More civil lawsuits will have no chance of appeal, and the changes brought about by the revision of the Civil Procedure Law are 12345

Partnership Guide | Author: Li Li

This is the 910th text of Li Li's blog and partnership guide public account

More civil lawsuits will have no chance of appeal, and the changes brought about by the revision of the Civil Procedure Law

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Such an important basic law, the Civil Procedure Law, this revision has been submitted to the Standing Committee of the National People's Congress for deliberation, once adopted and implemented, it will bring great changes to civil litigation, and many people have formed procedural knowledge about civil litigation in the past, and many may have to be updated.

The 31st Session of the Standing Committee of the 13th National People's Congress deliberated on the Civil Procedure Law of the People's Republic of China (Draft Amendment). On October 23, the Civil Procedure Law of the People's Republic of China (Draft Amendment) was published and publicly solicited for comments.

The above passage and which provisions of the Civil Procedure Law are revised have been reported by major official media. However, this news does not seem to arouse the heat of self-media and social networks.

In China's self-media and social networks, the legal content has always been relatively cold. There are usually only two situations in which legally-related content can form a hot spot on social networks: one is the legal analysis of cases that have aroused public discussion; the other is the legislative revision of family laws such as marriage law and inheritance law.

In terms of legal self-media, accounts suitable for public communication are pitifully rare. As far as I can see, legal self-media is currently mainly divided into two poles, one is to extract social hot cases and then make a brief evaluation, and the other pole is for professionals to share professional knowledge and professional experience. The former is almost a story meeting, and the latter is confined to small groups. My article is also biased towards the latter.

There are not many professional analyses shared by professionals on professional content such as the revision of the Civil Procedure Law, and I am also learning a lot of valuable content.

Today, I would like to speak directly about the results, that is, what impact and changes this revision of this law may bring to the public.

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For people, companies and other organizations that may have to fight civil lawsuits in the future, if the revision of the Civil Procedure Law is approved, there will be two major changes:

More civil litigation cases will not have the opportunity to appeal to the second instance;

The trial time of civil litigation cases will be relatively short as a whole.

Of course, it is not just these 2 changes, but the impact of these 2 changes is the largest.

Below, let's talk casually from these 2 main changes.

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More civil litigation cases will not have the opportunity to appeal to the second instance.

The reason why it is "more" is because there are some litigation cases in the current Civil Procedure Law that do not have second-instance trials, that is, "first-instance final adjudication".

In these current "first-instance and final" cases, there are two categories:

The first category is the traditional "first instance final trial" case.

That is, cases that are "special procedures" under the Civil Procedure Law, which include: voter qualification cases, cases of declaration of disappearance or death, cases of finding that citizens have no or limited capacity for civil conduct, cases of determining property ownerlessness, cases of confirming mediation agreements and cases of realizing security interests.

In these special procedures cases, the legislation stipulates that it is "first-instance final trial" and there is no appeal to the second instance. Such a provision exists in the Civil Procedure Law ( for trial implementation ) , the predecessor of the Civil Procedure Law , which came into force on October 1, 1982. However, the cases targeted by the special procedures in the earliest Civil Procedure Law were only "voter list cases, cases of declaring the death of missing persons, cases of determining the incapacity of citizens and cases of determining the absence of property owners", and later with the continuous revision of the law, the types of special procedures cases were added.

The second category is "small claims" added in the legislative revision process.

The legislative content of this "small claims" was added when the Civil Procedure Law was revised for the second time. After the revision of the Civil Procedure Law in 2012, a provision was added: "Article 162: Where a basic level people's court and a court dispatched by it hear a simple civil case that complies with the provisions of paragraph 1 of article 157 of this Law, and the subject amount is less than 30 percent of the average annual salary of employed persons in each province, autonomous region, or municipality directly under the Central Government in the previous year, the first instance final trial shall be carried out." "The content of this legislation continues to the current revised version and has not changed.

In the above-mentioned legislative provision on "small claims", the so-called "simple cases that comply with the provisions of the first paragraph of Article 157 of this Law" refer to "simple civil cases with clear facts, clear relationships of rights and obligations, and little controversy" as described in Article 157 of Chapter 13 of the Civil Procedure Law.

Therefore, "small claims" cases are part of the cases in which the "summary procedure" is applied, and the subject amount is the part of the case in which the average annual wage of employed persons in each province, autonomous region, or municipality directly under the Central Government in the previous year is less than 30 percent. Simply put, "small claims" cases are a branch of summary procedure cases.

Among the cases of summary procedure, only "small claims" cases are subject to the first-instance final trial system, and other summary procedure cases are still the second-instance final trial system.

In the 2012 revision of the Civil Procedure Law, there is a new provision in this regard, that is, the parties can agree that the case shall be subject to the summary procedure, regardless of whether the case is a simple case of the type mentioned above. This new provision, in the current revision of the Civil Procedure Law, has once again broken through a small step forward, and will be said later.

In summary, it can be seen that in the current Civil Procedure Law, cases that can adopt the "small claims" procedure need to meet two conditions at the same time: 1. Simple civil cases in which the facts are clear, the relationship between rights and obligations is clear, and the dispute is not large; 2. The subject amount is less than 30% of the average annual wage of employed persons in each province, autonomous region, and municipality directly under the Central Government in the previous year.

