The first step of litigation-prosecution, in the words of ordinary people, is to complain. Below we will tell you something about the prosecution. The prosecution of the parties may not necessarily lead to the initiation of the proceedings. If the legal conditions for prosecution are not met, the court will rule that it will not be accepted. So what is a qualified prosecution? Prosecuting the right person involves two meanings. On the one hand, to complain, you must first become a qualified plaintiff; On the other hand, the other party must be a qualified defendant. What conditions do the plaintiff and defendant in the case need to meet? First of all, the plaintiff must be a citizen, legal person or other organization that has a direct interest in the case. For example, your father's private house has been rented by others for a long time, and you need a house urgently if you want to get married, so you sue the court in your own name and ask the other party to vacate the house. The court will not accept it because you are not the owner of the property and do not meet the conditions of both parties. As a party, you should meet the following characteristics:
Bring a lawsuit in his own name. Those who participate in litigation in the name of others are agents ad litem, not parties.
If you have a direct interest in this case, that is, you participate in the litigation for your own civil rights and interests, the civil rights and interests protected by the court belong to your own management and control.
Secondly, the complaint must have a clear defendant. "Defining the defendant" means: First, the basic information of the defendant should be clear, such as the name, gender, age, nationality, work unit and address of the citizen, and the name, domicile, legal representative or person in charge of the legal person or other organization should be clear and specific. Second, the object of action should actually exist, and the deceased citizen or the revoked legal entity cannot be used as the party.
If you want to find the right way to sue, you want to sue to the court. First, you have to run the court. All cases that belong to the production management of the court according to law must be accepted and tried by the court. All civil cases that are not under the jurisdiction of the people's courts cannot exercise judicial power, and they can't manage them if they want to. There are many kinds of civil disputes. Litigation is not the only way to solve civil disputes. In addition, there are people's mediation and arbitration. According to the provisions of China's Civil Procedure Law, the people's courts accept civil actions brought by citizens, legal persons, other organizations and their personal relations. There are mainly the following categories:
Disputes over property relations and personal relations. Such as property ownership, creditor's rights, copyright, personality rights, identity rights and other cases.
Cases of disputes over marriage and family relations. Such as divorce and maintenance cases.
Disputes arising from business relations. Such as bills, shareholders' equity cases, etc.
Disputes over economic relations. Such as various contract cases.
Labor dispute cases arising from labor relations. Such as dismissal and dismissal cases.
Other circumstances stipulated by law, such as voter qualification cases and cases of declaring missing.
Your affairs should be handled by the court, but which court should you sue? This involves the jurisdiction of the court. Jurisdiction refers to determining the division of labor and authority between courts at all levels and courts at the same level to accept civil cases of first instance within the court system. You can only find the right place to go to court, and you can only find the right door to sue you in a court with jurisdiction. The jurisdiction of the court mainly includes the following aspects:
(1) Hierarchical jurisdiction refers to the jurisdiction that divides the division of labor and authority of higher and lower courts in accepting civil cases of first instance. According to the law, grass-roots courts have jurisdiction over civil cases of first instance. However, there are exceptions, such as divorce proceedings or economic contract disputes, which are tried by grass-roots courts and intermediate courts, which are also stipulated by law. Cases of first instance directly accepted by the Intermediate People's Court are:
Major foreign-related cases, that is, foreign-related cases in which the subject matter of the dispute is large, or the case is complicated, or the parties live abroad with a large number of people.
Cases with significant influence within the jurisdiction, civil cases with disputed subject matter of more than 2.5 million yuan, economic cases with disputed subject matter of more than 5 million yuan, intellectual property cases and cases determined by the Supreme Court to be tried by intermediate courts.
Regional jurisdiction. If hierarchical jurisdiction is to divide the jurisdiction of the lower and higher courts, then the region is to divide the scope of accepting cases of first instance by the courts at the same level. China implements the principle of "plaintiff is defendant" in general regional jurisdiction. That is, which court is under the jurisdiction of the defendant's domicile, which court will accept it. If you sue a person, for example, his household registration is in Liu Yang Hutong, Xicheng District, but he lives in Jinsong Beili, Chaoyang District for a long time, then you should sue in Chaoyang District Court. The Civil Procedure Law stipulates that a lawsuit brought against a citizen shall be under the jurisdiction of the people's court where the defendant is domiciled; If the defendant's domicile is inconsistent with his habitual residence, it shall be under the jurisdiction of the people's court of habitual residence.
