginning of the Republic of Anhui 1621 was made: Zhang Jiaqi's lawsuit was rejected. No appeal was filed within the statutory time limit. This court holds that if the people's court seals up, detains or freezes the property of a third party in violation of the rules of judgment of property ownership, and the third party raises an objection to enforcement, it shall be examined in accordance with the provisions of Article 225 of the Civil procedure Law. In this case, the house involved in the case is registered in the name of the objector, and the objection to the execution of the seizure raised by the objector shall be examined in accordance with the provisions of Article 225 of the Civil procedure Law, and the parties shall be informed of the right of reconsideration in accordance with the law. The execution ruling of our hospital (2021) Wan 1621 Zhiyi No. 51 is indeed wrong and should be revoked. To sum up, the case was discussed and decided by the trial committee of this court, in accordance with Article 154, Paragraph 1 (11) of the the People's Republic of China Civil Procedure Law, the Supreme People's Court's decision on the People's Court's discovery of the pre-litigation preservation ruling made by the People's Court and the ruling made in the enforcement procedure. Errors and the People's Procuratorate's Reply on How the People's Court Should Deal with the Pre-litigation Preservation Rulings made by the People's Court (Fa Shi [1998] No. 17), the ruling is as follows: The 1. revoked the executive ruling of the hospital (2021) Wan 1621 Zhiyi No. 51; 2., this case will be reexamined and dealt with by this court. Case 2, Dalian Jinzhou District People's Court (2021) Liao 0213 Zhi Jian No. 3 Main document of the judgment document: in the case of dispute over the loan contract between the executor Dalian Jinzhou yinhai microfinance co., ltd. and the executor Shi fuzhong, the three complainants applied for objection to the execution of the court. after examination, the court issued (2016) Liao 0213 zhi yi 64 execution ruling on November 8, 2016 and served it to the three complainants. On April 15, 2021, the Trial Committee decided that (2016) Liao 0213 Zhiyi No. 64 enforcement ruling was wrong in applying the law and informing the objector of the legal remedy, and the enforcement supervision procedure should be initiated to correct it. After the case was filed, a collegial panel was formed in accordance with the law to review it, and the review has now been concluded. After examination, on November 16, 2014, the court issued (2014) Jin minchu zi no 2066 civil judgment, which ruled that the defendant (subject to execution) Shi fu was loyal to the plaintiff (subject to execution) within 10 days after the judgment came into effect.

2022-03-25

Ge Xiaowei lawyer for Shandong Financial Assets Trading Center Co., Ltd. to carry out private equity fund lectures.

On the afternoon of March 24, 2022, lawyer Ge Xiaowei, a financial investment department of Zhongcheng Qingtai Jinan Institute, went to Shandong Financial Assets Trading Center Co., Ltd. (hereinafter referred to as Jinjiao Center) to give a special lecture entitled "Overview of Private Equity Funds. This lecture is for the whole company of Jinjiao Center. Lawyer Yuan Jian, deputy director of Zhongcheng Qingtai Jinan Institute, lawyer Yu Cuilan, director of Finance Department, and lawyer Zhang Hao of Finance Department, as the consultant team of Jinjiao Center, attended the lecture and business discussion. Lawyer Ge Xiaowei taught the concept and classification of private equity funds, private equity fund supervision system, private equity fund operation mode, private equity fund risk prevention and other knowledge points, based on the experience accumulated in the whole process of private equity fund raising, investment, management, and retirement. From a practical point of view, combined with the business model and existing cases of the Golden Exchange Center, it was taught, which was widely praised by on-site leaders and employees. After the lecture, lawyer Yuan Jian and lawyer Yu Cuilan and their team conducted in-depth business docking with the Golden Exchange Center, and both sides were full of confidence in the follow-up cooperation.

2022-03-25

Wang Haiqing, deputy secretary of the Lixia District Committee of Jinan City, and his party visited Zhongcheng Qingtai for exchange.