The draft amendment to the Civil Procedure Law shows that the second condition, that is, the amount of the subject, has been relaxed to "the subject amount is less than 50% of the average annual wage of employed persons in each province, autonomous region and municipality directly under the Central Government in the previous year". Directly from "thirty percent" to "fifty percent". This means that more simple cases will be included in the "small claims" cases, that is, more cases will apply to the "first-instance final trial system", which means that more simple cases will have no statutory second-instance appeal opportunities.

In addition, in the current draft amendment, it is also stipulated that "if the amount of the subject matter exceeds the provisions of the preceding paragraph, but the average annual salary of the employed person in each province, autonomous region or municipality directly under the Central Government in the previous year is less than three times, the parties may agree to apply the small claims procedure." "This will also appropriately increase the use of small claims in the litigation resolution of some disputes, and the final adjudication of the first instance."

The average annual wage of employed persons in each province, autonomous region, or municipality directly under the Central Government in the previous year refers to the average annual wage of employed persons in each province, autonomous region, or municipality directly under the Central Government in the previous year that has been announced. Before the publication of the average annual wage of the employed person in the previous year, the average annual wage of the employed person in the most recent year that has been announced shall prevail.

On July 2, 2021, the Shanghai Human Resources Guarantee Network issued an announcement on matters related to the average wages of employed personnel in full-caliber urban units in shanghai in 2020, announcing that the average wage of employed personnel in full-caliber urban units in Shanghai in 2020 was 124056 yuan. According to this data in 2020, simple civil cases with clear facts, clear relationships of rights and obligations, and little dispute, and the subject matter of the case is less than 62,028 yuan (including 62,028 yuan), within the jurisdiction of the Shanghai court, it should be considered a "small claim" case, and the first-instance final trial system will be applied.

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"Overall" means that the court trial time of a single specific case is not necessarily reduced, but civil litigation cases as a whole are institutionally guided to reasonably shorten the time for the court to actually hear the case.

One of the most obvious amendments is that the time for "service by announcement" has been shortened, and the time for publication stipulated in the revised draft is only half of that stipulated by the current law.

According to the current Civil Procedure Law, "Article 92 Where the whereabouts of the person to be served are unknown, or if service cannot be served by other means provided for in this section, service shall be announced." Sixty days from the date of the announcement shall be deemed to have been served. "The time of delivery of the announcement is sixty days. The draft amendment this time stipulates: "Article 95 Where the whereabouts of the person to be served are unknown, or if service cannot be served by other means provided for in this section, service shall be announced." Thirty days from the date of the announcement shall be deemed to have been served. ”

In addition, with regard to "small claims", the revised draft clearly stipulates that "article 169:Small claims cases shall be concluded within two months from the date of filing the case." Where there are special circumstances that require an extension, it may be extended for one month with the approval of the President of this court. In other words, small claims are shorter than the general summary procedure.

The revised draft also stipulates that in principle, "small claims" should be heard at one time and adjudicated in court: "Article 168:In cases where small claims procedures are applied to trial, procedures such as prosecution, defense, summons, service, and trial and the content of judgment documents may be simplified, but the parties' procedural rights such as presenting evidence, cross-examining evidence, making statements, and debating shall be guaranteed." Small claims cases shall generally be concluded in one session and a judgment pronounced in court, except where the people's court finds it truly necessary to hold another hearing. "Such a provision is still quite stressful for the first-instance judge, but it does help to improve the efficiency of the trial of small claims cases."

In addition, with regard to the second instance, the revised draft also has some new provisions to improve efficiency.

First of all, the revised draft stipulates that judgments and mediation documents can also be served on litigants electronically, and for litigation cases in which the parties have agreed in advance to accept electronic service, the first-instance judgment can be legally served on the parties more quickly, shortening the actual waiting period for the relevant parties to file an appeal.

Second, the revised draft stipulates that when a court hears a second-instance case, it may also adopt the trial method of "one person serving alone" for adjudicators when it meets the requirements: "In a second-instance civil case in which the intermediate people's court or a special people's court applies the summary procedure to the first instance or appeals against the civil ruling, the facts are clear and the relationship between rights and obligations is clear, and the adjudicator-person may hear it alone." ”。 The current Civil Procedure Law clearly stipulates that "Article 40: People's courts hearing second-instance civil cases shall form a collegial panel composed of adjudicators." The number of members of the collegial panel must be singular. "This is also a big legislative breakthrough, which is conducive to the second-instance court to arrange the trial of the second-instance case faster."

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Generally speaking, this revision of the Civil Procedure Law is in line with the ongoing pilot reform of the adjudication function of the four-level courts, and its overall goal is to optimize the effectiveness and efficiency of the people's courts in civil adjudication functions.

However, for civil entities that may use or participate in civil litigation in the future (including legal person organizations such as natural persons and companies and enterprises), it is necessary to have a certain understanding and understanding of this change, and retroactively improve the relevant management system and risk prevention mechanism: on the one hand, if a dispute is to be resolved, more attention should be paid to the preparation for litigation in the first instance; on the other hand, it is necessary to more systematically and reasonably manage various systems and behaviors inside and outside to reduce unnecessary risks and disputes.