National defense interests are an important part of the fundamental interests of the broad masses of the people. It is an important duty and mission of the people's courts to safeguard the interests of national defense and the army, and the legitimate rights and interests of servicemen's families according to law, and it is also an important aspect for the people's courts to serve the overall situation and serve the people's justice. Handling military-related civil cases fairly and timely is an important part of the trial work of the people's courts, an important means for the people's courts to promote social harmony and military stability, and an important way to close the new military-civilian relationship. Over the years, the Supreme People's Court has attached great importance to the trial of military-related cases, and issued a series of judicial interpretations or guidance documents on military-related cases alone or in conjunction with relevant departments, involving criminal and civil trials and the improvement of the trial system and working mechanism.
since the mid-198s, in order to make up for the shortage of military funds, the whole army began to engage in large-scale production and business activities, and various military-related economic disputes occurred one after another. In May 1988, the Military Court of the People's Liberation Army of China put forward the Request for Instructions on Authorizing Military Courts to Accept Economic, Civil and Administrative Cases, which was discussed and agreed by the Judicial Committee of the hospital and officially replied that the military courts of the hospital could accept it. In March 1989, the Military Court of the People's Liberation Army of China issued the Notice on Trial Trial Trial of Military Economic Disputes in Military Courts, and trial of military economic disputes was carried out in some grass-roots military courts. After three years of pilot work, military courts have tried more than 9 cases of economic disputes in the first instance, with the subject matter of 16 million yuan, which has resolved some contradictions in military economic disputes. With the increasing number of military economic disputes, in August, 1992, the Military Court of the People's Liberation Army of China put forward the Request for Instructions on Military Court's Trial of Military Economic Disputes, suggesting that military courts at all levels should try economic disputes with both parties in the military. On October 4th of the same year, the Reply on Military Court's Trial of Military Economic Disputes (hereinafter referred to as "Reply in 1992") stipulated that "economic disputes within military units agreed by both parties shall continue to be tried by military courts".
In view of the large increase of civil cases in the military, such as marriage and family, declaration of missing or death of soldiers, ordering of weapons and equipment, transfer of military products, loans between soldiers, compensation for personal or property damage, and national defense patents, in order to properly handle civil cases in the military and protect the national defense interests and the legitimate rights and interests of soldiers and their families according to law, on June 26, 21, our hospital issued a legal letter [21]. The military court tried both parties according to law. If the applicant applies to the military court, the military court may accept the application to declare the soldier missing or dead. If one of the parties to a civil case is a non-soldier, it shall be accepted by the local people's court. Two, the parties to bring a civil lawsuit to the military court, the principle of voluntariness, that is, the plaintiff can bring a lawsuit to the military court or to the local people's court. "
From 1993 to March 211, military courts concluded 2,519 civil cases of first instance, with a target of 1.65 billion yuan. Among them, since the implementation of the "Reply" in 21, military courts have concluded 1,725 civil cases of first instance, with a closing target of 465 million yuan. These cases mainly have the following characteristics: First, the types of cases are relatively concentrated. From 27 to March 211, among the 783 civil cases of first instance concluded by military courts, the common types of cases include contract disputes (29.2%), loan disputes (25.8%), marriage and family disputes (15.7%), infringement damages disputes (11.4%) and ownership disputes (11.4%). Second, the subject of litigation is relatively fixed. Most of the parties are soldiers and military units, but there are also military courts that accept cases of local parties suing soldiers or military units, accounting for about 15% of the total number of civil cases accepted by military courts in first instance. The third is to settle the case through mediation. Among the concluded cases, 44 cases were closed through mediation, and 213 cases were withdrawn, with a withdrawal rate of 78.8%. This is higher than the mediation withdrawal rate of civil cases in the first instance in China (67.3% in 212 and no more than 7% in previous years). Fourth, the case execution rate is high. Up to now, all the property cases that have been settled have been executed, and there is no backlog of execution, and the case has really been settled. Military courts have been conducting civil trials for nearly 2 years, which has played an active role in resolving civil disputes in time, safeguarding the legitimate rights and interests of officers and men in the army and promoting the all-round construction of the army.
judging from the national courts, there are still some major problems in the trial of military-related civil cases.
First, the legal basis for military courts to accept civil cases is insufficient. As the Organic Law of Military Courts has not been promulgated and implemented, only the principle of military courts as special people's courts is stipulated in Article 2 of the Organic Law of People's Courts, and the organizational structure and judicial power of military courts are not further clarified. According to Article 6 of the Provisions of the Supreme People's Court on Judicial Interpretation issued and implemented by the Supreme People's Court on April 1, 27, "Reply" is applicable to requests for instructions on the specific application of laws in the work of higher people's courts. "Interpretation" should be an explanation of a specific legal provision in trial work, or an explanation of how to apply laws to a certain type of cases and problems, and "Explanation" should be an explanation of laws. The "Reply" in 21 is not a judicial interpretation, but a general judicial interpretation document, which is not effective enough. The civil cases under the jurisdiction of military courts are civil cases involving the military. How to apply the law should be clarified in the form of "interpretation".
