Article 123 of the Civil Procedure Law
The people's court shall guarantee the right of prosecution enjoyed by the parties according to law. A lawsuit that conforms to Article 119 of this Law must be accepted. Those who meet the conditions for prosecution shall file a case within seven days and notify the parties concerned; If it does not meet the conditions for prosecution, it shall make a ruling within seven days and refuse to accept it; If the plaintiff refuses to accept the ruling, he can appeal.
Article 124 The people's court shall handle the following prosecutions separately according to the circumstances:
(a) in accordance with the provisions of the administrative procedure law, which belongs to the scope of administrative litigation, inform the plaintiff to bring an administrative lawsuit;
(2) In accordance with the law, if both parties reach a written arbitration agreement to apply for arbitration and cannot bring a lawsuit to the people's court, inform the plaintiff to apply to an arbitration institution for arbitration;
(3) Informing the plaintiff to apply to the relevant authorities for settlement of disputes that should be handled by other organs according to law;
(4) Informing the plaintiff to bring a suit in a people's court that has jurisdiction over a case that is not under the jurisdiction of this court;
(5) If a party files a lawsuit in a case in which a judgment, ruling or conciliation statement has become legally effective, it shall inform the plaintiff to apply for a retrial, unless the people's court decides to allow the withdrawal of the lawsuit;
(six) cases that cannot be prosecuted within a certain period of time according to law shall not be accepted;
(seven) cases in which divorce or mediation is not allowed, and cases in which the adoption relationship is maintained through judgment or mediation, if there are no new circumstances or new reasons, will not be accepted if the plaintiff brings a lawsuit within six months.
What is the scope of the court not accepting cases?
First, national defense, diplomacy and other state acts.
Article 12, item 1 of the Administrative Procedure Law stipulates that the people's courts shall not accept lawsuits brought by citizens, legal persons or other organizations against national defense, foreign affairs and other state acts. State behavior, also known as ruling behavior and political behavior, refers to strategic behavior involving major national issues such as relations between countries and national security. In China, it mainly refers to the national defense and diplomatic acts carried out by the State Council, the Central Military Commission, the Ministry of National Defense and the Ministry of Foreign Affairs in the name of the country under the authorization of the Constitution and laws, as well as the acts of state organs authorized by the Constitution and laws to declare a state of emergency, martial law and mobilization. It is generally believed that the actions taken by state organs on major political issues of the country according to the discretionary power conferred by the Constitution and laws belong to political actions rather than pure legal actions. If this behavior is not taken properly, the state organs and their responsible persons will only bear political responsibility, but not legal responsibility. The court is a judicial organ, which only has the right to examine legal acts, and has the right to pursue legal responsibility for disputes arising from state acts. It is not a judicial organ but only a people's or political organ.
Due to different political systems and national structures, countries have different understandings of the scope of state behavior, and they are different with the changes of the situation. However, countries generally regard national defense and diplomacy as national acts. The national defense law mainly includes decisions and orders on conscription, military supplies, military bases and military facilities construction; State behavior in foreign affairs mainly includes concluding treaties and agreements according to the country's foreign policy, recognizing foreign governments, views on major international events and other decisions and orders in foreign affairs.
China does not practice impeachment system, and political leaders' political responsibilities are not tried by people's courts. According to Article 73 of the Constitution, deputies to the National People's Congress and members of the NPC Standing Committee have the right to ask questions to ministries and commissions in the State Council or the State Council in accordance with legal procedures during the session of the National People's Congress. Of course, the problem can be directed at national defense, diplomacy and other state acts. If the National People's Congress or the NPC Standing Committee thinks that the ministries and commissions of the State Council or the State Council have acted inappropriately in national defense or foreign affairs and need to be investigated for political responsibility, they can recall their leaders in accordance with legal procedures. Therefore, if citizens, legal persons or other organizations have opinions on national defense, foreign affairs and other state acts, they can raise them with the organ that made the state acts or with the National People's Congress or its Standing Committee.
Second, abstract administrative behavior.
Item 2 of Article 12 of the Administrative Procedure Law stipulates that the people's courts shall not accept the lawsuits brought by citizens, legal persons or other organizations against administrative regulations, rules or decisions and orders with general binding force formulated and promulgated by administrative organs.
According to the Constitution, only the NPC Standing Committee has the right to revoke the administrative regulations and universally binding decisions and orders formulated by the State Council that contravene the Constitution and laws; Only the administrative organ at a higher level or the Standing Committee of the people's congress at the same level and the Standing Committee of the people's congress at a higher level have the right to revoke the rules formulated by the local people's governments at all levels and their working departments that are in conflict with the Constitution, laws, regulations or other universally binding decisions, resolutions and orders. The people's court has no right to confirm whether administrative regulations, rules or decisions and orders with universal binding force are in conflict with the Constitution, laws or administrative regulations, so they have no legal effect. Therefore, if the parties have objections to these abstract administrative acts, they can raise them with the enacting organ or its superior administrative organ and the standing committee of the people's congress at the same level or the standing committee of the people's congress at a higher level.
In the process of trying administrative cases, an important step for people's courts is to correctly apply the law on the basis of finding out the facts. If the people's court finds that the administrative regulations, rules or decisions and orders with universal binding force formulated and promulgated by the administrative organ are in conflict with the superior legal documents or abstract administrative acts with the same legal effect, it shall request the competent authority to make an explanation or ruling.
