First of all, we must clarify the conditions for prosecution. According to the provisions of China's Civil Procedure Law, the conditions that a party should meet when suing are as follows: (1) The plaintiff is a citizen, legal person and other organization with direct interest in the case; (2) Having a clear defendant; (3) Having specific requests, facts and reasons; (4) Belonging to the scope of civil litigation accepted by the people's court and the jurisdiction of the sued people's court. Otherwise, the people's court will not accept it.
Second, when it is considered that the conditions for prosecution are met, a complaint (indictment) should be written. A complaint is a kind of litigation document that the plaintiff requests to the people's court, commonly known as "form paper". The plaintiff's complaint can be written or oral, but the principle is written. At present, China's judicial organs and legal service departments have special litigation documents with fixed formats, which can be written according to the requirements of norms. However, when writing an indictment, we should pay attention to two points: first, state our opinions (see what to sue); The second is to clarify the facts and reasons of litigation according to the litigation request. The facts should be objective and true, and the reasons should be sufficient. As far as this case is concerned, the plaintiff's claim is not clearly written, and the reasons for supporting his claim are not sufficient, which will bring "future troubles" to his later litigation process.
As far as the defendant is concerned, the prosecution of the plaintiff should grasp the following points:
First of all, we can't ignore. In reality, some defendants feel that the plaintiff is unreasonable, or they know that it is unreasonable and do not respond. Although it may be a way to exercise your rights by not replying, it also means that you have lost an opportunity to defend yourself and let the judge fully understand the case. This will directly affect its own litigation effect.
Second, we should treat it correctly. First, look at whether the other party is qualified or not, and then carefully analyze and study the claims, facts and reasons in the complaint, and put forward targeted answers.
Third, write a reply. A defense is a litigation document in which the defendant accuses the plaintiff, refutes the other party according to facts, evidence and legal provisions, and puts forward his own opinions and demands. The content of the defense is mainly aimed at analyzing and expounding whether the parties in the plaintiff's complaint are qualified, whether the facts listed are true, whether the claim is supported by evidence, and whether the claim is legal, so as to achieve strong pertinence, strict logic, clear organization, sufficient evidence and strong arguments.
In this case, after receiving the complaint, the defendant made a serious analysis with the lawyer, focusing on the following two major issues:
First, insist that the agreement is valid.
First of all, the agreement between the plaintiff and the defendant is legal in procedure, and there is no illegal problem. The plaintiff and the defendant first signed an agreement in the plaintiff's home, and then signed a new agreement in the defendant's home. Compared with the original agreement, this "new" agreement is not different in essence, but different in form, and has been partially fulfilled. Since Rizo, the plaintiff, recognized the first agreement and accepted the partial performance of the second agreement, it is the recognition and ratification of the second agreement (the unauthorized agency will take effect after being ratified by the agent). Therefore, although the second agreement was not signed by Zhang and signed by Wang, it did not affect the legal effect of the agreement, and naturally there was no problem of illegal agreement procedures.
Secondly, there is no obvious unfairness. Article 72 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (Trial) stipulates: "If one party takes advantage of its own advantages or the other party's lack of experience, the rights and obligations of both parties obviously violate the principle of fairness and equal remuneration, it can be considered as obviously unfair." As far as inheritance cases are concerned, whether it is obviously unfair or not can not be judged only by the amount of inheritance, because inheritance is a very special legal issue. In the legal relationship of inheritance, there are not only property relations, but also personal relations. That is, the heir is a person with a certain kinship and a certain affection and emotional relationship. Although the defendant only gave the plaintiff an inheritance of 6,543,800 yuan, he also promised to give the plaintiff 2,500 yuan of "alimony" every year, which is an extra-legal obligation. In addition, the property paid by the defendant to the plaintiff is limited in the agreement, while the affection between the plaintiff and the defendant and between the plaintiff and the nephew is infinite. This affection and love cannot be measured by money. Therefore, it is biased to judge whether obviously unfair is based on the amount of inheritance.
Third, the size of the bed has nothing to do with whether it is actually inherited. Because the plaintiff considered many reasons and gave up the right of inheritance, which is also allowed by law. Abandoning inheritance itself is a way for the plaintiff to exercise the right of inheritance. Furthermore, the inheritance right of the bed only refers to the property right of the bed itself, and the management right of the bed are two different concepts. The plaintiff regards the bed as the right to use for decades, and the future income as inherited property, which has no legal basis.
