Does the procuratorate need to entrust an investigation letter to sue the court?

An investigation order is a document that the people's court entrusts a lawyer to investigate and collect evidence. The nature of the investigation order should be a document that the court entrusts a lawyer to investigate and collect evidence at the application of the parties or litigation agents. It is a document endorsed by public power and has certain coercive power. In practice, many local courts have issued corresponding norms, and the judgments of courts at all levels (including the Supreme Court) also involve the issuance of investigation orders, which may have a substantial impact on the outcome of the case.

The concept of investigation order

In practice, there are two forms, investigation letter and investigation order, which are all documents made by the court according to Articles 64 and 67 of the Civil Procedure Law. The two are often confused. Some people think that the compulsory nature of the two is different, that is, the compulsory nature of the investigation order is stronger than that of the investigation letter, and the requirements made in the form of the letter are often easily ignored, so that the release can attract the attention of the units and individuals being obtained, and the responsibility for violating the obligation can be attached. Although this opinion is reasonable, it has no legal basis. From the normative point of view, it is easy to see the difference and connection between investigation letter and investigation order.

There are no provisions on investigation letters and orders in laws and administrative regulations. In the judicial interpretation, in the Model Administrative Litigation Document (Trial) issued on April 30th, 20th1May, the model administrative litigation document 105 "Letter of Entrusting Investigation" indicates that it is used to entrust other courts to assist in the investigation, and it is not an instrument used by the accepting court to investigate by itself or entrust the parties or lawyers to investigate.

Article 72 of the Supervision Rules for Civil Litigation of People's Procuratorates (Trial) issued on October 8, 20 1 13 stipulates: "People's procuratorates may order people's procuratorates at lower levels or entrust people's procuratorates in other places to investigate and verify.

When a people's procuratorate orders investigation or entrusts investigation, it shall issue a notice of instruction investigation or a letter of entrustment investigation.

Judging from the expression of this article, the people's procuratorate can use the notice of instruction investigation to ask the lower procuratorate to investigate and collect evidence; You can also entrust a foreign procuratorate to collect evidence and use a letter of entrustment.

Judging from the above two norms, judicial practice tends to think that the letter of investigation is a document entrusted to foreign judicial organs for investigation and evidence collection, so the name used is "letter", which is a request rather than an order. The same idea is reflected in the Supreme People's Court's Reply on Request for Instructions on the Case of Subrogation Dispute between Shenzhen Development Bank and SEG (Hong Kong) Co., Ltd. and Shenzhen SEG Group Finance Company (Minsi Tezi No.31) on September 6, 2005. In the request of Guangdong Higher People's Court [2005] Y.S.Z.No. 16 attached to this reply, the basic facts of this case are as follows: "On August 30, 2006, Beijing No.2 Intermediate People's Court (hereinafter referred to as Beijing No.2 Intermediate People's Court) adopted the [200 1] Shen Chong Law, which also showed the position of the investigation letter in judicial practice.

In the Model Administrative Litigation Document (Trial), model 7 1 is a notice, which stipulates: "The people's court that implements the investigation order system may also formulate corresponding model investigation orders with reference to this model, and the parties may apply to the people's court for issuing an investigation order according to law, and collect evidence from a third party according to the investigation order."

On February 4th, 20 15, the Supreme Court announced 49 typical cases of marriage and family disputes, among which the 43rd divorce case, plaintiff Lu Moufang v defendant Xu Mokun, was typically expressed as: "In addition, for bank deposits, stock funds, etc., you can apply to the court for investigation or a lawyer can issue an investigation order at the same time of prosecution. Once the property is found, property preservation measures can be taken as appropriate. "

Paragraph 3 of Article 51 of the Guide to the Trial of Marriage Cases Involving Domestic Violence issued by the Supreme People's Court China Law Society on March 1 2008 stipulates: "If it is really necessary for the people's court to collect evidence after examination, it may collect evidence directly, or it may issue an investigation order at the request of the parties or their agents, and their agents shall collect evidence from relevant departments."