On March 25, Wang Haiqing, deputy secretary of the Lixia District Party Committee of Jinan City, Wang Lei, deputy director of the Propaganda Department of the District Committee and director of the District Civilization Office, and the Yaojia Street Party Working Committee visited Zhongcheng Qingtai Jinan Institute for exchange, Geng Guoyu, director of Zhongcheng Qingtai Jinan Institute, Yao Huming, chairman of the board of supervisors, Du Wentang, director of the management committee, Zhou Jiakui and Ma Shibin warmly received and other members. Director Geng Guoyu accompanied Deputy Secretary Wang Haiqing and his party to visit the office area of Jinan Institute and introduced Zhongcheng Qingtai's development process, performance honor and business scope. At the symposium, Wang Haiqing, deputy secretary of the Lixia District Committee of Jinan City, introduced in detail the industrial structure of Lixia District and innovative measures in serving the people's livelihood; Director Geng Guoyu introduced the current situation of the lawyer industry in Jinan and the development status of Zhongcheng Qingtai. The two sides conducted in-depth discussions on how to play the role of lawyers in serving economic development and social livelihood. In the next step, lawyers of Zhongcheng Qingtai will make use of their professional and resource advantages to actively participate in the economic development and construction of Lixia District, adhere to the needs of the masses as the orientation, focus on the community, and take the brand as the guide. participate in a variety of civilized practice activities in the new era, and help the standardized and normalized development of civilized practice voluntary service.