Second, even if the two parties do not perform according to the agreement reached on inheritance, there is no legal basis for the amount of inheritance requested by the plaintiff.
According to the law, the plaintiff's daughter's estate is inherited by her legal heir, but the decedent's estate must first be determined according to law. To correctly identify the decedent's estate, we must first divide the family property or the husband and wife property according to law.
First of all, the property of the deceased son must be separated from the family property. Of course, its specific quantity can be determined according to the value it creates.
Secondly, as the main creator of family property, the defendant's property must also be divided according to law. In other words, nearly half of the property owned by this family belongs to the defendant.
Third, the part that does not belong to the deceased's estate must be separated from the property owned by * * *. These properties include: (1) a stall bed located on the third floor of a wholesale market in Shenyang, which was purchased by five relatives of the defendant on May 65438+ 1997. At that time, it was considered that the defendant's name was used for the convenience of handling various formalities. In this regard, there are the original documents of the investors at that time and the details of the distribution according to the proportion of capital contribution over the years as evidence. If the plaintiff can seek truth from facts, he will not deny the fact that the real owner of the bed is the defendant's five relatives, not the defendant Hu. (2) The defendant, the defendant's eldest brother and the defendant's parents bought three Beijing-style bungalows in a certain city in Lingnan. At that time, it was only because the defendant's parents were not registered in Linghai and could not apply for house photos, so they applied for house photos in the name of the defendant. (3) The newly purchased house was purchased by the defendant and the decedent for the son of the defendant before his death, based on the real estate license. Although the house property right certificate was handled during the litigation, it was only a confirmation of the original facts, which was an administrative act of house ownership and did not belong to the adjustment scope of this case. In other words, if the plaintiff has any objection to the property, he can only file an administrative lawsuit again.
In addition, the decedent and defendant * * * still owed more than 40,000 yuan before their death, so they should repay their property with * * * before inheriting the estate.
How to fight
The key to a lawsuit is to fight. And how to "fight" well and "fight" to win is very particular. Especially in today's complex realistic environment, it is more artistic. So, how can we play well?
First of all, you have to hire a good lawyer. If the case is simple and you can make it clear and reasonable, there is no need to hire a lawyer. However, some cases are often complicated, and the parties themselves lack legal knowledge, litigation skills and experience, so it is very necessary to hire a lawyer. Lawyers are professionals who are proficient in law. Compared with others, they have obvious advantages of comprehensive legal knowledge and rich litigation experience. Therefore, hiring a lawyer has become the first choice for people to go to court. However, a "good" lawyer must be hired. Although lawyers are called lawyers now, many people are called "Mr. Dong Guo". A good lawyer can help you balance facts, evidence, laws and procedures, and ensure that the lawsuit you should win can be won.
Second, close the evidence. The phrase "litigating is engaging in relations" circulating in the society now objectively reflects the social reality, but it is not entirely an objective and true portrayal of the judicial situation. Legally speaking, "litigation is only evidence". Without the support of evidence, even if there is a relationship, it can only win for a while, but not in the end. Therefore, whether the parties can close the evidence is very important to the success or failure of the lawsuit. However, it is often impossible for the parties themselves to collect and use evidence comprehensively. At this time, the role of lawyers should not be underestimated, and this case is the best example. In this case, lawyers attach great importance to the collection and application of evidence in the defense stage. According to the law, "whoever advocates, who gives evidence" is the basic principle of the burden of proof in civil litigation. Therefore, unless the law stipulates that the burden of proof is reversed, every claim of the parties must be supported by corresponding evidence. Therefore, lawyers should proceed from the facts of the case, let the parties provide relevant evidence, or guide the parties to collect relevant evidence. For example, in this case, the parties said that he and his brother bought a house for their parents. At that time, because my parents were not registered in this city, they could not handle the house photos, and they went through the transfer procedures in their names. Therefore, the lawyer asked the parties to find the department that handled the house photos at that time and confirm this fact. It is important to collect and use evidence, but it is more important to preserve it. Because with the passage of time, some evidence is often difficult to collect, so the parties should pay attention to the preservation of evidence in real life. Many people often think that now that things have been done, it is not important whether to save relevant evidence. In fact, this is a wrong understanding. In this case, the house purchased by the defendant for his parents and the bed stall in a wholesale market in Shenyang are all owned by his relatives, and all of them have the original records of the parties' investment and dividends over the years. This provides strong evidence support for the proposition.
How to win?