Cao Jianming, vice president of the Supreme People's Court, clearly pointed out in his speech at the symposium on intellectual property trial of national courts on June 5438+10/October 65438+August 2007: "To explore the practice of court trial investigation order, the court may authorize the attorney of the parties to investigate and collect the evidence that belongs to the relevant state departments but the parties cannot obtain on their own and other evidence that the parties cannot collect on their own due to objective reasons."

Judging from the provisions of the above judicial interpretation, it can be concluded that the investigation letter is a document used by the judicial organs to entrust the judicial organs in different places to obtain evidence, while the investigation order is a document issued by the judicial organs at the request of the parties or agents ad litem to entrust lawyers to investigate and collect evidence. Therefore, the investigation order can be defined as: if the parties and their agents ad litem are unable to collect evidence by themselves due to objective reasons, they can apply to the court for investigation and collection. With the permission of the court, an investigation order may be issued to entrust a lawyer with an investigation order to investigate and collect evidence.

However, on May 27th, 20 1 1, "Several Opinions of the Supreme People's Court on Evading the Enforcement of Sanctions according to Law" was issued: Article 2 of the Notice stipulates: "Local courts may also explore and try to give lawyers the right to investigate property within the scope of law by means of investigation orders and entrusted investigation letters according to local actual conditions. "Obviously, I think we can entrust a lawyer to investigate and collect evidence in the form of an investigation letter. This is not consistent with the opinions of "Administrative Litigation Document Style (Trial)" and "Civil Litigation Supervision Rules of People's Procuratorate (Trial)", which also shows that the understanding of this concept is not uniform in judicial practice.

Nature of investigation order

Regarding the nature of the investigation order, some people think that the investigation order only reflects the people's court's support for lawyers' investigation. This view holds that the investigation and evidence collection of the parties belongs to private rights. When a party in a dispute gives his right to investigate and collect evidence to a lawyer, this right is still a private right ... The court's issuance of an investigation order does not mean transferring part of his public power to a lawyer, nor does it mean entrusting a lawyer to exercise the investigation right on his behalf. [ 1]

The author thinks that judging from the documents such as the Style of Administrative Litigation Documents (Trial), the Guide to the Trial of Domestic Violence Marriage Cases, the speech made by Cao Jianming, Vice President of the Supreme People's Court, at the symposium on intellectual property trial in national courts on June 5438+1October 08, 2007, and 49 typical cases of marriage and family disputes announced by the Supreme Court, the nature of the investigation order should be that the court entrusts lawyers to investigate and collect evidence, and it is endorsed by public power. The reasons are as follows: first, the above-mentioned documents require the parties or agents ad litem to apply to the court for issuing an investigation order on the premise that the parties or agents ad litem cannot collect evidence by themselves or the parties or agents ad litem cannot collect evidence by themselves for objective reasons. If the rights stated in the investigation order are still the private rights of the parties, then the investigation order becomes meaningless-those who can't obtain evidence by themselves still can't obtain evidence by themselves, and those who can obtain evidence by themselves don't need an investigation order at all; Second, the above-mentioned document juxtaposes the investigation order issued by the court with the investigation by the court ex officio, indicating that the investigation order comes from the court's self-investigation power, but the court entrusts this power to lawyers for the sake of neutrality and litigation efficiency.

The nature of the investigation order is very important, which involves the coercive power of the investigation order. 200 1 65438, Article 31 of the Lawyers Law, as amended on February 29th, stipulates: "When a lawyer undertakes legal affairs, he may investigate the situation with the consent of the relevant unit or individual." That is, if a lawyer investigates and collects evidence on his own, he must obtain the consent of the parties. Paragraph 2 of Article 35 of the Lawyers Law, which was revised on 20 12126, stipulates: "A lawyer who investigates and collects evidence by himself may, on the strength of his lawyer's practice license and the certificate of law firm, investigate the legal affairs of the relevant units or individuals." Although this article cancels the premise of the consent of the parties, if the parties refuse to cooperate, the investigation and evidence collection cannot be carried out. However, under the circumstances stipulated in Article 94 of the Civil Procedure Law, the parties and their agents cannot collect evidence by themselves. If the investigation order is only the court's support for the investigation and evidence collection of the parties and lawyers, it will not solve the above two stubborn diseases.

