How long is it late for the court session and will it be treated as a dismissal?

Source: Ming Lu said; Author: Chen Mingdong comes from the west

In accordance with the relevant provisions of the Civil Procedure Law, where the plaintiff refuses to appear in court without a legitimate reason, it may be handled as a withdrawal of the lawsuit, and where the defendant refuses to appear in court without a legitimate reason, a judgment may be rendered in absentia.

This article mainly discusses how long the plaintiff will be late for the court session and will be treated as a withdrawal of the lawsuit, and as for how long the defendant will be late for the court session and will be sentenced in absentia, the standard should be the same.

Handling the lawsuit as withdrawn is not a withdrawal of the lawsuit, but because of some specific circumstances (such as failure to pay the case acceptance fee, refusal to appear in court without a legitimate reason, etc.), the court shall treat the plaintiff as withdrawn and handle it as withdrawn.

Let's first take a look at the specific legal provisions that the plaintiff can handle as a withdrawal if he refuses to appear in court without a legitimate reason:

Code of Civil Procedure

Article 146:Where a plaintiff is summoned by summons and refuses to appear in court without a legitimate reason, or leaves court without the court's permission, it may be handled as a withdrawal of the lawsuit; Where the defendant makes a counterclaim, a judgment may be rendered in absentia.

There are three main points in this provision:

Takeaway 1, Prerequisites

"The plaintiff is summoned by summons" is a prerequisite for the application of this article, and if the plaintiff is not issued a summons or a summons is not served on the plaintiff in accordance with the law, and the plaintiff does not appear for court as a result, the legal consequences of "handling the lawsuit as withdrawn" should not arise.

Point 2: Reasons for not appearing in court

"Where the plaintiff refuses to appear in court without a legitimate reason, it may be handled as a withdrawal of the lawsuit", in other words, if the plaintiff fails to appear in court for a legitimate reason, it cannot be handled as a withdrawal of the lawsuit.

Common justifiable reasons for not being able to appear in court include: temporary sudden illness; being injured by an accident; Delays in airplane flights and high-speed rail trains; Accidental traffic accidents on the way to the courthouse; force majeure such as natural disasters and fires; Temporary martial law at the place of residence and inability to travel; kidnapped and illegally detained by lawbreakers; Violating the law, being detained or detained, etc.

Point 3: It may be handled as a withdrawal of the lawsuit

Please note that the phrase "may be dismissed" in this article does not mean "shall be dismissed".

The "may" in the legal text means that it is not necessary to deal with it in this way, and it can be dealt with in this way, and it may or may not be dealt with in this way.

The word "shall" in the text of the law means that it must be dealt with in this way.

In other words, even if the plaintiff does refuse to appear in court without justifiable reasons, the court may continue to hear the case without withdrawing the lawsuit.

Of course, in judicial practice, when the court encounters a plaintiff who refuses to appear in court without a legitimate reason, it is simply a dozing pillow and almost 100% of the lawsuit is dismissed.

So, is being late for court a "refusal to appear in court without a valid reason" in the law?

The answer is no, being late for court is not the same as "refusing to appear for court without a valid reason".

Once, when Ming Lu went to an intermediate court in Shanghai for a trial, he saw that the appellant's lawyer was late for the trial, and the clerk said, "We can handle the case as if you were so." The appellant's lawyer was not satisfied, scolded the clerk, and was not "refusing to appear in court without a legitimate reason" because he was late for the trial. The two had a quarrel and quarreled. In the end, the case was still heard, and it was not handled as a withdrawal.

Let's take a few precedents.

Supreme People's Court, (2015) Min Ti Zi No. 82 Civil Judgment

The court held that when the retrial of this case was held, lawyer Liu Kebing, an agent ad litem entrusted by Yimei Coal Group Company, failed to appear in court on time, and explained in court that his late arrival was caused by the impact of heavy rain and traffic congestion, and apologized to the court and the other party in court. The respondent, Zhang Yanhong, proposed in court that the case should be handled in accordance with Article 143 of the Civil Procedure Law of the People's Republic of China, and the case should be handled as the applicant's withdrawal of the lawsuit. In view of the fact that the agent had apologized in court, and the collegial panel also severely criticized his lateness in court, and that this case did not meet the conditions for dismissal of the lawsuit as stipulated in Article 143 of the Civil Procedure Law of the People's Republic of China, the collegial panel rejected Zhang Yanhong's request in court.

