First, the background of the "Regulations"
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 national defense interests and military interests and the legitimate rights and interests of servicemen and their families according to law, and it is also an important aspect for the people's courts to serve the overall situation and the people's justice. Fair and timely handling of civil cases involving the military 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 rights protection, and issued a series of judicial interpretations or guidance documents on military-related cases, covering criminal and civil trials and involving the improvement of the trial system and working mechanism.
Since the mid-1980s, in order to make up for the shortage of military expenditure, the whole army began to engage in production and business activities, and various military-related economic disputes occurred one after another. 1988 in may, the PLA military court submitted a request for instructions on authorizing military courts to accept economic, civil and administrative cases to our hospital, which was formally approved by the judicial Committee of our hospital after discussion. Military courts can conduct pilot trials of economic disputes in which both sides are soldiers and units. 1In March, 1989, the PLA Military Court issued the Notice on the Trial of Economic Disputes by Military Courts, and carried out pilot work in some grass-roots military courts. After three years' trial, the military court tried more than 90 cases of economic disputes in the first instance, and the object of the lawsuit was160,000 yuan, which resolved some contradictions in military economic disputes. Due to the increasing number of cases of economic disputes in the military, the PLA Military Court reported to our hospital in August 1992 "Request for Instructions on the Trial of Economic Disputes by Military Courts", suggesting that economic disputes with both sides in the military should be tried by military courts at all levels on a trial basis. In the same year, on October 4th, 65438/KLOC-0, the Reply on the Trial of Military Economic Disputes by Military Courts (hereinafter referred to as "Reply") stipulated: "It is agreed that economic disputes in which both parties are internal units of the military will continue to be accepted by military courts."
In view of the sharp increase in military civil cases such as marriage and family, declaration of missing or death of military personnel, ordering of weapons and equipment, transfer of military property, loans between military personnel, compensation for personal or property damage, and national defense patents, in order to properly hear military civil cases and protect the national defense interests and the legitimate rights and interests of military families according to law, on June 26, 2006, our hospital issued the Reply on the Trial of Civil Cases by Military Courts (hereinafter referred to as 200/KL) "First, according to the spirit stipulated in the first paragraph of Article 37 of the Civil Procedure Law, both parties to a case tried by a military court are active servicemen and retired cadres managed by the army. A military court may accept a case in which an applicant applies for declaring a serviceman missing or dead. If the parties to a civil case are non-military, they shall be accepted by the local people's court. 2. When a party brings a civil lawsuit to a military court, it follows the principle of voluntariness, that is, the plaintiff may bring a lawsuit to a military court or a local people's court. "
From March 1993 to 20 1 1, the military court * * * concluded 25 19 civil cases of first instance, with a closing target of 65.438+65 billion yuan. Among them, since the implementation of 200 1 Reply, military courts have concluded a total of 725 civil cases of first instance/KLOC-0, with a closing amount of 465 million yuan. These cases mainly have the following characteristics: First, the types of cases are relatively concentrated. From March 2007 to 20 1 1, among the 783 civil cases of first instance concluded by military courts, the common types of cases are mainly contract disputes (accounting for 29.2%), loan disputes (accounting for 25.8%), marriage and family disputes (accounting for 15.7%) and tort damages disputes (accounting for%). 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 the first instance. Thirdly, mediation is the main way to close a case. Among the cases concluded above, 404 cases were closed through mediation, and 2 13 cases were withdrawn, with a withdrawal rate of 78.8%. It is higher than the national first-instance civil case withdrawal rate (67.3% in 20 12, and no more than 70% over the years). Fourth, the case execution rate is high. Up to now, all the concluded property cases have been executed, but the accumulated cases have not been executed, and the cases have really been closed. Military courts have been conducting civil trials for nearly 20 years, which has played a positive role in resolving civil contradictions and 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 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 Article 2 of the Organic Law of People's Courts stipulates the principle that military courts are special people's courts, without further clarifying their organizational structure and judicial power. According to Article 6 of the Supreme People's Court's Provisions on Judicial Interpretation, which was issued and implemented by our hospital on April 1 2007, the Reply is applicable to the requests of high courts on the specific application of laws in trial work, and the Interpretation should be adopted on how to apply laws to a certain law or a certain type of cases or problems in trial work. 200 1 Reply is not a judicial interpretation, but a general judicial interpretation document with insufficient effect. The jurisdiction of civil cases in military courts belongs to the problem of how to apply the law in accepting civil cases involving the military, which should be clarified in the form of "explanation"
Second, there are some problems in the trial of military-related cases in local courts, such as difficult identification of subject qualification, difficult delivery of documents, difficult preservation of property, difficult investigation and evidence collection, long trial period and difficult execution, which seriously affect the trial of military-related civil cases. Therefore, on 20 10, our hospital formulated the notice on further strengthening the trial of military-related cases in people's courts (hereinafter referred to as the notice), which put forward specific requirements for improving the coordination mechanism between the military and the land, establishing and improving the systems of joint meetings between the military and the land, information notification of military-related cases, and supervision of major military-related cases, so as to promote the solution of the trial problems of military-related cases. However, for civil cases in which both sides 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 investigation and evidence collection, service and execution.
