Civil disputes 1: how to deal with civil disputes?

1. Proof: It is an important link in the litigation process to produce and produce evidence, or to produce evidence to prove something or situation.

In administrative proceedings, the defendant bears the burden of proof for specific administrative acts. 2. Burden of proof: It means that the parties have the obligation to collect or provide evidence for their claims, and have the responsibility to prove that the facts of the case they claim are established or beneficial to their claims with evidence, otherwise they will bear the risk that their claims are not established. The earliest appearance of the burden of proof system and the era of ancient Roman law. In the German common law era, the general principle was established, that is, the plaintiff provided evidence on the facts of his litigation, and the defendant provided evidence on the facts of the events he defended. And take the oath system as a supporting and supplementary system for judges to solve difficult cases.

Its implementation makes up for the deficiency of the current civil litigation evidence legislation. It standardized the practice of civil trial and laid the foundation for further civil legislation.

3. Appeal time limit: the legal time limit that the parties and their legal representatives must abide by when they appeal to a higher court if they refuse to accept the judgment or ruling of the court of first instance. The time shall be counted from the day after receiving the judgment or ruling. Fifteen days for civil judgment and ten days for civil ruling. If the last day of the period is a legal holiday or rest day, it shall be postponed to the day after the holiday or rest day ends.

4. Time limit for giving evidence: refers to the time limit stipulated by law or designated by the court or arbitration commission for the parties to give evidence effectively. The time limit for adducing evidence is an act that restricts the parties' appeal and litigation. If a party fails to submit evidence within the time limit prescribed by law or designated by the arbitration commission or the court, it shall be deemed as giving up the right to provide evidence. The arbitration commission that fails to provide evidence within the time limit will not organize cross-examination. Therefore, there is no need to cross-examine whether the overdue evidence is actually used as the basis for judgment. In addition, the Evidence Regulations also clarify that after the expiration of the time limit for adducing evidence, if the evidence submitted by the parties is not new, it will not be accepted. There are two forms to determine the time limit for adducing evidence in the Evidence Regulations, one is through consultation between the parties, and the other is designated by the people's court. Paragraph 3 of Article 33 stipulates that "if the people's court specifies a time limit for adducing evidence, the specified time limit shall be counted from the day after the party receives the notice of accepting the case and the notice of responding to the lawsuit, and shall not be less than 30 days." The validity period and calculation method of the time limit for adducing evidence designated by the people's court are clearly stipulated, but there are still different opinions on this provision in practice.

5. Limitation of action: the limitation of action for requesting protection of civil rights from the people's court is two years, unless otherwise stipulated by law.

6. Right of action: The complete connotation includes two aspects: procedural meaning and substantive meaning.

Procedural meaning refers to the right to request judicial relief from the court in procedure.

The substantive meaning refers to the right to request the protection of civil rights and interests or the settlement of civil disputes, that is, citizens have the right to request the court to agree to their specific legal status or specific legal effect in the entity.

According to the legal nature, the procedural litigation right is also called the right to sue, and its content is the elements of prosecution. In essence, the right of action is the right to require the court to use special trial means to enforce it. The subject of rights enjoys the right of action in the substantive sense from the time when the substantive legal relationship occurs; However, in order to realize this right, there must also be a procedural right to appeal.

The basic characteristics of the right of action: ① the exercise of the right of action must be based on the civil procedure law and the civil substantive law; (2) Equal enjoyment by both parties to the dispute; (3) Its exercise runs through the whole process of litigation; ④ Its contents include litigation rights and the right to satisfy litigation requests.

7. Civil disputes: refers to social disputes between equal subjects with civil rights and obligations as their content (disciplinable). It is the sum of legal norms dealing with personal relations and property relations between equal subjects, so all acts that violate this concept will cause civil disputes. Civil disputes are divided into two parts: one is about property relations, and the other is about personal relations. Its solution mechanism includes self-help, social relief and public relief.

Features: Civil disputes refer to social disputes (disciplinability) that occur between equal subjects and take civil rights and obligations as the content. It is the sum of legal norms dealing with personal relations and property relations between equal subjects, so all acts that violate this concept will cause civil disputes. Civil disputes are divided into two parts: one is about property relations, and the other is about personal relations. Its solution mechanism includes self-help, social relief and public relief.

Forms of expression: People will inevitably have various civil disputes in social life, such as divorce disputes, damage compensation disputes, housing property rights disputes, contract disputes, copyright disputes and so on. If civil disputes are not properly resolved, it will not only harm the legitimate civil rights and interests of the parties, but also affect the third party and even social stability. Therefore, all countries attach great importance to the settlement of civil disputes and have established corresponding systems to deal with civil disputes.

