(1) trial preparation
Trial preparation is the preparatory work made by the people's court to ensure the smooth trial of the case before the formal substantive trial. According to the provisions of the Civil Procedure Law, the contents of pre-trial preparation include:
1. Summon the parties and notify other participants to attend the proceedings in court. The people's court shall serve the summons on the parties and the notice of appearance on other litigants three days before the court session. The summons and notice shall specify the cause of action, the time and place of the hearing, so as to ensure that the parties and other litigants are fully prepared.
2. For a case tried in public, the people's court shall announce the names of the parties, the cause of action, the time and place of the hearing 3 days before the hearing. The announcement can be posted on the bulletin board of the court, or at the place where the case is filed or other places related to the circuit trial. Its purpose is to strengthen the understanding and supervision of the news media and the public on the trial activities of the people's courts and ensure the fairness and efficiency of the trial.
3. Understand whether the parties and other participants in the proceedings appear in court and announce the court discipline. Before the formal hearing, the clerk shall find out whether the plaintiff, defendant, third party, agent ad litem, witness, expert witness and translator are present at the court. Appear in court and report to the presiding judge. At the same time, the court discipline was announced, and all participants and observers in the proceedings were informed that they must abide by the discipline.
4. During the trial, the presiding judge shall check the parties in the order of plaintiff, defendant and third party, including name, sex, age, nationality, place of origin, work unit, occupation and residence. If the party concerned is a legal person or other organization, check the names and positions of its legal representative and chief administrative officer. For agents ad litem, their qualifications and authority should be made clear. After checking, the presiding judge shall announce the cause of action, announce the list of judges and recorders, inform the parties of their litigation rights and obligations, and ask the parties whether to apply for withdrawal.
(2) court investigation
The main task of court investigation is that the judge comprehensively investigates the facts of the case in court, examines and verifies all kinds of evidence, and lays the foundation for correctly identifying the facts of the case and applying the law. According to the provisions of the Civil Procedure Law and the Supreme Court on evidence in civil proceedings, court investigation mainly includes two contents: one is the statement of the parties; The second is to produce evidence and cross-examination.
1. Statement of the parties
First, the plaintiff orally states his claim and the facts and reasons on which it is based, and then the defendant states the facts of the case and the different opinions he holds. If the defendant files a counterclaim, it shall clearly state the counterclaim and the facts and reasons on which it is based. If there is a third party in the lawsuit, the third party with independent claim shall first state the claim and the facts and reasons on which it is based, and then the third party without independent claim shall make a reply, acknowledging or denying the statements of the original and defendant.
If a party has an agent ad litem, it may make a statement or reply by the agent ad litem, or it may be supplemented by the agent ad litem after the statement or reply by the party. The judge has the right to ask the facts of the case, summarize the focus of the dispute or the focus of the court investigation, and solicit the opinions of the parties.
2. Show evidence and cross-examine
After the parties have finished their statements, the relevant evidence of the case must be presented in court and accepted by the parties for cross-examination. However, the evidence recognized and recorded by the parties in the process of evidence exchange, after being explained by the judge in court, can be used as the basis for determining the facts of the case without cross-examination in court.
According to the provisions of the Civil Procedure Law, all kinds of evidence are presented in the following order and cross-examined by the parties:
(1) witness testimony. A witness shall, at the request of the parties and with the permission of the people's court, testify in court. Before testifying, the judge shall confirm the identity of the witness, inform the witness of his rights and obligations, and require the witness to provide testimony objectively and truthfully. A witness who testifies in court shall objectively state the facts he personally feels and accept questions from the parties concerned. If the witness is deaf, he can testify through other expressions. With the permission of the people's court, witnesses who are unable to appear in court due to real difficulties may submit written testimony or audio-visual materials, or testify by using two-way audio-visual transmission technology.
A witness shall not use speculative, inferential or critical language when testifying. Judges and parties may question witnesses. In order to ensure the authenticity and objectivity of the testimony provided by witnesses, witnesses are not allowed to attend the trial; Other witnesses shall not be present when questioning witnesses. When the people's court deems it necessary, it may allow witnesses to confront each other.
(2) Documentary evidence, material evidence and audio-visual materials. Documentary evidence, physical evidence and audio-visual materials presented in court include evidence provided by the parties and evidence collected by the people's court. The people's court shall take the evidence collected by the party applying for investigation as the evidence provided by the party applying for investigation. Documentary evidence and material evidence shall be presented by bailiffs. When presenting audio-visual materials, the demonstration must be played in court, and if necessary, the recorder will appear in court to explain the recording process and situation.