Third, the scope of accepting civil cases by military courts is too narrow. According to the Reply of 200 1, military courts can only try civil cases in which both sides are soldiers or military units, which makes it easier for military courts to solve contradictions and disputes more thoroughly, making it impossible for some cases to enter military courts and the trial resources cannot be rationally allocated. In recent years, deputies to the National People's Congress have repeatedly put forward relevant suggestions, calling for 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 trial of military-related civil cases, further clarifying and moderately relaxing the scope of civil cases under the jurisdiction of military courts, 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 based on standardizing the scope and conditions for military courts to accept civil cases, mainly from the following four aspects, and safeguarding the legitimate rights and interests of both military and civilian parties according to law.
First, adhere to the principle of 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 limited. On the principle that both sides are soldiers or military units, autonomy should be exercised according to the wishes of the parties, and it should be appropriately extended to the case that one side is a soldier or military unit.
Second, adhere to the principle of two heads out. Conscientiously implement the principle that the civil procedure law facilitates the litigation of the parties and the trial of the people's court. If the traffic is inconvenient and there is no local military court, a lawsuit can be brought to the local people's court, and the parties concerned can choose the court with jurisdiction.
Third, 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 Regulations emphasize the protection of the procedural rights of the parties, and specifically clarify the settlement of jurisdictional disputes and the relief of jurisdictional objections.
Fourth, the principle of giving consideration to national defense interests, military rights and interests and protecting the rights and interests of local parties. For civil cases where one party is local, fully respect the wishes of the parties and insist that the parties choose the court of jurisdiction.
III. The scope of jurisdiction of military courts over civil cases.
The jurisdiction of military courts over civil cases is the focus of the regulations. Includes the following aspects.
On the Special Jurisdiction of Military Courts in Civil Cases
The first paragraph of Article 1 of the Regulations stipulates that cases in which both sides are soldiers or military units shall be under the jurisdiction of military courts, unless otherwise stipulated by law. This is the general clause of the jurisdiction of military courts in civil cases, which embodies the basic principle of personal jurisdiction, and further generalizes and standardizes the article 1 of Reply No.20065438, "Military courts try civil cases in which both parties are active servicemen, retired cadres managed by the army, employees in the army or military legal persons".
The second item of Article 1 of the Regulations is about the jurisdiction of cases involving military secrets above the classified level. 196165438+1On October 27th, 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 Household Registration Management and Case Handling of Employees and Their Families in National Defense and Frontier Departments, stipulating that "all civil and criminal cases involving internal secrets should also be handled by military procuratorial and military legal departments." Article 1 1 of the Regulations on Secrecy of China People's Liberation Army stipulates that military secrets are classified into top secret, confidential and secret. Top secret military secrets are the most important military secrets, and their disclosure will cause particularly serious damage to national defense security and military interests; Confidential military secrets are important military secrets, the disclosure of which will seriously damage national defense security and military interests; Secret military secrets are general military secrets, the disclosure of which will damage national defense security and military interests. This clearly stipulates that cases involving military secrets above the confidential level shall be under the jurisdiction of military courts.
The third and fourth items of Article 1 of the Regulations are about the jurisdiction of military special procedure cases. Due to the particularity of military administration in the case of setting up the Election Committee, according to the provisions of Article 164 of the Civil Procedure Law, it is clear that the application filed by the parties who refuse to accept the decision of the Election Committee on the handling of voter qualification complaints shall be accepted by the military court; According to the provisions of Article 174 of the Civil Procedure Law, a case in which the property in a camp is found to be ownerless shall be tried by the military court where the property is located.
On the Selective Jurisdiction of Civil Cases in Military Courts
If one party is a soldier or an army, and the other party is a local party, the local party has the right to choose, and can bring a lawsuit to a military court or a local court on cases of military duty infringement, cases of military-related infringement occurring in the camp, cases of military marriage and family, cases of military-related cases under exclusive jurisdiction and cases applying special procedures, which not only respects the autonomy of the parties, but also facilitates the trial and execution of the cases.