Settlement mechanism: the settlement mechanism of civil disputes refers to the links, methods and systems to eliminate civil disputes. According to the different dispute settlement systems and methods, the civil dispute settlement mechanism can be divided into the following three forms.

Self-help includes self-determination, reconciliation and self-psychological adjustment. It means that the subject of the dispute relies on its own strength to solve the dispute in order to safeguard its own rights and interests. Self-determination means that the subject of a dispute is obeyed by the other party by virtue of its own strength. Reconciliation refers to mutual compromise and concession. Can completely solve disputes, civilized but not protected by national laws * * * The same thing is that they all rely on their own strength to solve disputes, without the participation of third parties and without any norms.

(2) Social relief

Social relief, including mediation (mediation outside litigation) and arbitration. He is a mechanism that only relies on social forces to handle civil disputes.

Mediation means that a third party (mediation agency or mediator) comes between the two parties to the dispute to mediate and talk, and persuades the two parties to the conflict with certain legal norms and moral norms to urge them to reach an agreement on the basis of mutual understanding and mutual accommodation. Mediation agreement is neither legally binding nor strictly normative, but it is effective in the sense of contract. Arbitration is an arbitration institution selected by both parties to hear disputes and make an award. Arbitration is different from mediation, and the arbitration award is legally binding on both parties. However, arbitration, like mediation, is based on the wishes of both parties. Arbitration can only begin if both parties to the dispute reach an arbitration agreement and agree to submit the dispute to arbitration.

(3) Public relief

Public relief refers to litigation. Civil litigation refers to the court's activities to solve civil disputes through trial, judgment and execution with the participation of the parties and other litigation participants, and the sum of various litigation relationships arising from these activities. In the dynamic state, civil litigation is manifested as various litigation activities carried out by the court, the parties and other litigation participants, and in the static state, it is manifested as litigation relations arising from litigation activities. There is a guarantee of national compulsion and strict standardization.

8. Civil action: Civil action is a civil action, which refers to the activity that the parties bring a lawsuit to the people's court because of the conflict of civil rights or economic interests, and the people's court files a case for acceptance. The people's courts, with the participation of both parties and other participants in litigation, try and solve civil cases, economic disputes and special cases that are prescribed by law to be tried by the people's courts, as well as the sum of legal relations arising from these litigation activities. Generally speaking, when your personal and economic legitimate rights and interests are infringed, the parties concerned can punish the civil infringement and protect their legitimate rights and interests by playing a civil lawsuit. Characteristics of civil litigation (1) Public rights: Compared with other ways to solve civil disputes such as mediation and arbitration, civil litigation has the following characteristics: civil litigation solves disputes between equal subjects by judicial means, and the court exercises judicial power to solve civil disputes on behalf of the state. It is not only different from the people's mediation committees of mass autonomous organizations to solve disputes by mediation, but also different from the non-governmental arbitration committees to solve disputes by arbitration. ⑵ Mandatory: Mandatory is an important attribute of public power. The compulsion of civil litigation is embodied in the acceptance of cases and the execution of judgments. Mediation and arbitration are based on the wishes of the parties. As long as one party is unwilling to choose the above method to solve the dispute, mediation and arbitration cannot be carried out. Civil litigation is different. As long as the plaintiff's prosecution meets the conditions stipulated in the Civil Procedure Law, the lawsuit will occur whether the defendant is willing or not. The basis for performing the mediation agreement outside the lawsuit is

Depending on the consciousness of the parties, it is not mandatory, and the court's decision is different. If the parties do not automatically perform the obligations specified in the effective judgment, the court may enforce them according to law. (3) Procedural: Civil litigation is a litigation activity conducted in accordance with legal procedures. Whether it is the court, the parties or other participants in the proceedings, they should implement the proceedings in accordance with the procedures stipulated in the Civil Procedure Law. Violation of litigation procedures often leads to certain legal consequences.

If the judgment of the court is revoked by the higher court, the parties will lose the right to represent the lawsuit. The procedure of solving civil disputes outside litigation is weak, and there are no strict procedural rules for people's mediation. Although arbitration also needs to be conducted in accordance with the preset procedures, its procedures are quite flexible and the parties have greater procedural options.

Civil disputes and civil litigation

There are three main systems to solve civil disputes: mediation is that the third party (mediation agency or mediator) mediates and talks with both parties to the dispute, and persuades both parties to the conflict with certain legal norms and moral norms to urge them to reach an agreement to solve the dispute on the basis of mutual understanding and mutual accommodation. Mediation agreement is not legally binding, but it is effective in the sense of contract.