Secondly, there are some problems in the trial of military-related cases in local courts, such as difficult identification of subject qualification, difficult delivery, difficult property preservation, difficult investigation and evidence collection, long trial period and difficult case execution, which seriously affect the trial of military-related civil cases. To this end, in 21, the hospital formulated the Notice on Further Strengthening the Trial of Military-related Cases in People's Courts (hereinafter referred to as the Notice), specifically improving the coordination mechanism between the military and local governments, and establishing and improving the systems of joint meetings between the military and local governments, information notification of military-related cases, and supervision of major military-related cases, so as to promote the resolution of difficult trial problems of military-related cases. However, for civil cases in which both parties are soldiers or military units, local parties apply for declaring soldiers missing or dead, and request soldiers or military units to bear tort liability, local courts still have difficulties in investigating and obtaining evidence, serving them and executing them.
Third, the scope of accepting civil cases by military courts is too narrow. According to the provisions of the Letter of 21, military courts can only try civil cases in which both parties are soldiers or military units, which makes some cases that are more convenient to solve in military courts and resolve contradictions and disputes thoroughly unable to enter military courts, and the trial resources are not rationally allocated. In recent years, deputies to the National People's Congress have repeatedly put forward relevant suggestions, demanding strengthening legislation, strengthening the function of military courts in trying civil cases, earnestly safeguarding national defense interests and the legitimate rights and interests of military families, and maintaining social stability.
the regulations are based on solving some outstanding difficulties and problems in the current trial of military-related civil cases, further clarifying and moderately relaxing the jurisdiction of military courts over civil cases, promoting the proper settlement of related cases, and safeguarding national defense interests, the rights and interests of military families and the rights and interests of local parties.
Second, the basic idea of formulating the Regulations
The Regulations are standardized according to the scope and conditions for military courts to accept civil cases, mainly from the following four aspects, and safeguard the legitimate rights and interests of military personnel and local parties according to law.
First, adhere to the principle of the appropriateness of the scope of civil cases under the jurisdiction of military courts. Military courts are specialized courts, and the scope of their jurisdiction over civil cases should be based on the principle that both parties are soldiers or military units, and the scope of cases in which one party is a soldier or military unit should be appropriately expanded according to the will of the parties.
the second is to adhere to the principle of convenience. Conscientiously implement the principle that the civil procedure law is convenient for the parties to litigate and the people's courts to try. For cases with inconvenient transportation and under the jurisdiction of local military courts, they can bring a lawsuit to the local people's court, and the parties can choose the jurisdiction court independently.
the third is to adhere to the principle of procedural justice. Jurisdiction is a controversial aspect in current civil litigation, which has a great influence on the substantive rights and interests of the parties. The provisions emphasize the protection of the procedural rights of the parties, and specifically clarify the remedies for solving jurisdictional disputes and jurisdictional objections.
the fourth is the principle of giving consideration to the interests of national defense, the rights and interests of military personnel and protecting the rights and interests of local parties. In civil cases where one party is a local party, fully respect the wishes of the parties and insist that the parties choose the court of jurisdiction.
III. Scope of jurisdiction of military courts over civil cases
The scope of jurisdiction of military courts over civil cases is the focus of the Regulations. Includes the following aspects.
regarding the special jurisdiction of military courts over civil cases
in the first paragraph of article 1 of the regulations, cases in which both parties are soldiers or military units shall be under the jurisdiction of military courts, unless otherwise stipulated by law. This is the general provision of military courts' jurisdiction over civil cases, which embodies the basic principle of personal jurisdiction. It is a further generalization and specification of Article 1 of the 21 "Letter of Criticism", that is, "Military courts try civil cases in which both parties are active servicemen, retired cadres managed by the army, employees of the army or legal persons within the army".
The provisions of the Law of People's Republic of China (PRC) on Military Courts and the Judicial Rules of Military Courts.