2022-03-25

Administrative Litigation Vision (V) | Administrative Litigation Third Party

Foreword The current administrative procedure law and judicial interpretation provide for the third party system in administrative litigation. The third party in administrative litigation has its unique legal status. In practice, the grasp of the third party is based on the interest relationship with the administrative act or the result of the treatment. The third party in administrative litigation should be determined according to the corresponding standards and conditions. Correctly understanding and grasping the third party system of administrative litigation is of great significance for properly handling administrative litigation cases that require the participation of third parties. 1 The legal characteristics of the third party in administrative litigation. Article 29 of the "the People's Republic of China Administrative Litigation Law" (hereinafter referred to as the "Administrative Litigation Law") stipulates: "Citizens, legal persons or other organizations have an interest in the accused administrative act but have not filed a lawsuit, or have an interest in the outcome of the case., You can apply to participate in the lawsuit as a third party, or the people's court notifies you to participate in the lawsuit. If the people's court judges a third party to assume obligations or impair the rights and interests of a third party, the third party shall have the right to appeal in accordance with the law." Article 30 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Administrative Litigation Law (hereinafter referred to as the "Applicable Interpretation") stipulates: "The same administrative act of an administrative agency involves two or more interested parties, and some of the interested parties are responsible for the administrative act. If a lawsuit is filed if a person is not satisfied, the people's court shall notify other interested parties who have not filed a lawsuit to participate in the lawsuit as a third party. A third party who has an interest in the outcome of the administrative case may apply to participate in the proceedings, or the people's court shall notify him or her to participate in the proceedings. A third party whose people's court has made a judgment that he has assumed obligations or derogated from his rights and interests shall have the right to appeal or apply for a retrial. If the third party stipulated in Article 29 of the Administrative Procedure Law fails to participate in the litigation due to reasons that cannot be attributed to him, but there is evidence to prove that the legally effective judgment, ruling, or mediation agreement harms his legal rights and interests, he may, in accordance with the Administrative Procedure Law According to Article 90, within six months from the date when he knows or should know that his legal rights and interests have been damaged, apply to the people's court at the next higher level." According to the above provisions, the third party in administrative litigation refers to citizens, legal persons or other organizations other than the original or defendant who have an interest in the specific administrative act being sued and apply in their own name to participate in or participate in administrative litigation at the notice of the people's court. The third party in administrative litigation has the following legal characteristics: 1. The third party is a participant in the litigation other than the plaintiff and the defendant, and has an independent legal status. The purpose of participating in the litigation is not to safeguard the rights and interests of the plaintiff, nor to safeguard the rights and interests of the defendant, but to safeguard their own independent legal rights and interests; 2. The participation of a third party in the proceedings must be conducted before the administrative proceedings have been initiated and have not been concluded; 3. The third party's participation in the proceedings is by his own application or by notice of the people's court; 4. The third party's participation in the proceedings is based on an interest in the specific administrative act being sued; 5. The third party has the right to raise claims related to the case, which may be different from the claims of the plaintiff or the defendant, or consistent with the claims of one of the parties, and the third party has the right to appeal or retry against the judgment of the case. 2 Types of Third Party in Administrative Litigation According to the relevant provisions of the Administrative Procedure Law and the Applicable Interpretation, when a citizen, legal person or other organization acts as a third party in administrative litigation, it can be divided into a third party who has an interest in the administrative act made and a third party who has an interest in the outcome of the case. At the same time, in the case of adding the administrative organ as the defendant and making it easy to find out the facts of the case, the administrative organ can also participate in the litigation as a third party. In general, the third people in administrative litigation can be roughly divided into three categories: (I) a third person who has an interest in the administrative act The third person who has an interest in the administrative act refers to the third person who should have filed an administrative lawsuit but did not sue, thus participating in the lawsuit filed by other plaintiffs. The first paragraph of Article 30 of the "Applicable Interpretation" stipulates: "The same administrative act of an administrative agency involves two or more interested parties, and some of the interested parties are dissatisfied with the administrative act and file a lawsuit, the people's court shall notify other interested parties who have not filed a lawsuit. Participate in the litigation as a third party." The third person stipulated in this article is the third person who has an interest in the administrative act. According to this article, a third party who has an interest in an administrative act must meet two elements: first, it has an interest in the administrative act, including the counterparty to the administrative act and other interested parties; and second, the interested party has not brought a lawsuit, thus participating in a lawsuit brought by others. According to the provisions of Article 27 of the "Applicable Interpretation", if the same administrative act involves two or more interested parties, it is necessary to join the litigation, and the court where the parties have not participated in the litigation shall notify them to participate. Article 28 of the Interpretation of Application stipulates: "When a people's court adds a party to a joint action, it shall notify the other parties. The plaintiff who should be added may not be added if he has expressly waived his substantive rights; if he is neither willing to participate in the proceedings nor waives his substantive rights, he shall be added as a third party, and his non-participation in the proceedings shall not hinder the people's court from hearing and adjudication of the case." Accordingly, a third party in a necessary joint action who is neither willing to participate in the proceedings nor waives substantive rights is a third party who has an interest in the administrative act. Therefore, the determination of the substantive elements of the third party who has an interest in the administrative act can be judged by reference to the standard of the plaintiff in the necessary joint action. With regard to the third party who has an interest in the administrative act, Article 6 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases stipulates: "After the people's court accepts the administrative case of housing registration, it shall notify the following interested parties who have not filed a lawsuit to participate in the administrative lawsuit as the third party: (1) the right holders specified in the housing register; (II) the right holders of the registered objection, correction and advance notice registration; (III) other interested parties that the people's court can confirm." The above-mentioned third person is the relative of the administrative act of registration made by the housing registration authority and has the qualification of plaintiff. Because no lawsuit has been filed, the people's court should be added as the third person. (II) a third person who has an interest in the outcome of the case The third party who has an interest in the outcome of the case refers to the person who has no interest in the accused administrative act and does not have the qualification of plaintiff, but the outcome of the case will have an impact on his rights and interests, which is similar to the third party who has no independent claim in civil litigation. The second paragraph of Article 30 of the "Applicable Interpretation" stipulates: "A third party who has an interest in the outcome of the administrative case may apply to participate in the proceedings, or the people's court shall notify him to participate in the proceedings. The third party whose rights and interests are judged by the people's court to bear obligations or derogate from their rights and interests shall have the right to appeal or apply for a retrial." Different from the third party who has an interest in the administrative act, the third party who has an interest in the result of the case does not meet the qualification conditions of the plaintiff at the beginning. It is only to protect its legitimate rights and interests, simplify the litigation procedure, avoid the litigation burden, and at the same time, it is included in the scope of the third party in order to save judicial resources. In (2013) Qiongxing Zhongzi No. 169 case, a municipal people's government entrusted an urban construction investment company to carry out the infrastructure construction of a comprehensive development project of an international eco-tourism area, and the two sides signed an agreement. The municipal government issued a land expropriation announcement and signed a land expropriation compensation agreement with the