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Chapter 10 Questions and Answers about Marriage and Inheritance (9)
The legal representative of the plaintiff came to the court to sue in the name of the plaintiff, and when requesting a divorce from the defendant, he provided the medical certificate of the plaintiff's condition in a vegetative state issued by the people's hospital and the certificate issued by the neighborhood committee that the defendant's whereabouts were unknown.According to the medical certificate issued by the hospital, the plaintiff's brain no longer has normal thinking ability, which is equivalent to a person without capacity for civil conduct.A divorce case involving a person without capacity for civil conduct shall be litigated by his legal representative.Now that the plaintiff has his mother as the legal representative to file the lawsuit, this case should be accepted.

In order to determine whether the plaintiff has no capacity for civil conduct, the mental state of the plaintiff should be identified.Minors under the age of 10 and mental patients who cannot identify their own behavior are persons without capacity for civil conduct.In this case, the plaintiff is in a vegetative state, so the mental state and behavioral capacity of the plaintiff should be identified and evaluated, and the plaintiff is determined to be in a vegetative state and has no capacity for civil conduct.Therefore, this case can be litigated by the plaintiff's legal representative.

According to the statement of the plaintiff’s legal representative who lived with the plaintiff and the defendant, the defendant was keen on playing mahjong in 1998 and stayed away all night, and then ran away from home without authorization since 2000, reflecting the fact that the plaintiff and the defendant have lived separately; The evidence from the neighborhood committee of the defendant's place of household registration and residence also confirmed that the defendant had been missing for 4 years, and the relationship between husband and wife existed in name only.In view of the above, if one party has disappeared for more than two years, and the other party brings suit for divorce, but no trace can be found of the couple after public notice and an investigation, it shall be deemed that the relationship between the husband and wife has broken down.In this case, the court announced the search for the defendant. The defendant did not appear in court to respond to the lawsuit after the expiration of the announcement period, and his whereabouts were unknown for 2 years.

With the emergence of a large number of new types of cases, in order to improve the efficiency of case handling, some such as vegetative people and patients with cerebral palsy can be further clarified in legal regulations or judicial interpretations.

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Some people may not understand, how can a vegetable get divorced?In fact, a vegetative person, as a legally incapacitated person, can be represented by a legal representative in litigation for divorce, but at this time, the spouse of the vegetative person cannot be the legal representative of the vegetative person, because there are conflicts and contradictions in the interests of the divorced parties.

家庭
31. How to obtain evidence of domestic violence?

A female Guo used photos and text messages as evidence to confirm that her husband had committed domestic violence against her and sued for divorce.However, after hearing the case, a district court in a certain city dismissed the plaintiff Guo's claim on the grounds of insufficient evidence.

During the trial of the case, the plaintiff Guo Moumou claimed that during the 3 years they lived together, her husband He Mouman often abused and beat her. On August 2006, 8, a woman Guo sued the court for her husband's use of domestic violence, asking for a divorce and claiming 30 yuan for mental damage.

During the trial, Guo used the scars in the photos and the threatening text messages He sent to her as evidence.The husband, He Mouman, said that his husband and wife had a good relationship after marriage and did not commit violence.The relationship between the husband and wife has not yet broken down, they do not agree to divorce, and they expressed that they will pay more attention to and understand their wives in their future lives.

The court held that the foundation of the marriage between the two parties was relatively good.Although He admitted the authenticity of a photo provided by Guo, the photo was not enough to prove the fact that He beat Guo.In addition, He Mouman admitted that the text messages on his mobile phone were sent by himself, but the content was that He Mouman apologized to Guo Mou woman and asked her for forgiveness, and it was not a threat or intimidation to Guo Mou woman.Therefore, Guo's daughter demanded a divorce with insufficient evidence on the grounds that He Mounan committed domestic violence against her, which shows that the relationship between the two parties has not yet broken down.As long as the two cherish the relationship between husband and wife in their future lives, and correct their shortcomings and deficiencies, both parties can reconcile.Accordingly, the court made the above judgment.

Analysis according to law
Domestic violence has always been a problem that people are concerned about but can not be solved. On April 2001, 4, the No.28 meeting of the Standing Committee of the Ninth National People's Congress deliberated and revised the "Marriage Law of the People's Republic of China", which for the first time included domestic violence as a legal concept. Written into the provisions of the law, that is to say, for the first time, "carrying out domestic violence" is one of the legal conditions for adjudicating divorce when the court hears a divorce case, and it is clearly stipulated that the victim can file a private prosecution in the people's court or pursue the criminal responsibility of the perpetrator of the violence through public prosecution. .