Beijing No. 1 Intermediate People's Court, (2021) Jing 01 Min Zhong No. 9746 Civil Judgment

This court held that Futong's appeal held that Wu Tianyuan participated in the trial half an hour later than the time recorded in the summons for the opening of the first-instance trial, and should be deemed to have automatically withdrawn the lawsuit. According to Article 143 of the Civil Procedure Law of the People's Republic of China, if a plaintiff is summoned by summons and refuses to appear in court without a legitimate reason, the lawsuit may be dismissed. Wu Tianyuan's conduct does not fall under the category of "refusal to appear in court without a legitimate reason" and should not be deemed to have voluntarily withdrawn the indictment.

Hanzhong Intermediate People's Court of Shaanxi Province, (2023) Shaanxi 07 Min Zhong No. 592 Civil Judgment

This court held that in this case, the appellee was one hour late for the first instance trial, but was only late, and had contacted the first-instance judge to explain the situation at that time, and did not refuse to appear in court, so this court held that the first-instance court did not violate the relevant legal provisions. The appellant's grounds of appeal are untenable, and this court does not support them.

So, does it mean that being late for court will definitely not be treated as a dismissal?

It can't be understood in this way, it still depends on the specific situation.

On March 24, 2020, when the Jingtai County Court heard a case of a dispute over a sales contract, the court ruled to withdraw the lawsuit because the plaintiff did not appear in court on time.

In judicial practice, if the court rules to withdraw the lawsuit due to being late for the trial, don't do too much.

Specifically, it depends on two elements:

First, whether there is a valid reason for being late for the court session

As mentioned earlier, being late for a court session cannot be equated with "refusing to appear in court without a valid reason"; If there is a valid reason for being late for the trial, then it is even less likely to be regarded as "refusing to appear in court without a valid reason"; If there is not only a valid reason for being late for the trial, but also informing the court in advance, it is legal and reasonable, and it will definitely not be "treated as a dismissal".

Second, the length of tardiness

Quantitative changes cause qualitative changes, and if you are a few minutes late, you should be considered late.

If you are 3 hours late, you can't call it late, you can't call it absence. Otherwise, there will be no absenteeism, and workers who are absent from work can say that I was just 8 hours late today.

Minor tardiness is considered tardiness and should not be treated as dismissal; Serious tardiness is considered an absence, and may be handled as a withdrawal of the lawsuit.

So how much time will it be dismissed as a dismissal?

At the level of laws and regulations, there are no relevant regulations.

Minglu searched and found two search results that were barely sidelined, and concluded that being more than 30 minutes late for the court session was considered an absence.

1. Shanghai Arbitration Commission Arbitration Rules (2018)

Article 44 Absenteeism of a Party (3) If a party is more than half an hour late for attending the hearing without the permission of the Arbitral Tribunal, it may be deemed to be absent from the hearing, and the corresponding legal consequences shall be provided for in paragraphs (1) and (2) of this Article.

However, this has no effect and does not count, firstly, because the arbitration rules do not govern the courts; Secondly, the 2018 version of the arbitration rules has also been amended and has become invalid.

2. Henan Provincial High People's Court's "The Phenomenon of Late Attendance for Trial Should Be Handled in a Standardized Manner"

The official website of the Henan Provincial High People's Court once published an article entitled "The Phenomenon of Late Appearance for Trial Should Be Standardized":

If one or both parties fail to appear on time, they shall be dealt with separately in the following circumstances:

1. The plaintiff or the defendant does not arrive at the designated place of trial at the time specified in the summons, but is not more than 30 minutes late.

The collegial panel shall require the plaintiff to truthfully state to the court the reason for being late, and if it is not a legitimate reason, it shall admonish him and allow him to enter the trial area and take a seat at the parties' bench.

2. The plaintiff did not arrive at the designated trial venue within the time specified in the summons and did not appear in court for more than 30 minutes.