If the investigation order is a document that the court entrusts a lawyer to exercise the court's authority to investigate and collect evidence, even if it is only part of the authority, the lawyer can investigate and collect evidence to explain the first and third items of Article 94, paragraph 1, of the Civil Procedure Law on this basis, and the respondent shall not refuse. [2]

actual survey

Although the investigation order does not appear in the legal provisions, it is still widely used in judicial practice. At the normative level, take the practice of Shanghai as an example. The Shanghai Higher People's Court has issued a number of normative documents, such as the "Operating Rules of Shanghai Higher People's Court on the Application of Investigation Orders in the Case-filing Review Stage (Trial)" issued on July 6, 2006; Detailed Rules for the Implementation of Shanghai Court's Investigation Order issued on June 13, 2004; Provisions of Shanghai Higher People's Court on Execution of Investigation Orders issued on March 26th, 2004.

Judging from the provisions of the above documents, the characteristics of the investigation order are as follows: First, the subject is divided into the applicant and the holder. The applicant may be a party and an entrusted agent, but the holder is limited to the agent. The right to investigate and collect evidence stipulated in the investigation order is limited to the holder. Second, the positive condition for issuing an investigation order is that the applicant cannot obtain evidence and fulfill the burden of proof for objective reasons, and can only obtain it after applying to the court. Third, the negative condition for issuing an investigation order is that it involves state secrets, personal privacy, and evidence that is not suitable for litigation lawyers to investigate and collect by themselves with an investigation order, and it will not be issued. Fourth, the respondent's obligation is that in order to cooperate with the investigation, he must provide evidence. If he cannot provide evidence, he shall explain the reasons in writing.

Special attention should be paid to the scope of evidence collected by the investigation order. In the Operating Rules of Shanghai Higher People's Court on the Application of Investigation Order in the Case-filing Review Stage (Trial), the effective scope of investigation order is the qualification of litigants and the court's jurisdiction over litigation-related disputes. Article 4 of the Provisions of Shanghai Higher People's Court on the Use of Investigation Orders in Execution Procedures (Trial) limits the effective scope of investigation orders to documentary evidence such as archival materials, certificates of rights, e-books and cards, letters and telegrams; Witness testimony and other forms of evidence shall not be included. [3]

Judging from the court's judgment, there are also many judgment documents involving investigation orders. The author searched for "investigation orders" with 16, 10, 3 1 on China's judgment documents online, and the search results showed that the Supreme Court had six judgment documents. It is worth noting that (20 15) Shen Minzi's civil ruling No.828 and (20 13) Shen Minzi's civil ruling No.01662-1. These two rulings stated that the retrial applicant applied to the accepting court for an investigation order during the second instance and the first instance respectively. In the former case, the retrial applicant applied for an investigation order during the second trial, but failed to obtain permission; In the latter case, the retrial applicant applied for an investigation order during the first instance, but the lawyer failed to collect relevant evidence with the investigation order, and then applied to the court for ex officio investigation and evidence collection but was rejected. In both rulings, the Supreme Court found that the court of first instance violated the provisions of the second paragraph of Article 64 of the Civil Procedure Law and the fourth paragraph of Article 96 of the Interpretation of the Civil Procedure Law, and retried the case according to the provisions of the fifth paragraph of Article 200 of the Civil Procedure Law. This shows that the investigation order is playing an increasingly important role in civil litigation, which deserves every legal person's consideration.

[1] Tang Xiaotian, etc., Legal Attribute of Investigation Order System and Suggestions for Improvement, Law Application, 07, 2008.

[2] Paragraph 1 of Article 67 of the Civil Procedure Law stipulates that the people's court has the right to investigate and collect evidence from relevant units and individuals, and the relevant units and individuals may not refuse. If the court entrusts the parties and lawyers to investigate in the form of an investigation order, the relevant units and individuals also have the above obligations, even if there is no punishment for violating this obligation.

[3] On this point, the author slightly disagrees. In addition to documentary evidence, there may also be physical evidence and electronic data when the parties cannot obtain it by themselves for objective reasons and need to apply for court investigation. At this time, the court may also entrust an attorney to collect evidence in the form of an investigation order.

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