Although the revised "Marriage Law" has 5 articles related to domestic violence, it does not clearly define what is domestic violence. On December 2001, 12, "The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (25)" made an authoritative definition of domestic violence: Acts of mutilating, forcibly restricting personal freedom, or other means that cause certain harm to the physical and mental aspects of family members."

When the courts deal with divorce cases caused by domestic violence, the more prominent problem they encounter is that there are different understandings of the determination of what constitutes violence.It is easy to identify the harmful behaviors with serious injuries, bad circumstances, and great harm, but it is difficult to grasp the general harmful behaviors.The author believes that domestic violence can be divided into three categories according to the degree of physical and mental damage caused by the results of domestic violence: (1) Mild violence, which refers to the frequent use of punches, kicks, sticks, etc. by the victimized spouse , although it does not constitute a crime of injury, it causes pain and traces of injury to the human body or causes people to be in a trance and produces psychological pressure.Mild violence must have a certain continuity in time, and violence once in a while does not belong to domestic violence.Generally there should be more than 3 times. (2) Moderate violence refers to a relatively serious beating or other forms of violence against the victim, which has caused minor injuries and constitutes a criminal offense. (3) Severe violence refers to inflicting serious beatings or other forms of violence on the victimized spouse, causing great physical injury or disability, or even death, which violates the criminal law.In trial practice, judges should determine whether domestic violence is constituted from the above aspects based on the specific circumstances of the case.

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Once domestic violence is determined, the party without fault at the time of divorce can file a claim for compensation.But the key is for victims to pay attention to collecting evidence.

1. First of all, we must discard the idea of ​​saving face. Once the other party uses violence, we must dare to open the door and try our best to let neighbors and residents’ committees know. This will not only effectively prevent further escalation of violence, but also obtain important witnesses.You can also ask your own side, or the other party's relatives and friends for help in time, and let them go to the scene or tell them about their misfortunes afterwards.

2. Be aware of calling the police. Once you are violently attacked, you must report to the police in time. The report records or interrogation records kept by the police station will be important evidence in the future.

3. If the body is violently injured, go to the hospital as soon as possible, and keep the inspection report, disability identification, etc., so that they can be used when filing a compensation claim with the other party in the future.

32. Under what circumstances can the court be requested to assist in the investigation and collection of evidence?
Liu and Wang had a lawsuit over the issue of child custody. Liu asked the court to change the child custody, and pointed out that the man often worked overtime and could not take good care of the child.In addition, Wang's family prevented Liu from taking the child away (with 110 police and neighbors' proof). Liu presented evidence and wanted someone to sign it, but the neighbors were unwilling, which made it difficult for Liu to provide evidence. Liu wanted to know that he could ask the court Help with proof?

Analysis according to law
In our country, the litigant evidence system is mainly based on the production of evidence by the parties and supplemented by the investigation and collection of evidence by the people's court. Article 17 of the "Regulations on Evidence" stipulates: "Where one of the following conditions is met, the parties and their agents ad litem may apply to the people's court for investigation and collection of evidence: ([-]) The evidence collected for investigation shall be preserved by the relevant state departments and the people's court shall ([-]) materials involving state secrets, commercial secrets, and personal privacy; ([-]) other materials that the parties and their litigation representatives cannot collect on their own due to objective reasons.

Accordingly, the parties only need to provide the court with the list of witnesses and their addresses.

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The following is a reference sample of the "Application for Court Investigation and Evidence Collection":
Application for court investigation and evidence collection

Applicant: name, gender, age, nationality, place of origin, work unit, current address, contact information.

Matters requested: Request the People's Court to inquire the amount of bank deposits of the defendant Wang in ×× Bank according to its authority.

Facts and reasons:
The claimant and Wang have filed a lawsuit in the People's Court and are currently in the process of seeking child support disputes.During the period when the applicant and Wang lived together, the economy was completely managed by Wang.Now Wang claims that during the time of living together, he did not leave any deposits, but in fact, the applicant's salary, bonuses, etc. are all handed over to Wang, so it is impossible to have no deposits.The applicant has seen the passbook of XX Bank at home, but has not seen the specific content.Based on the above facts, in accordance with the provisions of the "Marriage Law of the People's Republic of China" and the "Civil Procedure Law of the People's Republic of China", in order to protect the legal rights and interests of the applicant to the family property, I hereby apply to the People's Court to inquire about Wang's deposits in ×× Bank .