The collegial panel made the following declaration: "(Explain the circumstances of the plaintiff's failure to appear in court) This court will ascertain the relevant circumstances of the plaintiff's failure to appear in court, and if there is a legitimate reason provided by law, this court will postpone the trial and set a separate date for the trial." If there is no justifiable reason, in accordance with the provisions of Article 129 of the Civil Procedure Law, this case will be handled as the plaintiff's withdrawal of the lawsuit. The specific results will be notified separately. The above declaration is recorded in the record.

3. Where the defendant fails to appear in court 30 minutes after the court session, the collegial panel may try the case in absentia if it finds that it does not affect the trial of the case; If it is found that it might lead to the inability to ascertain the facts of the case, the trial may be postponed.

Where the defendant appears in court before the conclusion of the trial, after ascertaining the defendant's identity, the collegial panel requires that the defendant state the reason for his tardiness to the court, and the collegial panel decides whether to allow him to participate in the trial on the basis of whether the reasons are legitimate and the circumstances of the case requires, but shall admonish him for failing to appear in court on time.

Defendants are allowed to participate in trials, and court investigations and courtroom debates that have already been completed are generally not to be resumed unless the collegial panel finds it necessary. If the trial continues in absentia, the accused may be allowed to observe.

4. Where all parties fail to appear at the court in accordance with the time notified by the court, the collegial panel shall postpone the hearing for 30 minutes, and the clerk shall record the situation in the case file. If one party appears in court during the postponed time, the collegial panel shall announce the opening of the hearing, and it shall be handled in accordance with items 1-3 of the preceding paragraph.

This article is very detailed and presentable, and there are also strategies to deal with various situations of being late for the trial, which is good.

First of all, this is just an article, not a judicial interpretation; Secondly, the official website of the Henan High Court has now deleted this article.

Therefore, it cannot be simply assumed that it is safe to be within 30 minutes late for the trial, and it will not be treated as a dismissal.

In the previous case of the Jingtai County Court, the plaintiff was dismissed as 15 minutes late.

According to the official Weibo of the Jingtai County Court: on the day of the trial, the defendant appeared in court on time, and the plaintiff still did not appear in court after 15 minutes, and the judge consulted the defendant's opinions, in accordance with Article 143 of the Civil Procedure Law of the People's Republic of China: "If the plaintiff is summoned by summons and refuses to appear in court without a legitimate reason, or leaves the court without the permission of the court, it may be handled as a withdrawal of the lawsuit; Where the defendant makes a counterclaim, a judgment may be rendered in absentia. "The court ruled that the case should be dismissed. When the plaintiff appeared in court more than 20 minutes later, he did not explain the justifiable reason for being late, but instead believed that he could be late for the court session, and that he had been late for the court session, which was a normal phenomenon.

In an administrative litigation case of an intermediate court in Shanghai in 2022, after the appellant arrived at the court, he arrived at the court 15 minutes later than the court time recorded in the summons, and the lawsuit was dismissed.

Therefore, it cannot be simply assumed that it is safe to be within 30 minutes late for the trial, and it will not be treated as a dismissal.

OK, that's all it takes, it's time to announce the answer,

Q: How long will I be late for the court session and will be treated as a dismissal?

A: In judicial practice, if you are more than 30 minutes late for the court session, the case will be dismissed.

Isn't that the same thing?

The answer above is different from the words "judicial practice".

The so-called judicial practice refers to the phenomena, rules, rules, and requirements that do not exist in the law, are not written on paper, can be done but cannot be said, or are not said when they are done, but do exist in judicial activities. It is also very similar to understand judicial practice simply and crudely as the unspoken rules, local rules, dry goods, and practices in judicial activities.

Unspoken rules and local rules do exist, but they can't be explained in words, and they can't be taken seriously, let alone not true.

In fact, the best way to deal with it is to "show up in court on time".

Punctuality is a virtue, and appearing in court on time reflects a kind of respect for the judiciary, others, and the law.

In the unlikely event that you are unable to show up for court on time, please be sure to contact the court in a timely manner, generally to greet the parties in advance. The court will also allow you to attend the hearing if you are late.

The most taboo thing is that it is not appropriate to be late for the trial, go your own way, and do not think so, and the court is generally not used to this kind of person and this kind of style.

Finally, let's talk about another judicial practice, if you encounter traffic jams and are late on the way to the court by car, the court generally does not consider it a "legitimate reason......

It may be that the court also advocates "green travel".