Third, internal administrative behavior.
Item 3 of Article 12 of the Administrative Procedure Law stipulates that the people's court shall not accept the lawsuit brought by citizens, legal persons or other organizations on the decision of the administrative organ to reward and punish, appoint or dismiss the staff of the administrative organ. Among them, the decision of reward and punishment, appointment and dismissal of the staff of administrative organs refers to the decision made by administrative organs involving the rights and obligations of civil servants of administrative organs.
This kind of decision is an administrative act of the administrative organ to manage its internal affairs, which belongs to the category of self-discipline of the administrative organ, and the people's court cannot intervene through trial procedures. At the same time, the rewards and punishments, appointment and dismissal of staff by administrative organs are usually based on internal regulations and internal assessment results, which is the result of comprehensive judgment of administrative organs, and the people's courts cannot judge whether these decisions of administrative organs are legal and appropriate. According to the provisions of relevant laws, the power of supervision over such acts shall be exercised by administrative organs, supervisory organs and personnel organs at the next higher level respectively.
Four, the law provides for the final ruling by the administrative organs of administrative acts.
Item 4 of Article 12 of the Administrative Procedure Law stipulates that the people's court shall not accept the lawsuit brought by citizens, legal persons or other organizations against the specific administrative act finally made by the administrative organ according to law. The laws mentioned here refer to the normative documents formulated and adopted by the National People's Congress and the NPC Standing Committee. Laws and regulations stipulate that the administrative organ may make a final ruling on certain matters. If a citizen, legal person or other organization refuses to accept the ruling made by the administrative organ in accordance with these laws and regulations and brings a lawsuit to the people's court according to law, the people's court shall accept it.
There are three main ways for the scope of specific administrative acts that the law stipulates that the administrative organ will make a final ruling:
(A) a clear list of ways
In other words, the law clearly stipulates that if a party refuses to accept the administrative decision of an administrative organ, he can only apply to the relevant administrative organ for reconsideration, and the reconsideration decision is final, and no lawsuit may be brought to the people's court. For example, the third paragraph of Article 43 of the Patent Law stipulates that the decision made by the Patent Reexamination Board on the applicant's request for reexamination of utility model and design is final; Paragraph 3 of Article 49 stipulates that the decision made by the Patent Reexamination Board on the request for invalidation of the patent right for utility model and design is final. Another example is Article 22 of the Trademark Law; Where an objection is raised to a trademark that has been preliminarily examined and announced, the Trademark Office shall notify the applicant in writing. If the applicant refuses to accept the notice, he may apply for reconsideration within 15 days after receiving the notice, and the Trademark Review and Adjudication Board will make a final ruling and notify the objector and the applicant in writing. Such cases are usually very professional and technical.
(2) The parties are free to choose.
That is, if a party refuses to accept the decision of the administrative organ, he may apply for reconsideration to the organ at the next higher level of the administrative organ that made the decision. The reconsideration decision is final, or he may directly bring a lawsuit to the people's court. For example, Article 15 of the Law on the Administration of Citizens' Exit and Entry stipulates that if a citizen who is detained and punished by a public security organ refuses to accept the punishment, he can lodge a complaint with the public security organ at the next higher level within 15 days from the date of receiving the notice, and the public security organ at the next higher level will make a final decision, or he can directly file a lawsuit with the local people's court. Another example is the second paragraph of Article 29 of the Law on the Entry and Exit of Aliens: If an alien who is fined or detained by a public security organ refuses to accept the punishment, he can lodge a complaint with the public security organ at the next higher level within 15 days from the date of receiving the notice, and the public security organ at the next higher level will make a final decision, or he can directly file a lawsuit with the local people's court.
(3) The law does not stipulate which administrative disputes shall be finally decided by the administrative organs, but according to the provisions of Article 1 1 of the Administrative Procedure Law, the decisions made by the administrative organs on disputes arising from specific administrative acts outside the scope of accepting cases by the people's courts are in fact final decisions.
For example, Article 13 of the Law on Assemblies, Processions and Demonstrations stipulates that if the person in charge of an assembly, a procession or a demonstration refuses to accept the decision of the competent authority, he may apply to the people's government at the same level for reconsideration within 3 days from the date of receiving the notice of decision, and the people's government shall make a decision within 3 days from the date of receiving the application for reconsideration. The law does not stipulate that a party who refuses to accept the reconsideration decision of the people's government can bring a lawsuit to the people's court, nor does the Administrative Procedure Law. Therefore, the people's government's reconsideration decision on the application for assembly, procession and demonstration is final.
If a party still refuses to accept the specific administrative act of an administrative organ that has made a final ruling according to law, he may appeal to the administrative organ that made the final ruling or the administrative organ at the next higher level.
In addition to the circumstances stipulated in Article 12 of the Administrative Procedure Law, Article 2 of the Supreme People's Court's Interpretation on Several Issues of Implementation also lists several acts that are excluded from the scope of accepting cases by the people's courts, namely:
1. Acts explicitly authorized by public security, national security and other organs according to the Criminal Procedure Law;
2. Mediation and arbitration provided by law;
3. Non-mandatory administrative guidance;
4. Refuse to handle the complaints of the parties on administrative acts repeatedly;
5. Acts that have no actual impact on the rights and obligations of citizens, legal persons or other organizations.