1. Fixing evidence and preparing evidence
1. Identity information
To prosecute in court, you must first know the identity information of the defendant. Personal information generally includes ID card, temporary residence permit or residence permit, household register, birth certificate, kinship certificate, and residence certificate. Enterprises or other organizations generally include copies of photos of corporate executives with official seals, proof of identity of the legal representative, identity information of the legal representative and basic information of the enterprise.
2. Evidence proving legal relationships
Generally include contracts, agreements, IOUs, IOUs, marriage certificates, delivery notes and other electronic evidence.
3. Supporting evidence
Such as bank transfer vouchers, invoices, house ownership certificates, motor vehicle registration certificates, etc.
Note:
All evidence is prepared according to the number of copies of the indictment. Audio and video evidence needs to be burned on a CD and abridged into a written version. (Arrange in chronological order, by category, indicate the page number, and list the evidence)
Second, write the complaint
(1) The complaint should be submitted to the court and Number of defendants Number of court filing copies. Principles of Defendant 1.
(2) How to write a complaint?
1. Plaintiff’s identity information: individual: name, gender, age, ethnicity, occupation, work unit, address and contact information, name and address of legal person or other organization, legal representative or principal person in charge Name, position and contact information;
2. Defendant’s identity information: name, gender, ID number, address and other information, name, address and other information of legal person or other organization;
3. Litigation claims; in order to prosecute, what are the requirements for the defendant? How to do it? .
4. Facts and reasons: Why the defendant requested or why he did this, everything serves the litigation claims.
5. List of evidence: Usually the court will ask you to provide a list of evidence in order to understand the basic situation of the case.
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The second step is to file a lawsuit in the competent court.
1. According to legal provisions, first check whether it is exclusive jurisdiction. If not, see if there is an agreement. If there is no agreement, it will usually be in the court where the defendant is located. The location of the defendant includes the place of household registration (the address on the ID card) and the place where he has lived for more than one year, that is, his usual place of residence. (Except for medical treatment)
2. Under special circumstances, either the plaintiff's court or the defendant's court can do so, such as sales and loan contract disputes.
Note:
Generally, it can be solved by grasping the above situation.
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The third step: Court acceptance.
1. According to the provisions of the case registration system, those who can file the case on the spot will be accepted on the spot. Those who cannot file the case on the spot will be registered first, and supplementary materials will be notified at one time.
2. If the legal conditions are met, the case should be filed within 7 days. If the application does not meet the statutory conditions, it will be ruled not to be accepted within 7 days. After the case is accepted, the legal fees must be paid within 7 days, otherwise the case will be deemed to be automatically withdrawn.
3. If the case requires property preservation, you can submit a property preservation application and a bank guarantee when filing the case, and pay preservation fees in accordance with the law.
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Step 4: Serve the summons and a copy of the complaint.
1. Mediation is very popular recently. Generally the court requires mediation first. If mediation fails, it will turn into litigation. The mediation date is 30 days.
2. Generally, after a case is filed without mediation, it will take about 15 to 2 months to file a lawsuit, and the defendant will be sent to the court to get a summons. If the defendant does not go, he will choose to mail, hold, or send electronically.
3. If the above cannot be delivered, it must be delivered by public announcement, or the whereabouts of the recipient are unknown, or the delivery cannot be made by other means. It shall be deemed delivered 30 days from the date of announcement. A court date was also set.
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Step 5: Inform the plaintiff of the court date.
1. After the plaintiff knows the court date, he must go, otherwise the lawsuit may be dismissed; if the defendant does not receive it, he will be tried in absentia, which means he has given up his right to reply.
2. Notify the parties by summons three days before the hearing, and notify other litigants by way of notice. Three days before the hearing, the names of the parties, the cause of the case, and the time and place of the hearing will be announced.
A copy of the complaint shall be served to the defendant within 3.5 days. The defendant shall file a defense within 15 days and serve a copy of the defense to the plaintiff within 5 days. The content of the defense must be based on the facts, reasons and evidence presented by the complainant, focus on the key points for defense and rebuttal, and submit relevant evidence.
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Step 6: Conduct the test:
(1) Verify the identity information of the parties:
The plaintiff sat At the table, the defendant sat in the dock. Be sure to see clearly. The clerk verifies the identity information of both parties, including work unit, position, current address and other information. Generally, after the clerk verifies the information, he will signal the judge to open the court.
(2) Court investigation:
1. The plaintiff is generally allowed to clarify the claim and briefly state the facts and reasons. At this time, if you want to change the claim, you must change the claim in time.
2. The defendant commented on the plaintiff’s claim and stated the facts and reasons.
3. The court inquires the plaintiff, defendant or third party about the facts of the case based on the circumstances of the case.
(3) Cross-examination of evidence
1. The plaintiff listed the evidence one by one to prove his claim. The defendant made cross-examination opinions on the evidence presented by the plaintiff, and a third party conducted cross-examination.
2. The defendant presents evidence, the plaintiff issues cross-examination opinions, and a third party conducts cross-examination.
3. When the third party presents evidence, the plaintiff puts forward cross-examination opinions and the defendant puts forward cross-examination opinions.
Note:
1. The court investigation shall be conducted in the order of the plaintiff, defendant, and third party; witnesses shall appear in court to testify (if the witness cannot appear in court, he may submit a written statement approved by the court, It shall be read out by the court; the transcript of the questioning of witnesses by a foreign court entrusted by the Court of Appeal shall be read out in court.) With the permission of the presiding judge, the parties and their agents ad litem have the right to ask questions of the witnesses, and the witnesses shall answer truthfully.
