How to prosecute in civil litigation

When a party brings a lawsuit due to a civil dispute, it must prepare a complaint and evidence related to the case and submit it to the people's court with jurisdiction. Also pay attention to the legal conditions for prosecution: the plaintiff must have a direct interest in the case, must have a clear defendant, and must have specific litigation requests, facts and reasons.

There are two ways of prosecution stipulated in the Civil Procedure Law: written prosecution and oral prosecution. A civil action brought against a citizen shall be under the jurisdiction of the people's court of the defendant's domicile; 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. The prosecution must meet the following conditions: the plaintiff is a citizen, legal person and other organization that has a direct interest in the case; There is a clear defendant; There are specific requests, facts and reasons; It belongs to the scope of civil litigation accepted by the people's court and the jurisdiction of the people's court under appeal.

Step 1: Preparation before filing a case

I. Fixed evidence and prepared evidence

1. Identification

Can prove the identity information of the plaintiff and the defendant. Different cases provide different information. Individuals generally include identity cards, temporary residence permits or residence permits, household registration books, birth certificates, kinship certificates and residence certificates. Enterprises or other organizations generally include photocopies of photos of business executives with official seals, photocopies of organization codes with official seals, tax registration certificates or other qualification certificates, and identification certificates of legal representatives. If the basic information of the enterprise (printed version of the website of the industrial and commercial bureau) has been combined into one, just provide a copy of the business license stamped with the official seal.

2. Evidence to prove legal relationship

Generally including contracts, agreements, IOUs, IOUs, marriage certificates, divorce certificates, statements, delivery notes and other electronic evidence.

3. Auxiliary evidence

Transfer certificate, goods list, house ownership certificate, various certificates, etc.

Second, write a complaint

1. The prosecution shall submit a complaint to the court, and submit a copy according to the number of defendants+the number of courts. The principle of defendant+1

2. How to write the complaint?

(1) Identity information of plaintiff: name, gender, age, nationality, occupation, work unit, address and contact information, name and address of legal person or other organization, name, position and contact information of legal representative or principal responsible person;

(2) The identity information of the defendant: name, gender, work unit, address and other information (usually need to know the ID number), the name and address of the legal person or other organization and other information (also need to print a copy of the basic information of the enterprise on the enterprise credit network of the province and city where it is located);

(3) Creditor's rights; What are the requirements for the defendant in order to prosecute? How? .

(4) Facts and reasons: Why do you ask the defendant to do something or why do you want him to do it? Everything serves the litigation request.

(5) List of evidence: Usually, the court requires you to provide a list of evidence, indicating whether it is an original or a copy.

The second step is to go to the competent court for prosecution.

If there is no agreement on the jurisdiction of the court, it shall generally be under the jurisdiction of the court where the defendant is located. The defendant's location includes the domicile (the address on the ID card) and the place where he has lived for one year, that is, the habitual residence. (Except medical treatment) However, according to the provisions of judicial interpretation, contract disputes such as sales and loans can be prosecuted at the plaintiff's place or the defendant's place. (Note) Generally, the above situation can be solved. Cases under the exclusive jurisdiction of the court shall be submitted in the court prescribed by law.

The third step: the court accepts.

In accordance with the provisions of the registration system, those who can file a case on the spot will be accepted on the spot, and those who can't file a case on the spot will be registered first, and the supplementary materials will be informed at one time. Those who meet the statutory conditions shall file a case within 7 days. Do not meet the statutory conditions, ruled that it will not be accepted within 7 days. After accepting the case, the legal fees shall be paid within seven days, otherwise the lawsuit shall be deemed to be withdrawn automatically. If the case requires property preservation, an application for property preservation and an application for guarantee may be submitted together with the preservation fee.

Step 4: serve a copy of the summons and complaint.

1. Mediation is very popular recently. The general court requires mediation first. If mediation fails, it will be turned into litigation. The mediation date is 30 days.

2. If mediation is not conducted, a lawsuit will be filed within/kloc-0.5 days to about two months after the case is filed, and the service will be arranged. They will be delivered by ordinary telephone, so that the defendant can get a subpoena from the court. If the defendants don't go, they will be served by mail, reservation or electronic mail.

If the above cannot be delivered, the announcement will be delivered. In addition, if the whereabouts of the addressee is unknown, or it cannot be served by other means, it shall be served by public announcement. Sixty days after the announcement, it shall be deemed to have been delivered. When served on the defendant, the trial time will be fixed.

Step 5: Inform the plaintiff of the court session time.

After the plaintiff knows the time of the trial, he must go, otherwise he may be dismissed. If the defendant does not appear in court, he will be tried in absentia. Means giving up the right of reply.

Notify the parties by summons three days before the court session, and notify other participants in the proceedings. 3 days before the court session, the names of the parties, the cause of action, the time and place of the court session shall be announced.

Send a copy of the complaint to the defendant within 5 days, and the defendant shall file a reply within 15 days and send a copy of the reply to the plaintiff within 5 days. The content of the defense must be based on the facts, reasons and evidence put forward by the complainant, and focus on the defense and rebuttal, and submit relevant evidence.

Step 6: Conduct the experiment:

(a) check the identity information of the parties:

The plaintiff sits in the plaintiff's seat and the defendant sits in the dock. Be sure to see it clearly. The clerk verifies the identity information of both parties, including information such as work unit, position and current address. After verifying the information, the general clerk will signal the judge to open the court.

(2) court investigation:

(1) Generally, the plaintiff is allowed to clarify the claim and briefly state the facts and reasons. At this time, if you want to change the claim, you must change the claim in time.

(2) The defendant commented on the plaintiff's claim and stated the facts and reasons.