The first is the method of "fighting" and the method of "fighting". Litigation is actually like a military war. To win the war, we must rely on modern weapons and advanced technical means, and at the same time have corresponding strategies and tactics. Litigation is "fighting" the law, and "fighting" the law also requires strategy and tactics. If you want to win, you have to use it enough, use it well, and use it alive. Close the law and lay the foundation for the final victory of the lawsuit.
Law can be divided into substantive law and procedural law.
In terms of substantive law, there are mainly People's Republic of China (PRC) Inheritance Law, General Principles of People's Republic of China (PRC) Civil Law, Marriage Law of the People's Republic of China and the Supreme People's Court's judicial interpretation on the application of inheritance law. Because there are many types of inheritance cases, the legal basis of different cases is different. Therefore, the process of litigation is the process of "finding" the law, and the parties must "find" the corresponding legal basis for the specific case. As far as this case is concerned, we must first determine what is "inheritance", that is to say, the family * * * has property or the husband and wife * * * must divide the property first, and the rest is "inheritance"; Then, determine-who has the right to inherit? In this case, the "person" who has the right to inherit the estate of the deceased includes the spouse, parents and son of the deceased; Finally, divide the inheritance according to law.
As far as procedural law is concerned, it is mainly the Civil Procedure Law of People's Republic of China (PRC) and the relevant judicial interpretations of the Supreme People's Court. In this case, the plaintiff only listed Hu as the defendant, but not the son of the deceased. According to the law, the son of the decedent, as the first heir, has the right to inherit the mother's inheritance. Therefore, the parties should take the initiative to request the people's court to add the son of the decedent as the third person with independent claim in this case; Or the son of the decedent took the initiative to participate in the lawsuit as the plaintiff. There is no other way. In addition, the defendant claimed that the bed stall on the third floor of a wholesale market in Shenyang was purchased by five relatives of the defendant on May 1997+06; Three Beijing-style bungalows located in a building in Lingnan, a city, were purchased by the defendant, his eldest brother, the defendant's parents and others for their parents. For these two points, because outsiders claim rights, as a people's court, they should either add interested parties as a third party to participate in the litigation, analyze the property first and then inherit it; Or deal with the disputed property in this case separately. The parties shall request the people's court to handle the case according to the actual situation of the case.
The second is to master the trial skills. In this case, because the original defendant had an agreement, when signing the second agreement, the defendant tore up the original of the first agreement on the spot, but the defendant had a copy of this agreement. The first agreement was signed by the plaintiff and the second agreement was signed by her husband. Now, on this basis, the procedure is illegal. Therefore, it is very important to confirm the facts in this part. Because the plaintiff deliberately avoided this fact, he can't be expected to come up with this original agreement; We can only use the trial to let the plaintiff admit this fact first, and then the defendant will take out the copy in his hand, so that the plaintiff will not be in a passive position because of denying this fact. Of course, the skill of trial is not limited to this, but a very complex and comprehensive art.
court decision
After trial, the court of first instance held that: "Although the original defendant signed an inheritance agreement, the amount of Wang's inheritance was not stipulated in the agreement, and the plaintiff misunderstood this and could seek judicial relief. The right of inheritance is a legal right, which is not produced according to the agreement of the parties. Although after the inheritance begins, the heirs can negotiate to divide the inheritance, but if the negotiation fails, they will not lose their inheritance rights according to law. " Therefore, the court supported the plaintiff's claim and made a judgment according to the legal inheritance: the defendant Hu paid the second plaintiff 152637.50 yuan. For a stall bed on the third floor of a wholesale market in Shenyang and three Beijing-style bungalows located in a certain city in Lingnan, the court adopted the lawyer's opinion and did not think that husband and wife were the same property.
Lawyer's review
The author believes that the agreement reached between the original defendants is effective. It is wrong for the people's court to change the inheritance agreement that has been reached and actually partially fulfilled in accordance with the statutory inheritance.
First of all, the agreement between the plaintiff and the defendant is legal in procedure, and there is no illegal problem. The plaintiff and the defendant first signed an agreement in the plaintiff's home, and then signed a new agreement in the defendant's home. Compared with the original agreement, this "new" agreement is not different in essence, but in a different form (split into two) and has been partially fulfilled. Since Rizo, the plaintiff, recognized the first agreement and accepted the partial performance of the second agreement, it is the recognition and ratification of the second agreement (the unauthorized agency will take effect after being ratified by the agent). Therefore, although Zhang did not sign the second agreement and Wang signed it, it does not affect the legal effect of the agreement. Naturally, there is no problem that the protocol procedure is illegal.