On the agreed jurisdiction of civil cases in military courts
According to Article 25 of the Civil Procedure Law, a contract dispute between a local party and a soldier or an army, where the place of performance of the contract or the location of the subject matter is in a camp, shall be under the jurisdiction of a military court if the parties agree in writing in the contract. During the drafting process, some comrades suggested that the scope of cases under the jurisdiction of the agreement should be increased according to Article 25 of the Civil Procedure Law. In particular, the amendment to the Civil Procedure Law, which was deliberated and adopted on August 3 1 2065438, decided to expand the scope of cases under the jurisdiction of the agreement from contract cases to all property rights and interests cases. However, considering the certainty of jurisdiction, especially the actual resources for military courts to hear civil cases, the Regulations have made corresponding restrictions on the jurisdiction of the agreement, which only applies to "
Exceptions to special jurisdiction
According to the principle of "two conveniences", local people's courts can have jurisdiction over cases in remote areas where there are no military courts in the provincial administrative divisions where the parties live or the traffic is very inconvenient, except for cases involving military secrets above the confidential level. The reason for this provision is that due to historical reasons, there are no grass-roots military courts in Jiangxi, Ningxia and Guizhou. Even in provinces and cities with grass-roots military courts, there are objective facts that it is not convenient for parties to sue in remote areas. "Remote areas with very inconvenient transportation" is determined with reference to the provisions of Item (1) of Article 156 of the newly revised Criminal Procedure Law of 20 12.
Four. Settlement of Jurisdiction Disputes between Military Courts and Local People's Courts
Article 36 of the Civil Procedure Law provides a legal basis for resolving jurisdiction disputes. Accordingly, Article 5 of the Regulations provides for the transfer of jurisdiction between military courts and local people's courts. Paragraph 1 of this article stipulates that if the accepting court finds that the case is not under its jurisdiction, it shall transfer it to the court with jurisdiction, and the transferred court shall accept it. Different from the general case transfer jurisdiction, when the transferred local people's court thinks that the transferred case does not belong to the jurisdiction of the local people's court, it should report to the local people's court at a higher level for coordination, rather than its designated jurisdiction. This is because military courts and local people's courts belong to two systems, and local people's courts at higher levels have no right to designate military courts for jurisdiction. In the same way, if the local people's court finds that the accepted civil case belongs to the jurisdiction of the military court, it shall be handled with reference to the above provisions.
In addition, although the organizational system of military courts is different from that of local people's courts, they are all divided into three levels, with the Supreme People's Court as its superior court. Therefore, the "Regulations" make it clear that disputes over jurisdiction between military courts and local people's courts 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.
Verb (abbreviation of verb) protects the litigation rights of local parties.
In addition to clarifying the jurisdiction of military courts over civil cases, the Regulations also strengthen the protection of the litigation rights of local parties in the following aspects: First, it stipulates that if there is no military court of first instance that can accept cases in the provincial administrative division where the parties live, or in remote areas with inconvenient transportation, the local people's courts can exercise jurisdiction; The second is to clarify the rights of the parties to the remedy of objection to jurisdiction, and stipulate that after the military court accepts the case, if the parties have objections to jurisdiction, they can raise them during the submission of the defense. If the objection is established, a ruling shall be made to transfer the case to a military court or a local people's court with jurisdiction.
Provisions of intransitive verbs on the interpretation and prescription of terms
Because the definition of soldiers, troops and camps directly affects the scope of accepting civil cases by military courts, accurate and clear definition can effectively avoid or reduce jurisdictional disputes, which is specifically explained in Article 8. According to the People's Armed Police Law and Articles 4 and 19 of the Provisions on Handling Criminal Cases Involving the Army and Local Authorities issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, the Ministry of Justice and the General Political Department of the China People's Liberation Army, soldiers refer to officers, civilian cadres, soldiers and students in active service in the China People's Liberation Army and the Chinese People's Armed Police Force. Civilian personnel, civil servants who are not in active service, regular employees of the army and retirees under the management of the army shall be under the jurisdiction of soldiers. The definition of a camp is determined with reference to Article 20 of the Provisions on Handling Criminal Cases Involving the Army and Local Authorities. Considering that civil cases are different from criminal cases, the stability of civil legal relations needs to be further maintained. Therefore, the "Regulations" did not adopt the contents of the "Regulations on Handling Criminal Cases Involving the Army and Local Authorities" that the camp area includes "temporary stations set up by the army".
In addition, in recent years, after the military stopped production and business activities, although the number of economic disputes in the military decreased, other civil cases in the military increased significantly. For the definition of military units, please refer to Article 6 of the Notice of the Supreme People's Court on Further Strengthening the Work of People's Courts in Hearing Military-related Cases about the military units within the scope of military-related cases, including the active forces of the China People's Liberation Army, the reserve forces, the Chinese People's Armed Police Force and enterprises and institutions within their establishment.
In addition, due to the changes in the contents of the Regulations and the replies of 1992 and 200 1, in order to avoid the conflict between the application of the old and new laws, Article 9 of the Regulations specifically stipulates the time effect.