Sincerely,
×× City ×× District People's Court
Applicant: ××
××year××month××day

Attachment: The name of the evidence applied for investigation, the source of the evidence, the name of the witness, and the current address.

33. In the face of domestic violence, how to find witnesses?
Jiang Nu and He Nan registered their marriage in July 1999. Both parties were remarried. The son born to Jiang Nu and her ex-husband lived with the couple, and they had no children.Soon after He Nan got married, he beat and scolded his wife, Jiang Nu, because of trivial matters in life, and said that "the wife will not accept the beating".Jiangnu had a marriage history once, and she really wanted to keep this marriage going, so she has been silently enduring it.However, He Nan thought his wife was weak and could be bullied, and the beating and scolding of her continued to escalate. In September 7, He Nan beat and scolded Jiang Nv because he was dissatisfied with her housework, and tightly strangled her neck.Jiangnu went to the hospital the next day and was diagnosed with soft tissue contusion. In 1997, because she couldn't bear He Nan's beating and scolding, Jiang Nv took the child away from home and went to a friend's house for nearly two months. In June 9, He Nan suspected that Jiang Nv had taken 1999 yuan from him and beat and scolded Jiang Nv.

In March 2006, He Nan sued the court for divorce.

The court held that the relationship between Jiang Nu and He Nan had broken down, and both parties were willing to divorce, and this court approved it; Jiang Nu did not provide sufficient evidence that He Nan was at fault for the divorce, and this court did not accept it.Jiangnu refused to accept the verdict and appealed.With the help of lawyers, after investigation and evidence collection, the following evidence materials were collected:

1. The police station and the neighborhood committee at the place of residence testified that Jiang Nv was injured, and Jiang Nv claimed that she was raped by her servant;
2. Colleagues and leaders of Jiang’s women’s unit testified that Jiang’s women were often injured, and Jiang’s women claimed that they were raped by men; (three copies in total)

3. Jiang Nv’s friends testified that Jiang Nv said she could not bear He Nan’s beating and scolding, so she took the children to hide in her house for two months;
4. Li, He Nan's neighbor and a friend who grew up together, testified that Jiang Nu was often scarred. Jiang Nu claimed that He Nan did it, and proved that He Nan beat his ex-wife when he was married for the first time;

5. He Nan's stepson, the son of Jiang Nv, testified that his mother was often beaten and scolded by his stepfather.

Analysis according to law
The so-called procedure for witnesses to testify in court refers to the process of witnesses who know the circumstances of the case appearing in court to testify in court during the trial process, and they truthfully state the facts of the case they know to the court in the form of oral statements and accept interrogation by both parties. The methods, methods and steps that judges should follow when conducting cross-examination by way of inquiry, or by way of inquiry.my country's "Civil Procedure Law" only stipulates in item (124) of the order of court investigation in Article [-] that "inform witnesses of their rights and obligations, witnesses testify, and read out the testimony of witnesses who did not appear in court."This provision only clarifies the rights and obligations of the people's court to inform the witness before the witness testifies, but does not involve the specific operating procedures for the witness to testify in court.This issue has not received due attention from the theoretical circles and trial practice without mandating that witnesses must appear in court to testify.

《证据规定》对当事人双方在质证过程中涉及证人的规定共有6条（第53—58条），其中涉及证人出庭作证具体操作程序的规定就有3条（分别是第54、55、58条）。据此，我国民事诉讼中证人出庭作证的程序初具轮廓。具体可以概括为以下四个方面：

1. A party applying for a witness to testify in court shall submit the application 10 days before the expiry of the time limit for producing evidence;

2. The people's court shall examine the application of the party, and if it is approved, notify the witness to testify in court before the trial, and inform him that he should testify truthfully and the legal consequences of perjury;

3. After witnesses appear in court and before they testify, the judges must inform them of their rights and obligations to testify;
4. Witnesses shall be questioned by the parties and judges; when necessary, witnesses may be allowed to confront each other.