When conducting cross-examination of documentary evidence, physical evidence and audio-visual materials, the parties concerned have the right to demand the original or original evidence. However, if it is really difficult to produce the original or the original, the people's court allows it to produce a copy or duplicate, or if the original or the original no longer exists, but there is evidence that the copy or duplicate is consistent with the original or the original, it may produce a copy or duplicate.
(3) Appraisal conclusion. When the parties appear in court, the appraiser or judge will read the appraisal conclusion in court and accept the questions of the parties. If the appraiser is unable to appear in court for special reasons, the judge shall read out the appraisal conclusion, and with the permission of the people's court, the appraiser may answer the questions of the parties in writing. With the permission of the court, the parties may ask questions to the appraisers who appear in court. If a party refuses to accept the appraisal conclusion, he may apply for re-appraisal, and the court shall decide whether to grant it.
(4) Inspection records. The record of the inquest shall be read by the inquirer or the judge in court. With the permission of the court, the parties may ask questions to the inspector. The parties may apply for a new inquest, and whether or not to allow it shall be decided by the court.
If the evidence cross-examined in court can be identified immediately, it shall be identified immediately; If it cannot be determined immediately, it may be determined after an adjournment.
(3) Court debate
Court debate is a litigation activity in which the parties and their agents ad litem, under the auspices of the collegiate bench, clarify their views and opinions and debate with each other according to the facts and evidence ascertained in the court investigation stage. Court debate is the most vivid and concentrated embodiment of the principle of debate. In view of the facts and evidence examined in the court investigation stage, the parties and their agents ad litem have oral debates with each other around the focus of the case dispute, and strive for the collegial panel to make a judgment in favor of themselves. At the same time, through the debate, the judge can grasp the key points of the case, which is helpful to find out the facts of the case and distinguish right from wrong.
According to Article 127 of the Civil Procedure Law, the court debates are conducted in the following order:
1. The plaintiff and his agent ad litem spoke. When both the plaintiff and the agent ad litem appear in court, the plaintiff usually speaks first and the agent ad litem supplements. The main purpose of the speech is to demonstrate one's own views and refute the facts and reasons put forward by the defendant in the court investigation, rather than repeating the contents of the statement he made in the court investigation stage.
2. The defendant and his agent ad litem reply. The defense of the defendant and his agent ad litem is not a simple repetition of his statement and defense in the court investigation stage, but an opinion and defense against the plaintiff and his agent ad litem, which proves that the plaintiff's claim is illegal and the court should not support it.
3. The third person and his agent ad litem speak or reply. The third party with independent claim thinks that both the plaintiff and the defendant have violated their legitimate rights and interests. Therefore, his speech or defense is to refute the facts, reasons and requests advocated by the plaintiff and the defendant, thus proving that his legitimate rights and interests should be protected.
4. Debate with each other. The judge should guide the parties to debate around the focus of the dispute. The judge shall stop the parties and their agents ad litem from speaking irrelevant to the case or repeating facts that have not been recognized by the court. When necessary, the presiding judge may, according to the circumstances of the case, limit the time for the parties and their agents ad litem to express their opinions each time. If the parties request to continue the debate after the end of one round of debate, they may hold the next round of debate, but they may not repeat the contents of the first round of debate.
After the court debate, if the facts of the case are clear, the presiding judge shall ask the parties whether they are willing to mediate. If the parties are willing to mediate, they can mediate in court or after recess. If both parties reach an agreement through mediation, they shall sign and seal the mediation book. The people's court shall make a conciliation statement according to the conciliation agreement reached by both parties and serve it on both parties. If the two parties perform the agreement immediately after reaching it, and do not require the preparation of a conciliation statement, it shall be recorded in the written record, which shall become legally effective after being signed or sealed by both parties, members of the collegial panel and the clerk. If mediation fails, the collegial panel shall make a judgment in time.
(4) case review and judgment.
This is the last stage of the trial, and it is the stage in which the collegial panel distinguishes right from wrong, clarifies responsibilities, makes judgments, announces the judgment results and resolves civil disputes between the parties according to the facts and evidence that have been ascertained.
1. collegial panel review
After the court debate, if mediation fails, the collegial panel shall adjourn and enter the deliberation room for deliberation. When deliberating, the collegial panel shall, according to the court investigation and court debate, identify the nature of the case, identify the facts of the case, distinguish right from wrong, correctly apply the law, and finally handle the case. The collegial panel deliberates cases, presided over by the presiding judge, in secret. When the collegial panel disagrees, the principle that the minority is subordinate to the majority shall be implemented, but the minority opinions shall be truthfully recorded in the record. The record of appraisal shall be made by the clerk, signed or sealed by the members of the collegial panel and the clerk, and kept on file for future reference, and shall not be made public. After the deliberation, a written judgment shall be made and signed by the members of the collegial panel.