(3) The court asks the plaintiff, the defendant or a third person about the facts of the case according to the facts of the case.

(3) Cross-examination of evidence

1. The plaintiff listed the evidence to prove his claim. The defendant gave a cross-examination opinion on the evidence presented by the plaintiff, and a third party conducted cross-examination.

2. The defendant presents the evidence, the plaintiff gives the cross-examination opinions, and the third party conducts cross-examination.

3. When the third party produces evidence, the plaintiff puts forward cross-examination opinions, and the defendant puts forward cross-examination opinions.

(4) Court debate

The parties and their agents ad litem argue and finally argue with each other.

Mediation can be conducted before the judgment, and mediation can also be conducted. If mediation fails, a judgment shall be made in time.

The presiding judge shall solicit the final opinions of all parties in the order of plaintiff, defendant and third party.

(5) Court review:

After the court debate, the presiding judge announced an adjournment, and both parties signed the transcript. When reading the transcript, they only need to see whether what they say is recorded or whether the meaning expressed is consistent. Every page needs to be signed, and the last page should be signed and dated.

Step 7: Issue the judgment.

The people's court shall pronounce a judgment in public on cases that are tried in public or not. If a verdict is pronounced in court, it shall be served within ten days; If the sentence is pronounced regularly, a written judgment will be issued immediately after the sentence is pronounced.

When sentencing, the parties must be informed of the right of appeal, the time limit for appeal and the court of appeal. When a divorce judgment is pronounced, the parties concerned must be informed that they may not get married separately before the judgment becomes legally effective. The appeal period is 15 days after receiving the judgment, or 10 days if it is ruled.

Step 8: Appeal

1. The appeal shall be submitted according to the number of defendants in the first instance (the contents of the appeal shall include the names of the parties, legal persons and their legal representatives or other organizations and the names of their principal responsible persons; The name, case number and cause of action of the people's court that originally tried the case; The request and reasons for the appeal) and a copy of the judgment or ruling, and pay the litigation costs.

2. The parties can appeal directly to the second instance or through the people's court of first instance. In real life, most of them appeal through the court of first instance.

3. The people's court shall conclude the appeal case against the judgment within three months from the date of filing the case in the second instance. If there are special circumstances that need to be extended, it should be approved by the president of our hospital.

When the people's court hears an appeal case against the ruling, it shall make a final ruling within 30 days from the date of filing the case of second instance.

Step 9: Apply for enforcement.

1. If the defendant fails to perform the effective judgment, the plaintiff may apply to the people's court for enforcement. To apply for enforcement, an application for enforcement and a judgment of second instance shall be submitted. And provide identification information during the preliminary examination.

2. Generally, after filing a case, you can check who the executive judge is about 15 days, and then communicate with him about the execution.

3. If the people's court fails to execute the application for execution for more than six months from the date of receiving the application for execution, the person against whom the application is made may apply to the people's court at the next higher level for execution. After examination, the people's court at a higher level may order the original people's court to execute it within a certain period of time, or decide to execute it by itself or instruct other people's courts to execute it.

4. Execution termination This execution must meet five conditions at the same time, otherwise the termination program cannot be started.

1. An enforcement notice has been issued to the person subjected to execution, and the person subjected to execution has been ordered to report the property;

"Ordering the person subjected to execution to report the property" means that the following items shall be completed:

(1) Issue a property report order to the person subjected to execution;

(2) Checking the property declared by the person subjected to execution;

(3) If compulsory measures such as fines and detention are taken against the person subjected to execution or the relevant personnel who fail to report, refuse to report or make false reports within the time limit, which constitutes a crime, criminal responsibility investigation procedures shall be initiated according to law.

2. A consumption restriction order has been issued to the person subjected to execution, and the qualified person subjected to execution has been included in the list of the person subjected to dishonesty;

(1) When it is forbidden to take the means of transportation, choose the cabin above the second class of airplanes, trains and ships;

(two) prohibit high consumption in hotels, hotels, nightclubs, golf courses and other places above the star level;

(3) It is forbidden to buy real estate or build, expand or decorate high-quality houses;

(four) it is forbidden to rent high-grade office buildings, hotels, apartments and other places to work;

(5) It is forbidden to purchase vehicles that are not necessary for operation;

(6) travel and vacation are prohibited;

(7) Private schools that prohibit children from charging high fees;

(8) It is forbidden to pay high premiums to buy insurance wealth management products;

(9) It is forbidden to take all the seats of the G-prefix EMU train, the first-class and above seats of other EMU trains, and other consumption behaviors that are not necessary for life and work.

(10) If the person subjected to execution is a unit, the person subjected to execution, its legal representative, principal responsible person, person directly responsible for debt performance and actual controller shall not carry out the acts specified in the preceding paragraph after taking measures to restrict consumption. Anyone who uses personal property for private consumption to commit the acts mentioned in the preceding paragraph may apply to the enforcement court for enforcement. If the examination by the enforcement court is true, it shall be allowed.

legal ground

Article 3 of the Civil Procedure Law of People's Republic of China (PRC)

The provisions of this Law shall apply to the people's courts in accepting civil lawsuits brought by citizens, legal persons, other organizations and among them because of property relations and personal relations.

Article 122

Prosecution must meet the following conditions:

(1) The plaintiff is a citizen, legal person and other organization that has a direct interest in the case;

(2) Having a clear defendant;

(3) Having specific requests, facts and reasons;

(4) It falls within the scope of civil litigation accepted by the people's court and is under the jurisdiction of the sued people's court.

Article 123

The prosecution shall submit a complaint to the people's court, and submit copies according to the number of defendants. If it is really difficult to write a complaint, it can be made orally, which will be recorded by the people's court and the other party will be informed.