Arbitration: The arbitration institution selected by both parties shall hear the dispute and make a ruling. Arbitration is different from mediation, and the arbitration award is legally binding on both parties. However, arbitration, like mediation, is based on the wishes of both parties. Arbitration can only begin if both parties to the dispute reach an arbitration agreement and agree to submit the dispute to arbitration.

Civil litigation; It refers to the court's activities to solve civil disputes by means of trial, judgment and execution with the participation of the parties and other litigation participants, as well as the sum of various litigation relations arising from these activities. In the dynamic state, civil litigation is manifested as various litigation activities carried out by the court, the parties and other litigation participants, and in the static state, it is manifested as litigation relations arising from litigation activities.

Civil procedure law: Civil procedure law is one of the basic departmental laws of the country, and civil procedure law and arbitration law are important subjects in China's legal system. It is rich in content, involves a wide range, is practical, and plays an important role in social life.

Civil litigation evidence: refers to objective factual materials that can prove the true situation of civil cases. There are three basic characteristics of evidence in civil litigation (1). Objectivity means that factual materials as civil evidence must exist objectively. That is to say, as evidence fact, it is not transferred by anyone's subjective will. It appears in the objective world in a real rather than illusory, objective rather than imaginary way, and can be recognized and understood by people. Therefore, on the one hand, the parties are required to provide real evidence to the people's court when giving evidence, and they are not allowed to forge or tamper with the evidence; Require witnesses to testify truthfully, and shall not commit perjury; The appraisers are required to provide scientific and objective appraisal conclusions. On the other hand, the people's court is required to investigate and collect evidence objectively and comprehensively, and preconceptions are not allowed; The people's court shall examine and verify the evidence objectively. (2) Relevance means that civil evidence must be intrinsically related to the facts to be proved in the case. In other words, only the factual materials that help to identify the facts of the elements have legal significance. The relevance of such factual materials is generally manifested in two forms: direct contact, for example, the facts reflected by the factual materials themselves are part of the facts to be proved; Indirect connection, such as facts reflected in factual materials, can indirectly prove the establishment of a fact to be proved. (3) Legitimacy means that the factual materials that are the basis for the finalization of civil cases must conform to the legal forms of existence, and the applicable processes and procedures such as obtaining, providing, examining, preserving, appraising and cross-examining evidence must also conform to the legal provisions.

The forms of evidence in China's civil litigation can be divided into seven types: documentary evidence, material evidence, audio-visual materials, witness testimony, statements of the parties, expert conclusions, and transcripts of inquests. (1) Documentary evidence refers to the evidence to prove the facts of a case by words, symbols, graphics and other recorded contents or expressed ideas. This kind of article is called documentary evidence, not only because it appears in written form, but more importantly, what it records or expresses can prove the facts of the case. Specific forms of expression, common contracts, documents, bills, trademark patterns and so on. Therefore, the main forms of documentary evidence are various written documents, but sometimes it is also various items. Documentary evidence is a kind of evidence widely used in civil litigation and plays a very important role in civil litigation. (2) Material evidence refers to evidence that proves the facts of a case by its shape, quality, specifications and characteristics. Physical evidence proves the true situation of the case through its external characteristics and its own attributes, and is not influenced and restricted by human subjective factors. Physical evidence has irreplaceable specificity. Physical evidence, as an objective and concrete object and trace, has its unique characteristics and is specifically aimed at a specific object. So it can't be replaced by other items or similar items, otherwise it can't keep its original characteristics. The Civil Procedure Law clearly stipulates: "The original material evidence must be submitted." Only when it is really difficult to submit the original, "copies and photos can be submitted", but all the characteristics of the submitted copies must be the same as the original, and the photos can only reflect the real situation of the original. These reproductions and photos are only ways to fix and preserve the original, and the original items and traces are still used as physical evidence, not reproductions and photos. (3) Audio-visual materials refer to evidence that proves the facts of a case by using audio and video recordings, information and data stored in an electronic computer, etc. Although audio-visual materials are vivid and easy to use and save, they can not be used as absolutely reliable evidence because they can be forged and transformed by splicing. Therefore, audio-visual materials need comprehensive review and analysis. According to Article 22 of the Evidence Regulations: "When investigating and collecting audio-visual materials such as computer data or audio and video recordings, investigators shall require the respondents to provide the original carriers of relevant materials. If it is really difficult to provide the original carrier, a copy can be provided. If a copy is provided, the investigator shall explain its source and production process in the investigation record. " When examining audio-visual materials, the people's court shall find out the source, time and place of recording, content and purpose of recording, personnel involved in recording, whether the recorded images and sounds are true, and the custody and preservation of audio-visual materials. Any audio-visual materials that have been eavesdropped, secretly recorded, edited, tampered with or distorted in content cannot be used as evidence in litigation. (4) Witness Testimony A witness refers to a person who knows the facts of a case and is summoned by the court to testify in court at the request of a party. The statement made by the witness to the court about the facts of the case is called witness testimony.