village collective including the village group where villager A is located. Villager A's land is within the scope of expropriation, but Villager A does not cooperate with the inventory confirmation of the young crops. In the case that the municipal government's land department issues a notice to them to clean up the young crops on their own within the time limit and they do not clean up on their own within the time limit, the municipal government will remove the young crops. A brings an administrative lawsuit against the administrative enforcement of the municipal government. At this time, can an urban construction investment company participate in the lawsuit as a third party? First of all, an urban construction investment company is not the counterpart of the government's enforcement action, and the enforcement action does not have any adverse effect on its rights and interests, so it is not a third party with an interest in the administrative action. Secondly, if the court confirms that the enforcement behavior is illegal, because of the particularity of the subject matter of the administrative act in this case, that is, young crops, the court cannot judge to restore the original state, and should judge to compensate for the losses. Unless an urban construction investment company and a municipal government agree that this situation will hinder the implementation of the agreement, otherwise the judgment result of compensation for losses will not affect the municipal government's implementation of the agreement, therefore, in this case, an urban construction investment company does not have an interest in the verdict, and it should not participate in the litigation as a third party. However, if villager A files an administrative lawsuit based on his disobedience to the land expropriation compensation agreement signed between the municipal government and the village collective, although an urban construction investment company has no interest in the administrative act of signing the land compensation agreement, if the court decides that the land expropriation compensation agreement is invalid or not applicable to villager A, then the municipal government has no right to expropriate the land or the land of A, an urban construction investment company will not be able to carry out project development and construction according to its agreement with the municipal government, which will inevitably affect the performance of the agreement between the two parties. In the case of (2017) Supreme Law Xing Shen No. 195, the Supreme Court held that the stipulation that "those who have an interest in the outcome of the case may apply to participate in the proceedings as a third party, or the people's court shall notify them to participate in the proceedings" should clearly include at least: (1) the third party is determined, and all possible rights or interests related to the case cannot be the third party; the (II) interest is determined, and not all possible rights and even interests related to the case are interested. Otherwise, it is not only easy to cause improper trial of other disputes in this case and disturb the normal progress of administrative litigation, but also easy to cause the case to be delayed for a long time and affect the stability of relevant administrative legal relations. (III) administration as a third party The second paragraph of Article 26 of the "Applicable Interpretation" stipulates: "If the defendant should be added and the plaintiff does not agree to the addition, the people's court shall notify him to participate in the litigation as a third party, except where the administrative reconsideration agency is a co-defendant." According to this article, in addition to the law of the reconsideration organ as a co-defendant, the court must add him as a defendant, and other co-defendants who do not agree to the addition shall participate in the proceedings as a third party. In addition, for administrative organs that were not originally defendants in cases, judicial precedents also give them the qualification to act as third parties in litigation. (2016) In the case of Supreme Law Application No. 2907, the Supreme People's Court held that other administrative organs related to the accused administrative act participated in the lawsuit as a third party, which usually belongs to a kind of simple auxiliary participation. Especially in cases involving approval act, pre-act, auxiliary act, administrative contract and exceeding authority, other administrative organs were allowed to participate in the lawsuit as a third party. For finding out the facts of the case and clarifying legal responsibilities, it is more positive. (2017) In the case of Supreme Law Xing Shen No. 2289, the Supreme Court held that although Article 26, paragraph 5, of the Administrative Procedure Law stipulates that "the entrusted administrative organ is the defendant for administrative acts committed by organizations entrusted by administrative organs", the people's court may allow organizations entrusted by administrative organs to participate in the proceedings as co-defendants or third parties if it is more convenient to find out the facts of the case. In the case of (2018) Supreme Law Xing Shen No. 5313, the Supreme People's Court held that the Liangwu villagers' group should take Qingyuan Municipal Government as the defendant if it refuses to accept the above reconsideration decision and file a lawsuit in the people's court. If Yangshan County Government can participate in the lawsuit as a third party, it will be more conducive to finding out the facts of the case. However, the failure of Yangshan County Government to participate in the lawsuit in the lawsuit does not violate the law. 1. the law. In the above cases, the administrative agency is not the defendant in the administrative litigation, but its participation in the litigation is conducive to finding out the facts of the case and will not adversely affect the parties, so the Supreme Court recognizes that it can participate in the litigation as a third party. 3 The Litigation Rights of the Third Party in Administrative Litigation (I) participation in proceedings According to the provisions of Article 30 of the applicable interpretation, the people's court shall notify the third party who has an interest in the administrative act to participate in the proceedings. A third party who has an interest in the outcome of the case may apply to participate in the proceedings, or the people's court shall notify him or her to participate in the proceedings. If the people's court should notify but does not notify, or should agree but does not agree, resulting in a third party's failure to participate in the proceedings, it belongs to the party who omitted the necessary participation in the proceedings. According to Article 109 of the "Applicable Interpretation": "If the original judgment omits the parties or litigation requests who must participate in the litigation, the people's court of second instance shall rule to revoke the original judgment and send it back for retrial." In the case of (2020) No. 5 of the Supreme Law Bank Compensation, the Supreme Court held that: Dongfang Municipal Government had previously identified Dao Xi Forest Farm, Huangning Village and Bashuo Village as the right holders of the expropriated land, and the 31 group of Xiaoling Village claimed that part of the expropriated land belonged to it, which would inevitably conflict with the ownership of the expropriated land by at least one of the above three villages, it is bound to infringe on the interests of at least one of the expropriated subjects. 1. the court of second instance does not notify the above three subjects to participate in the litigation, it directly confirms the relevant land ownership dispute, which may infringe on the legitimate rights and interests of outsiders. Therefore, the 1. of the second instance judgment belongs to the omission of the parties who must participate in the proceedings. In this case, the court should notify a third party to participate in the proceedings without notice. (II) the third person's right of appeal The second paragraph of Article 29 of the "Administrative Litigation Law" stipulates: "If the people's court decides that a third party assumes obligations or impairs the rights and interests of a third party, the third party has the right to appeal in accordance with the law." Similar to the provisions of the Civil procedure Law, "the third party who bears civil liability in the judgment of the people's court has the litigation rights and obligations of the parties", the law gives the third party the conditional right of appeal, and only when the judgment has an adverse effect on it, the third party has the right to appeal. Because the third party is not a litigant in the narrow sense after all, and the original defendant in a different litigation status, should have different litigation rights. One of the purposes of the establishment of the third party system is to reduce litigation and save judicial resources. If the third party's litigation rights are not restricted, the case may be delayed for a long time, contrary to the purpose of the establishment of the third party system. Of course, based on the purpose of the third-party system to safeguard the rights of interested parties, if the judgment is detrimental to the rights and interests of third parties, they should be given the right to appeal. (III) the right of retrial of the third person The third paragraph of Article 30 of the "Interpretation of Application" stipulates: "If a third party stipulated in Article 29 of the Administrative Procedure Law fails to participate in the litigation due to reasons that cannot be attributed to him, but there is evidence to prove that a legally effective judgment, ruling or mediation agreement harms his legal rights and interests, he may, in accordance with the provisions of Article 90 of the Administrative Procedure Law, know or should know that his legal rights and interests have been harmed, apply to the people's court at the next higher level for a retrial." In this regard, the Supreme Court in (2018) the Supreme Law.