Announce a judgment
The contents of the judgment include: the facts ascertained, the applicable law, the results and reasons of the judgment, the burden of litigation costs, the right of appeal of the parties, the time limit for appeal and the court of appeal.
There are two ways to pronounce sentence: one is to pronounce sentence in court. That is, after deliberation by the collegial panel, the presiding judge will announce the continuation of the court session and read out the judgment. After the verdict is pronounced, the verdict will be delivered to the relevant personnel within 10 days. The other is conventional sentencing. That is, if the sentence cannot be pronounced in court, another date will be set for sentencing. After regular sentencing, a written judgment shall be issued immediately.
The verdict will be made public whether the case is heard in public or not. When a divorce judgment is pronounced, the parties concerned shall be informed not to get married separately before the judgment takes effect.
Third, court records.
The court record is the clerk's record of the trial activities. When making transcripts of the trial, the whole process of the trial should be recorded objectively, truly and comprehensively in accordance with the order of the various stages of the trial, and signed by the members of the collegial panel and the clerk. The court record shall be read by the clerk, and the parties and other participants in the proceedings may also be notified to read it in court or within 5 days. After reading or reading the court record, if the parties and other participants in the proceedings think that the record is correct, they shall sign or seal it; Refuse to sign or seal, record the situation and attach a volume; If you think there are omissions or errors in your statement record and apply for correction, you can make corrections on the back of the record or on another page.
Fourth, the conclusion period
Article 135 of the Civil Procedure Law stipulates the time limit for concluding ordinary procedures as follows: "A case tried by a people's court through ordinary procedures shall be concluded within six months from the date of filing the case. If there are special circumstances that need to be extended, it can be extended for 6 months with the approval of the president of our hospital; If it needs to be extended, it shall be reported to the higher people's court for approval. " Because the Civil Procedure Law does not specify the time limit that needs to be extended again and submitted to the Higher People's Court for approval, theoretically speaking, there is no maximum time limit for applying ordinary procedures to hear civil cases.
The trial period of a civil case shall be counted from the day after the case is filed. The following periods are not included in the trial period: first, the period of public announcement and appraisal of civil cases; Second, the time limit for hearing the jurisdictional objections raised by the parties and handling jurisdictional disputes between courts; Third, during the suspension of litigation.
The date when the people's court announces the judgment, the ruling or the conciliation statement delivered to the last party shall be the closing time. If it is served by lien, the deadline shall be the date when the judgment document is left at the addressee's residence; If the announcement is served, the date of publication of the announcement shall be the deadline; If it is delivered by post, the deadline shall be the posting date; If it is served through the relevant units, the date when the parties sign for it on the service receipt shall be the closing time. If it is necessary to entrust a judgment or service, the people's court entrusted with the judgment or service shall serve the judgment, ruling and conciliation statement on the entrusted people's court before the expiration of the trial period. The entrusted people's court shall serve it within 7 days after receiving the power of attorney.
Extended data:
Hearing in court is the most basic and important stage in the ordinary procedure, and it is the most concentrated and vivid embodiment of the parties exercising their right to appeal and the people's court exercising their judicial power, which is of great significance to the people's court correctly hearing civil cases.
1. The trial of a case can ensure that the people's court correctly exercises its judicial power. Through trial, judges objectively identify the facts of civil cases, comprehensively examine evidence, distinguish right from wrong, and handle civil cases fairly in accordance with the provisions of the Civil Procedure Law, thus realizing the trial function of the people's courts.
2. It is conducive to the effective supervision of judicial activities. Opening a court session puts the trial process of a case under the supervision of the masses, which increases the transparency of trial activities and is conducive to ensuring the fairness of handling cases.
3. It is conducive to protecting the litigation rights and substantive rights of the parties. The civil procedure law fully stipulates the litigation rights of the parties in the trial and the way to exercise the litigation rights. The trial is conducive to the parties fully exercising their litigation rights, consciously fulfilling their litigation obligations, ensuring the smooth progress of trial activities, and ultimately protecting the civil substantive rights of the parties.
4 is conducive to give full play to the educational role of the trial, expand the legal publicity effect.
References:
People's Republic of China (PRC) People's Court Rules-Baidu Encyclopedia