Item 2 of Article 1 of the Regulations is about the jurisdiction of military secret cases involving secrets or above. On January 27, 1961, the Supreme People's Procuratorate, the Supreme People's Court, the Ministry of Public Security and the General Political Department of the People's Liberation Army jointly issued the Notice on Protecting the Household Registration of Employees and Their Families in Cutting-edge Departments and Handling Cases, which stipulated: "All civil and criminal cases involving internal secrets. All civil and criminal cases involving internal secrets should also be handled by military procuratorial and military judicial departments. " Article 11 of the Regulations of China People's Liberation Army on Secrecy stipulates that military secrets are classified into top secret, confidential and secret levels. Top secret military secrets are the most important military secrets, which will cause particularly serious damage to national defense security and military interests after being leaked; Confidential military secrets are important military secrets, which will seriously damage national defense security and military interests after disclosure; Secret-level military secrets are general military secrets, which will damage national defense security and military interests after being leaked. This item clearly stipulates that cases involving military secrets above the confidential level shall be under the jurisdiction of military courts.
Items 3 and 4 of Article 1 of the Regulations apply to the jurisdiction of cases involving military special procedures. As the case of the establishment of the Electoral Commission for Voter Qualifications in the army has the particularity of military administration, according to the provisions of Article 164 of the Civil Procedure Law, it is clear that if the party concerned refuses to accept the decision made by the Electoral Commission for Voter Qualifications, the application shall be accepted by the military court; According to the provisions of Article 174 of the Civil Procedure Law, the case of determination of ownerless property in the camp area shall be accepted by the military court where the property is located and shall be tried by the military court where the property is located.
choice of jurisdiction of civil cases in military courts
if one of the parties is a soldier or a member of a military unit and the other is a local party, the local party has the right to choose to bring a lawsuit to a military court or a local court in cases of military duty infringement, cases of military-related infringement in the camp, cases of military marriage and family, cases under exclusive jurisdiction of military personnel, and cases under special procedures, respecting the principle that the parties are not subject to any jurisdiction. Local courts not only respect the autonomy of the parties, but also facilitate the trial and execution of cases.
On the jurisdiction of military courts over civil cases
According to Article 25 of the Civil Procedure Law, a contract dispute between a local party and a soldier or a military unit shall be under the jurisdiction of a military court if the place where the contract is performed or the subject matter is located is in a military camp. During the drafting process, some comrades suggested that the scope of cases under the jurisdiction of agreement should be increased on the basis of Article 25 of the Civil Procedure Law. In particular, the revised Civil Procedure Law adopted on August 31, 212 expanded the scope of cases under the jurisdiction of agreement from contract cases to all cases of property rights and interests. However, considering the certainty of jurisdiction, especially the actual resources of military courts in trying civil cases, the Provisions have made corresponding restrictions on the jurisdiction of agreement, which is only applicable to "contract disputes occur at the place where the contract is performed or where the subject matter is located"
Exceptions to special jurisdiction
According to the principle of expediency, if there is no military court in the provincial administrative division where the parties live, or in remote areas where the traffic is very inconvenient, the local people's court may exercise jurisdiction, except for cases involving military secrets above secrets. The main reason for making this provision is that due to historical reasons, Jiangxi, Ningxia and Guizhou have not yet established grass-roots military courts, and even in provinces and cities with grass-roots military courts, there are objective realities in remote areas where it is not convenient for parties to sue. " The traffic in remote areas is very inconvenient "is determined with reference to the first paragraph of Article 156 of the newly revised Criminal Procedure Law in 212.
Fourthly, regarding the settlement of jurisdiction disputes between military courts and local people's courts
Article 36 of the Civil Procedure Law provides a legal basis for the settlement of jurisdiction disputes. Accordingly, Article 5 of the Regulations provides for the transfer of jurisdiction between military courts and local people's courts at various levels. The first paragraph of this article stipulates that if the accepting court finds that the case is not under its jurisdiction, it shall be transferred to the court with jurisdiction, and the transferred court shall accept it. Different from the transfer jurisdiction of general cases, if the local people's court of the transferred case thinks that the transferred case is not under the jurisdiction of the local people's court, it should report it to the local people's court at a higher level for coordination, rather than being designated by the local people's court at a higher level for jurisdiction. This is because military courts and local people's courts belong to two different systems, and local people's courts at higher levels have no right to designate military courts for jurisdiction. Similarly, referring to the above provisions, the local people's court decided that civil cases were under the jurisdiction of military courts.
In addition, although the military courts and local people's courts have different systems, they are all divided into three levels, and the Supreme People's Court is the * * * * between them and the higher courts. Therefore, the "Regulations" clarify that if there is a jurisdiction dispute between a military court and a local people's court, it shall be settled by both parties to the dispute through consultation; If negotiation fails, it shall be reported to their respective superior courts for negotiation and settlement; If negotiation fails, it may be submitted to the Supreme People's Court for designated jurisdiction.
V. Safeguarding the litigation rights of local parties
In addition to clarifying that military courts have jurisdiction over civil cases, the Regulations provide that: