The Supreme People's Court, People's Republic of China (PRC)
Civil adjudication
(2020) the Supreme People's Court application number 423 1
Applicant for retrial (defendant in the first instance and appellee in the second instance): Chen Ping, male,/kloc-0, born in April 1957, Han nationality, living in Jing 'an District, Shanghai, People's Republic of China (PRC).
Authorized Agent: Pan Gongbo, lawyer of Shanghai Quanya Zhibo Law Firm.
Applicants for retrial (defendants in the first instance and appellee in the second instance): Ma Ge, male, born in194113, a resident of People's Republic of China (PRC) Special Administrative Region.
Applicant for retrial (defendant in the first instance and appellee in the second instance): Chen Xin, female, born in1June 939+1February 9, Han nationality, living in Jing 'an District, Shanghai, People's Republic of China (PRC).
Applicant for retrial (defendant in the first instance and appellee in the second instance): Chen Fang, female, born on1October 28th, 1942+65438, resident of People's Republic of China (PRC) Special Administrative Region.
Applicant for retrial (defendant in the first instance and appellee in the second instance): Chen Qing, female, 1946, Han nationality, living in Jing 'an District, Shanghai, People's Republic of China (PRC).
Applicant for retrial (defendant in the first instance and appellee in the second instance): Chen Jue, female,/kloc-0, born on February 9, 947, resident of People's Republic of China (PRC) Special Administrative Region.
Applicant for retrial (defendant in the first instance and appellee in the second instance): Chen Ying, female, born on1October 30th, 1949 165438, resident of People's Republic of China (PRC) Special Administrative Region.
Applicant for retrial (defendant in the first instance and appellee in the second instance): Chen Ding, male,/kloc-0, born on February 5, 952, Han nationality, living in Jing 'an District, Shanghai, People's Republic of China (PRC).
Applicant for retrial (defendant in the first instance and appellee in the second instance): Chen Feng (Japanese name: Xiaofeng Tongkuan), male,19541born in February, 2008, Japanese citizen.
Applicant for retrial (defendant in the first instance and appellee in the second instance): Chen Zhongwei, male,/kloc-0, born on February 7, 969, resident of People's Republic of China (PRC) Special Administrative Region.
The above nine retrial applicants have the same agent ad litem: Chen Ping, male, born on April 1957, Han nationality, living in Jing 'an District, People's Republic of China (PRC).
Respondent (plaintiff of first instance and appellant of second instance): Chen Ming, male,1948+0/kloc-0, born in April, Han nationality, living in Changning District, Shanghai, People's Republic of China (PRC).
Authorized Agent: Li Chunhua, lawyer of Shanghai Xinyang Zhong Jian Zhonghui Law Firm.
Retrial applicants Chen Ping, Marco, Chen Xin, Chen Fang, Chen Qing, Chen Jue, Chen Ying, Chen Ding, Chen Feng and chen zhongwei (hereinafter referred to as Chen Ping and others) refused to accept the civil judgment of the Shanghai Higher People's Court (20 16) Hu Minzhong No.33 (hereinafter referred to as the original judgment) and applied to our court for retrial. Our college formed a collegial panel according to law to conduct the examination, and the examination has now ended.
Chen Ping and others applied to our hospital for retrial, claiming that (1) Chen Ming had participated in all the trials of (1995) Hu Yi Zhongminzi No.82 and (1996) Shanghai Gaominzhongzi No.0 135 as a third person. Neither the Shanghai No.1 Intermediate People's Court nor the Shanghai Higher People's Court confirmed the husband-and-wife relationship between Chen Qiaqun and Huang Aizhen, nor confirmed the father-son relationship between Chen Qiaqun and Chen Ming, and Chen Ming did not appeal. In the case that (1996) Shanghai GaominzhongNo. 135 has been in force for more than 20 years, Chen Ming has no right to bring a lawsuit against this case, and it is also improper for the court of first instance to accept this case. In addition, in the case that the first-instance judgment of this case has denied the relationship between Huang Aizhen and Chen Qiaqun, the judgment of the first instance made the determination that Chen Ming is the son of Chen Qiaqun in the part of "our court thinks", and substantially revised the opinion of the first-instance judgment, which adversely affected the rights and interests of Chen Ping and others and should be corrected. (2) The judgment of the original trial made that "if negotiation fails or the company or foundation fails to be established within six months from the effective date of this judgment, the relevant personnel may file another lawsuit", which went beyond the litigant's claim and violated the principle of "not suing and ignoring". In addition, it is wrong to deny the validity of testamentary succession in this case. (3) In the part of "In our opinion", the original judgment stated that "our court temporarily does not support Chen Ming's claim on the disputed property 15/39 and maintains the judgment of first instance", which is inconsistent with its own judgment and the judgment of first instance and has obvious uncertainty, and should be corrected. (4) The original judgment rejected Chen Ming's claim, which has taken effect. There is no legal basis for property preservation in this case, and it is indeed wrong for the court of first instance not to accept the application of Chen Ping and others to cancel litigation preservation. To sum up, according to the provisions of Item 2, Item 11 and Item 13 of Article 200 of the Civil Procedure Law of People's Republic of China (PRC), we request a retrial of this case.
Chen Ming said: First of all, the original judgment did not support Chen Ming's claim that the disputed property should enjoy 15/39, and did not miss or exceed the claims of the parties. Chen Ping's application for retrial lacks legal basis. Secondly, the existing facts and evidence fully prove that Huang Aizhen is Chen Qiaqun's wife and Chen Ming is Chen Qiaqun's son. What Chen Ping and others say lacks factual basis. Third, Chen Ming filed an application for property preservation according to law, and the court of first instance made a ruling on property preservation, which was not improper. To sum up, it is requested to reject the retrial application of Chen Ping and others.
Our court believes that this case is a case in which the parties apply for retrial, and it should be examined around whether the reasons for Chen Ping and others to apply for retrial are established.
(1) Whether the relevant determination of "in our opinion" in the original judgment should be corrected.
In this case, Chen Ping and others were not sentenced to bear substantive rights and obligations, and their interests in this case and other cases were not actually harmed. The text of the judgment is the conclusion made by the people's court on the litigant's claim, and the "we think" part of the judgment is the explanation made by the people's court on the basis of finding out the facts of the case, which does not constitute the content of the judgment itself. In principle, the parties may not apply for retrial because of the judgment reasons of the judgment documents. In the judgment reason part of the original judgment, the expression "Chen Qiaqun and Chen Ming are husband and wife in the old society, and Chen Ming is his son" is not a final judgment, but a fact finding, which does not necessarily lead to the judgment reason of the original judgment affecting the judgment result of another case, or the judgment results are contradictory. According to the rules of evidence in civil procedure, if Chen Ping has enough evidence to the contrary, he can still overturn the above facts in another case to avoid the unfavorable interests brought by this fact. In the "We think" part of the original judgment, "Our court temporarily does not support Chen Ming's claim to the disputed property 39/ 15 and maintains the judgment of the first instance", and does not support Chen Ming's claim to the right to distribute the disputed property. This statement is not contradictory to the final rejection of the appeal and the upholding of the original judgment.
Chen Qiaqun's disposal of property in his will did not explicitly involve the inheritance that all parties in this case can inherit. The original judgment was made according to the contents of Chen Qiaqun's will, and the parties in this case directly requested the distribution of the corresponding funds, but the conditions have not been fulfilled. It is a recognition of the legal effect of the will, a respect for Chen Qiaqun's wishes, rather than a denial of the legal effect of testamentary succession. On this premise, the original judgment made it clear that if negotiation fails or the company and foundation mentioned in Chen Qiaqun's will cannot be established, the parties concerned may file a separate lawsuit within six months from the effective date of the original judgment. This statement is an explanation of the judicial relief channels for disputes between the parties, and there is nothing wrong with it.
As mentioned above, Chen Ping and others applied for retrial that Chen Ming was the son of Chen Qiaqun, which went beyond Chen Ming's claim and the reasons that contradicted the verdict could not be established.
(2) On the issue of lifting property preservation.
The ruling on property preservation involved in the case shall be made by the court of first instance. Applying for revocation of litigation preservation does not belong to the scope of retrial review of this case. Chen Ping and others can apply to the court of first instance.
In addition, Chen Ping and others did not provide evidence to prove that the judge of the original trial was corrupt and took bribes. bending the law, they only applied for a retrial on the grounds that the expression in the part of the original judgment "in our opinion" was beneficial to Chen Ming, which did not meet the retrial situation stipulated in Item 13 of Article 200 of the Civil Procedure Law of People's Republic of China (PRC), and our court did not support it.
To sum up, Chen Ping and others' applications for retrial do not meet the retrial conditions stipulated in Item 2, Item 11 and Item 13 of Article 200 of the Civil Procedure Law of People's Republic of China (PRC). In accordance with the provisions of the first paragraph of Article 204 of the Civil Procedure Law of People's Republic of China (PRC) and the second paragraph of Article 395 of the Supreme People's Court's Interpretation of Application, our judgment is as follows:
Chen Ping, Marco, Chen Xin, Chen Fang, Chen Qing, Chen Jue, Chen Ying, Chen Ding, Chen Feng and chen zhongwei were rejected for retrial.
Presiding judge Yang Xingye
Judge Ma Dongxu.
Judge Chen Hongyu.
2002 1 1 9/month
Assistant Judge Zhang Bona
Clerk Ye Chenyang.