In addition, there are special territorial jurisdiction or exclusive jurisdiction. See Articles 24 to 33 of the Civil Procedure Law for details. This is based on the jurisdiction of the location of the litigation object and the location of the legal facts.
To write a letter of complaint, you must first have a letter of complaint. The contents of the indictment mainly include: the natural situation of the parties, the litigation request and the facts and reasons on which it is based, the evidence and its source, and the name and residence of the witness. For the specific format, please refer to the detailed introduction in the format text of litigation documents. Here, we tell you some places that need special attention:
The natural conditions of the parties concerned shall be accurate and specific. Natural information includes: natural person's name, gender, age, nationality, nationality, employer and domicile; legal person's name and domicile, legal representative's name and position. Among them, the names of natural persons and legal persons are consistent with their identity cards and business licenses, and the domicile of the parties concerned should be accurate, detailed and accurate to the house number.
The complaint shall specify the reasons for the action. In layman's terms, the cause of action is what lawsuit is being played. For example: you are fighting a divorce lawsuit, and the cause of action is divorce; Because you are fighting a debt collection lawsuit, the cause of action is to write an iou.
In the litigation request part, it is necessary to specify what problems you want the court to solve, such as asking for divorce, fulfilling the contract, asking for compensation, etc. There are several requirements that should be listed one by one. For example, in the prosecution of reputation disputes, the claim is: 1. Asking the defendant to stop infringing the plaintiff's reputation right; 2. Ask the defendant to compensate the plaintiff for the loss of reputation rights of 65,438 yuan+0,000 yuan; 3. Ask the defendant to apologize to the plaintiff in the publicly issued newspapers and periodicals to eliminate the influence and restore the plaintiff's reputation.
In the fact part, the reason, process and present situation of the dispute between the two sides should be clearly written. The reason part should be based on facts, distinguish right from wrong, clarify responsibilities, and cite relevant laws and regulations to prove it.
Indicate the name of the sending court. In which court to sue, you should write "to the court of ××".
At the end of your complaint, you should also write down the time. The natural person shall be signed by himself, and the legal person shall be signed by the legal representative and stamped with the official seal of the legal person unit.
Litigation costs money, and you have to pay the necessary legal fees. If you are really unable to pay, your legitimate rights and interests are in urgent need of legal protection, and you can apply to the court for reduction or exemption of litigation costs. Next, we will introduce you to some questions about litigation costs.
Types of litigation costs
Litigation fees include: case acceptance fees, application fees and other litigation fees.
The case acceptance fee refers to the fee paid by the procuratorial organ to the court according to law when the court decides to accept the case.
The case acceptance fee can be divided into property case acceptance fee and non-property case acceptance fee.
Property case acceptance fee
If it is a civil lawsuit caused by property disputes, such as debt and contract disputes, legal fees should be paid according to a certain proportion of the disputed property. The law has strict regulations and corresponding calculation formulas for the payment of attorney fees. Here is a quick calculation formula for you. Fast calculation method:
65438+ less than 10,000 yuan ×50 yuan/piece
1 0,000 yuan-50,000 yuan ×0.04+ 10 yuan
50,000 yuan-65,438+10,000 yuan ×0.03+5 10 yuan
65438+ 10,000 yuan-200,000 yuan ×0.02+ 15 10 yuan
200,000 yuan-500,000 yuan× 0.015+2510 yuan.
500,000 yuan-1 ten thousand yuan ×0.0 1+50 10 yuan.
Exceeding 1 ten thousand yuan ×0.005+ 100 10 yuan.
For example, you are in a debt lawsuit, and Zhang San borrowed 1.5 million yuan from you. If you sue him for repayment, the legal fees you need to pay in advance are: 1.05 million× 0.02+0.510 = 4510 yuan.