Witnesses stipulated in China's civil procedure law include units and individuals. That is, all units and individuals who know the case are obliged to testify in court. Witness testimony has three characteristics: first, witness testimony is provided by people who know the facts of the case. Second, the witness testimony only includes the statement of the facts of the case by the person who can correctly express his will. Thirdly, the authenticity and reliability of witness testimony are influenced by many factors. As a natural person, the witness's perception of the facts of the case is restricted by various subjective and objective factors. Therefore, the witness's testimony may be true or false, and the judge should use other evidence to confirm it as much as possible. Only when it is verified can it be used as the basis for determining the facts of the case. There are two forms of witness testimony: (1) oral form refers to the statement of the facts of the case made by the witness to the court. This form is the basic form of witness testimony. In the trial practice, most witnesses make oral statements to the court, and witnesses testify mainly through oral questioning in court, mainly to facilitate cross-examination and confirmation in court. According to the provisions of evidence, if a party applies to the people's court to require a witness to testify in court, it shall do so ten days before the expiration of the time limit for adducing evidence and obtain the permission of the people's court. The name and address of the witness must be specified so that the court can summon the witness. Although the parties have not filed an application, the court can summon witnesses on its own initiative in order to find out some facts of the case. (2) Written form means to state the known facts of the case to the people's court in written form. The principle of witness testimony is to appear in court for oral inquiry, but if "it is really difficult for the witness to appear in court", the witness may submit written testimony with the permission of the people's court. Written testimony should be read out in court and listen to the opinions of the parties. However, it should be noted that written testimony should not be regarded as "documentary evidence", but a form of expression of "witness testimony".

Witness testimony should be the objective information related to the case heard and witnessed by witnesses, that is, the facts and controversial facts that cause the occurrence, change or elimination of civil legal relations. As long as the testimony provided by the witness can clearly state these facts, the witness is not required to make a subjective evaluation of these facts. Therefore, the facts unrelated to the case stated by the witness should not be used as the content of testimony; Nor can the analysis and understanding of witnesses or legal evaluation be used as evidence. Witness testimony should be what you saw and heard personally. If it is the so-called hearsay testimony that others have seen or heard, it cannot be used as the content of witness testimony. When analyzing witness testimony, the people's court must also find out the identity of the witness and its relationship with the parties. Then, carefully analyze and study the subjective and objective factors of witnesses. As for the subjective factors of the witness, we should consider his cultural level, his understanding of things, his cognitive ability and expressive ability. As far as its objective factors are concerned, we should consider the objective environment of the witness at that time. When analyzing and judging the testimony of witnesses, we should comprehensively analyze and study all the cases and other evidence. Only in this way can the authenticity and validity of the testimony be determined. 5] The statement of the parties refers to the statement made by the parties to the court on the facts related to the case in litigation. The parties are the main body of the legal relationship in civil litigation. Because it has a direct interest in the outcome of the lawsuit, the statements of the parties are true and false. Therefore, when using this evidence, the judge should pay attention to prevent false evidence as the basis for determining the facts of the case, and review and verify the statements of the parties in combination with other evidence in this case to determine the basis for determining the facts of the case. The people's court's judgment on the reliability of the statements of the parties must be based on all cases and other evidence. When judging recognition, we must examine whether recognition is voluntary. If there is fraud, malicious collusion and major misunderstanding, it is impossible to determine the validity of the determination. [6] Evaluation conclusion

An appraiser refers to a person who is hired or appointed to use his own expertise to conduct scientific research on difficult problems in a case and make legally binding conclusions. In China's civil litigation theory, it is generally believed that the appraiser is a participant in the litigation. And in a sense, the appraiser is the judge's helper. In foreign countries, experts are generally included in the category of witnesses, which is called expert witness (7). The record of inquest refers to the behavior that the judicial personnel of the people's court personally conduct an inquest, take photos and measure the scene, articles or objects related to the case dispute in order to find out certain facts in the course of litigation. The record of the inspection situation and results is called the record of inspection. The record of inquest is an independent evidence, and it is also a method to fix and preserve evidence. The record of inquest is to explain the facts of a case with words, charts and other recorded contents.