2022-03-25

Lawyer Luo Xianghu received a "Thank You Letter" on behalf of Zibo City's first case of immediate performance of ecological environment.

Recently, Zhongcheng Qingtai (Jinan) Law Firm received a "Thank You Letter" from Gaoqing Branch of Zibo Ecological Environment Bureau. In the letter, the bureau expressed its gratitude and appreciation to Luo Xianghu's lawyer team for assisting him in successfully handling the first ecological environment immediate performance case in Zibo City. On June 14, 2020, a rear-end traffic accident occurred on the S29 Binlai Expressway in Gaoqing County, Zibo City, resulting in the leakage of styrene loaded by a heavy tanker truck in front of the vehicle. In view of styrene is a "high flash point liquid", flammable and explosive, suspected carcinogen, with irritation. Styrene is a serious hazard to the environment and can cause pollution to water, soil and atmosphere. After the accident, the Gaoqing County Party Committee and the county government instructed the Gaoqing Branch of the Zibo Ecological Environment Bureau to properly handle the scene of the accident. The Gaoqing Branch of Zibo Ecological Environment Bureau has implemented the procedure of immediate fulfillment of ecological environment in accordance with the law. The company to which the vehicle in the accident belongs refuses to pay the expenses incurred by the aforementioned acts of performance without justifiable reasons. The Gaoqing Branch of Zibo Ecological Environment Bureau entrusted the Luo Xianghu lawyer team of Zhongcheng Qingtai (Jinan) Law Firm to assist it in handling the case. Although Article 52 of the "Administrative Manicure Law" and related laws have provisions on agency performance cases, agency performance cases, especially immediate agency performance cases involving the ecological environment, have the characteristics of difficulty in obtaining evidence and cumbersome procedures, and there are fewer practical cases. After representing the case, lawyer Luo Xianghu carefully studied the facts and legal provisions of the case, and formed a relatively safe agency idea. after assisting the bureau to serve legal documents such as the "acting performance decision" and "acting performance decision reminder notice" to the enterprises involved, the company to which the accident vehicle belongs paid the acting performance fee and late fee to the Gaoqing Branch of Zibo Ecological Environment Bureau.

2022-03-22