There are many lawsuits in which the acceptance fee for non-property cases does not involve property disputes, such as adoption and infringement of reputation rights. The acceptance fee for such cases is charged according to a certain range, and the specific charging methods are as follows:
Divorce cases, each case 10 yuan paid to 50 yuan. If the total amount of property does not exceed 10000 yuan, no additional fees will be charged. If it exceeds 10000 yuan, the excess shall be paid as 1%.
500 yuan to 1 000 yuan per case for infringement of the right to name, name, portrait and honor;
Infringement of patent right, copyright and trademark right will cost 500 yuan to 1000 yuan per case, and the disputed amount will be paid according to the charging standard of property cases.
Public security administrative cases, each to pay 30 yuan; Patent administrative cases and trademark administrative cases, each pay 1000 yuan.
Labor dispute cases, each to pay 30 yuan to 50 yuan.
For other non-property cases, each piece 10 yuan will be paid to 50 yuan.
The application fee refers to the fee paid by the parties to the people's court for property preservation measures. To apply for property preservation, the quick payment method is as follows: below 65,438, 30 yuan+0,000 yuan/piece, 65,438+0,000 yuan-65,438+0,065,438 yuan+0,008 yuan+0,005,000 yuan in 20 yuan. In addition, there are some other litigation costs, which refer to the actual expenses incurred in the course of litigation. Mainly includes:
Inspection fee, appraisal fee, announcement fee and translation fee;
Transportation, accommodation, living expenses and lost time allowance for witnesses, experts and translators to appear in court;
The actual expenses of the people's court in the process of execution.
Prepayment of litigation costs If you are the plaintiff in a civil case of first instance, you must pay the litigation costs within 7 days from the day after receiving the notice from the court to pay the litigation costs. After the lawsuit is finished, the court will give you a clear statement about who will pay. If you insist on not paying the legal fees on time, the court will dismiss the lawsuit and your case will not be heard. Similarly, the acceptance fee of the appeal case shall be paid in advance by the appellant, and if both parties appeal, the parties shall pay in advance respectively. The application fee shall be paid in advance by the applicant when making the application. Other litigation costs shall be decided by the people's court according to the specific circumstances of the case.
How to file a civil appeal If you are never satisfied with a trial, you can appeal to a higher court and ask it to try your case again. You must appeal to the people's court at the next higher level within 15 days from the date of service of the first-instance judgment and 10 days from the date of service of the ruling. If both parties fail to file an appeal within the statutory time limit, the ruling of first instance will take legal effect. As long as one party appeals during the appeal period, the judgment of first instance will not take effect. If you want to appeal, you must write an appeal. For the specific format and writing of the appeal, please refer to our "Format and Text of Litigation Documents". The legal fees must be paid, and you must pay the legal fees at the designated bank within 7 days from the day after submitting the appeal. Execution-the "Last Procedure" of Litigation
How to apply for enforcement? First of all, you need to know which court should be in charge of your case. The Civil Procedure Law stipulates that legally effective civil judgments and rulings, as well as the property part of criminal judgments and rulings, shall be executed by the people's court of first instance. Time limit for execution The Civil Procedure Law stipulates that if the respondent is a citizen, the time limit for applying for execution is one year. In other words, the judgment shall not be executed by the court for more than one year. If the respondent is a legal person or other organization, it is six months. After six months, the applicant applies to the court for enforcement, and the court cannot enforce it. The time limit for applying for execution shall be counted from the day after the last day of the performance period stipulated in the legal documents. To apply for execution, the following documents shall be prepared:
Apply for execution
Effective legal documents as the basis for implementation.
The identity certificate of the application executor.
Where an heir or obligee accepts an application for execution, he shall submit a certificate of inheritance or acceptance of rights.
After you apply to the court for execution, the court shall, within three days, issue an execution notice to the person subjected to execution and order him to perform it within a specified time limit. If the person subjected to execution fails to perform within the time limit, the court may enforce it. The court's enforcement measures include: freezing, transferring deposits, seizing and withdrawing income; Seal up, detain, auction and sell off property; Search for hidden attributes; Forced to leave home, forced to leave the land, and so on.