The above-mentioned principled and general provisions of the Civil Procedure Law and the Evidence Regulations, on the one hand, have solved the urgent needs in judicial practice, so that litigation activities such as witnesses appearing in court to testify and cross-examine evidence have laws to follow and rules to follow; on the other hand, On the one hand, due to the roughness and incompleteness of the relevant regulations, not only did various interpretations appear in practice, but also the phenomenon of randomness, omission or even loss of control in the specific procedural operations of witnesses appearing in court to testify.

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Since the testimony of witnesses is easily affected by many factors such as subjective and objective, there is a high possibility of untrue or intentional perjury, false testimony, etc., so the examination and judgment of witness testimony should focus on the following aspects:
First, examine the place and environment where the witness testifies and whether they are subject to external interference.It is necessary to find out in what place and environment the witness provided the testimony. Testimony in a relaxed environment (such as work unit, residence, etc.) is more authentic than testifying in a tense environment, otherwise the opposite is true; if the witness is threatened , temptation, deceit, or external interference such as instigation, bribery, etc., may provide false testimony, which should be carefully examined, especially attention should be asked and cross-examined during the court session, so as to find out the authenticity and reliability of the testimony.

Second, examine whether the witnesses and their relatives have any interest in the parties to the case (victims and defendants) and the outcome of the case.If there is a stake, the authenticity of the witness's testimony is small, and it may even be a false testimony; if there is no stake, the authenticity of the testimony is high, and the degree of reliability is high.

Third, examine the sources of witness testimony.It is necessary to find out how the witness learned about the relevant circumstances of the case, whether he directly felt it or learned it indirectly.Generally speaking, the authenticity of the testimonies provided by direct feeling (seen with eyes and ears) is relatively greater; while the testimonies provided by indirect knowledge (hearsay) are relatively less authentic.

Fourth, examine the witness's own perception ability (such as vision, hearing, etc.) and the objective environment (such as distance, light, time, etc.) factors at the time of the crime. These subjective and objective factors all have an impact on the authenticity and reliability of the witness's testimony. It must be carefully reviewed and judged carefully.

34. How is the identification of disabilities in domestic violence carried out?

The plaintiff, Dong Mou, is a fourth-grade physically disabled person. He married Zhou Mou 10 years ago and gave birth to a girl with a congenital disability after marriage.Zhou and his parents often beat and scolded Dong and her daughter. Years of violence left Dong covered in bruises.

Unable to bear the torture of violence and fear, Dong filed a lawsuit with a district people's court in a certain city on September 2006, 9, demanding a divorce from Zhou and compensation for personal injuries caused by domestic violence.The court ruled in the first instance to dissolve the marriage relationship between the two parties, but due to insufficient evidence, Dong's claim for compensation for domestic violence was not recognized.

So, how should the parties carry out the disability identification?
Analysis according to law
Disability appraisal refers to the forensic expert's comprehensive analysis of the complications and sequelae caused by intentional injury or accidental injury, and assessing the severity of the injury based on relevant standards.

If the party entrusts the appraisal, the person to be appraised should hold a power of attorney for judicial appraisal and carry medical records related to the injury (including outpatient medical record manual, inpatient medical records, various laboratory tests, disease certificates, discharge certificates, etc.), radiological imaging data (X-ray film, CT film, nuclear magnetic resonance film, etc.).The person to be appraised should be present with his or her valid certificate.

Regarding the degree of injury classification, currently the most widely used are serious injury, minor injury, and minor injury.

The criteria for assessing the degree of damage are:

1. The "Appraisal Standards for Human Severe Injury" jointly issued by the Ministry of Justice, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security and implemented on March 1990, 3;
2. The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued the "Appraisal Standards for Minor Human Injuries (Trial)" that was implemented on April 1990, 4;
The reference standards for disability ratings are:
1. "Assessment of Injured People in Road Traffic Accidents" issued by the Ministry of Public Security;
2. The General Administration of Quality Inspection and Quarantine of the People's Republic of China "Labor Ability Appraisal Workers' Work-related Injury and Occupational Disease Disability Grades";
As far as the domestic violence injury involved in this case is concerned, the special appraisal content of the judicial appraisal agency generally includes: (1) determining whether the injury exists (judgment of injury) and its nature (self-injury or other injury); (2) timely and accurately recording the victim’s (3) Judging the degree of injury to provide a basis for litigation in divorce, abuse and injury cases; (4) Testifying in court for abuse and injury cases at the request of the court.

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(End of this chapter)