Secondly, there is no obvious unfairness. Article 72 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (for Trial Implementation) stipulates: "If one party takes advantage of its own advantages or the other party has no experience, which obviously violates the principle of fairness and equal compensation, it can be considered as obviously unfair." As far as inheritance cases are concerned, whether it is obviously unfair or not can only be judged by the amount of inheritance. Because inheritance is a very special legal challenge, in the legal relationship of inheritance, there are not only property relations, but also personal relations, that is, the heir is a person with certain kinship and certain affection and emotional relations. Although the defendant only gave the plaintiff an inheritance of 6,543,800 yuan, he also promised to give the plaintiff 2,500 yuan of "alimony" every year, which is an extra-legal obligation. China's "Inheritance Law" clearly stipulates: "A widowed daughter-in-law and son-in-law who have the main obligation to support their in-laws and in-laws are the legal heirs in the first order." In other words, the widowed daughter-in-law or son-in-law has fulfilled her main obligation to support her in-laws. Although there is no blood relationship between them, this behavior conforms to the traditional virtues of the Chinese nation and is worth promoting. Therefore, this practice has been affirmed in law and given the status of the first heir. The property paid by the defendant to the plaintiff is limited in the agreement, while the affection and affection between the plaintiff and the defendant and between the plaintiff and his nephew are infinite and cannot be measured by money. Therefore, it is biased to judge whether obviously unfair is based on the amount of inheritance. Third, there is no misunderstanding, even if there is misunderstanding, it is not a big misunderstanding. The court of first instance denied the legal effect of the inheritance agreement on the grounds that "the amount of the inheritance agreement is unclear, and the plaintiff has misunderstood it and can seek judicial relief", which has no legal basis. According to Article 59 of the General Principles of the Civil Law, it can only be changed or revoked if there is a major misunderstanding. According to Article 7 1 of the Supreme People's Court's Opinions on Execution (General Principles of People's Republic of China (PRC) Civil Law), the so-called major misunderstanding refers to the behavior that the actor has a wrong understanding of the nature of the behavior, the other party, the variety, quality, specification and quantity of the subject matter, which makes the consequences of the behavior go against his own will and causes great losses. Judging from the facts of this case, there is neither misunderstanding nor major misunderstanding between the parties. According to the agreement, the inheritance was 6,543,800 yuan, but the defendant paid 2,500 yuan to each plaintiff every year until his death, and when the two plaintiffs died was uncertain. Therefore, the amount of "alimony" finally paid by the defendant is also uncertain. Therefore, the court decided to pay nearly 654.38 million yuan to each plaintiff, which is hard to say reasonable. What's more, the parties have reached an inheritance agreement and actually fulfilled some of the agreements. There is no such thing as "no agreement" in the judgment. What is the significance of this kind of judicial relief? It is not advisable to interfere with the autonomy of the parties in this way of "the law is merciless".
Finally, the length of bed use has nothing to do with whether it is actually inherited. Because the right of inheritance is the right of citizens to obtain the legal property left by individuals when the decedent dies. After the decedent's death, his spouse's use of * * * has nothing to do with the income and inheritance generated by the management right of the property, and may be generated in the future. The right to inherit the bed only refers to the property right of the bed itself, and the right to operate the bed are two different concepts. Obviously, there is no legal basis for the plaintiff to regard the bed as the right to use for decades and the income that may be obtained in the future as inheritance property. On the other hand, considering various reasons, including "emotional" factors, the plaintiff's abandonment of inheritance is also allowed by law. Abandoning the inheritance of other property itself is a way for the plaintiff to exercise the right of inheritance. What is the need for the court to interfere with the rights already exercised by others? What is the significance of maintaining a stable social life relationship? With the development and perfection of the market economy, how to deal with the relationship between the judicial power of the court and the "autonomy of the parties" is still a problem worthy of serious consideration by the judicial organs in China.
Lawyer reminds
Because of the particularity of inheritance litigation, that is, the relationship between "emotion" and "law", we should not only consider whether to fight this lawsuit before prosecution, but also make clear the scope of "inheritance" when starting the litigation procedure, and we should not judge the amount of inheritance only by our own understanding or even speculation. Otherwise, the lawsuit wins, the money loses, and the feelings are gone. You can say that you lost your wife and your soldiers.