2. Before the end of the court investigation, the presiding judge or the sole judge shall summarize the facts discovered by the court investigation and the issues disputed by the parties, and ask the parties, third parties, and litigation agents whether they have any opinions and make final statements.
3. If, after deliberation, it is deemed necessary to continue to provide evidence or carry out appraisal and inspection work, the appraisal can be conducted after the next court session; if it is deemed that the court investigation has failed to find out the relevant circumstances of the case, the court may decide to hold another hearing. .
4. The presiding judge or sole judge shall summarize the current court session, point out the evidence that has been confirmed in this court session, and indicate the focus of the investigation for the next court session. If it is believed that the facts of the case have been ascertained and the necessary evidence has been prepared, the court investigation can be declared over and the court debate stage can be entered.
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Step Seven: Court Debate
1. The parties and their attorneys debate, and finally argue with each other.
2. If mediation can be carried out before the judgment, mediation can also be carried out; if mediation fails, the judgment shall be made in a timely manner.
3. The presiding judge shall solicit the final opinions of all parties in the order of the plaintiff, defendant, and third party.
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Step 8: Court review
After the court debate, the presiding judge adjourned the hearing, and both parties signed the court transcript. When reading the transcript, they only need to see whether what they said was recorded or whether the meaning expressed was consistent. Each page needs to be signed and hand stamped, and the last page needs to be signed and dated.
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Step 9: Issue the judgment.
1. The People's Court shall publicly pronounce judgments on cases that are heard in public or not in public. If the judgment is pronounced in court, the judgment shall be delivered within 10 days; if the judgment is pronounced on a scheduled basis, the written judgment shall be issued immediately after the judgment is pronounced.
2. When the verdict is announced, the parties must be informed of their right to appeal, the deadline for appeal, and the court of appeal. A special situation is a divorce case.
When the court of first instance pronounces a divorce judgment, it must inform the parties that they may not get married again before the judgment becomes legally effective. The appeal period is 15 days after receipt of the judgment, or 10 days if the decision is made.
Note:
1. Generally, the trial period for cases subject to simplified procedures is 3 months. If the problem cannot be solved within 3 months, the probation period will be 6 months.
2. Cases tried by the People's Court using ordinary procedures shall be concluded within 6 months from the date of filing the case. If there are special circumstances that require an extension, it may be extended for 6 months with the approval of the president of the court; if an extension is necessary, it must be reported to the superior people's court for approval.
3. If neither party appeals, the first-instance judgment shall take effect. If the defendant fails to fulfill the effective judgment, he may apply to the court for compulsory execution.
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Step 10: Appeal
1. The appeal petition should be submitted according to the number of defendants in the first instance (the content of the appeal petition should include the names of the parties, legal persons and their statutory The name of the representative or other organization and its principal person in charge; the name, case number and cause of the case of the original People's Court; the request and reasons for the appeal) and a copy of the judgment or ruling, and the payment of litigation fees.
2. The parties may appeal directly to the second instance or through the first instance People’s Court. In fact, they mostly appeal through the court of first instance.
3. The People's Court shall conclude appeal cases against the judgment within 3 months from the date of filing the case. If there are special circumstances that require an extension, it must be approved by the president of the hospital.
The people's court shall make a final ruling within 30 days from the date of filing of the second instance case.
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Step 11: Apply for compulsory execution
1. If the defendant fails to fulfill the effective judgment, the plaintiff may apply to the People's Court for compulsory execution. To apply for enforcement, you need to provide an application for enforcement, proof of validity, identity information and bank account number. If there is a second instance, the judgment of the second instance is required.
2. Generally, after the case is filed, you can check who the execution judge is for about 15 days, and then communicate with him about the execution.
3. The people's court shall generally complete the execution within 6 months from the date of receipt of the execution application. If enforcement is not carried out within 6 months, the person applying for enforcement may apply to the people's court at the next higher level for enforcement, or may apply to the local court for supervision. After review, the superior people's court may order the original people's court to implement within a certain period of time, or may decide to implement on its own or instruct other people's courts to implement.
4. To terminate this execution, the conditions stipulated by law must be met at the same time, otherwise the termination procedure cannot be initiated.
Note:
1. Before terminating this execution procedure, the People’s Court shall also inform the applicant of the execution status of the case, the property investigation measures taken, the property of the person subject to execution, the termination information such as the basis and legal consequences of this execution procedure, and listen to their opinions on terminating this execution procedure. The People's Court shall record the opinions of the person applying for execution.
2. Ending this enforcement procedure does not mean that the court will no longer enforce your case, nor does it mean that the debtor does not need to repay. After the execution procedure ends, the person subject to execution shall continue to perform the obligations specified in the effective legal documents. If the person subject to execution completes the performance voluntarily, the party concerned shall promptly notify the enforcement court. After completing this execution process.
3. If the person applying for execution finds that the person subject to execution has property available for execution, he may apply to the execution court to resume execution. The application for resumption of execution is not subject to the limitation period of the application for execution. If the enforcement court verifies that it is true, execution shall be resumed.
4. Within five years after the end of this execution procedure, the executing court shall inquire about the property status of the person subject to execution through the online execution monitoring system every six months, and notify the applicant of the inquiry results. If the conditions for resumption of execution are met, the enforcement court shall resume execution in a timely manner.
5. After the completion of this execution procedure, if it is found that the person subject to execution has property available for execution. If execution measures are not taken immediately, the property may be transferred, concealed, sold, or damaged, the person applying for execution shall Upon application or ex officio, the enforcement court may immediately take control measures such as sealing, detaining, freezing, etc.
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