legal master

Chapter 11 Questions and Answers about Marriage and Inheritance (10)
For domestic violence cases, the key is for victims to pay attention to collecting evidence.First of all, we must get rid of the view of sympathy. Once the other party is violent, open the door and let the neighbors and the cadres of the neighborhood committee know as much as possible. This is evidence.At the same time, there must be a sense of calling the police, and the transcript of the police station's interrogation is another important evidence.Furthermore, if the body has been injured, it is necessary to go to the identification agency or hospital for injury examination in time and leave the injury examination report, disability identification, etc.These evidences can also be used as the basis for the division of more property by the injured party during divorce.

35. How to collect and use evidence in maintenance cases?
Sun Mou started working in the early days of liberation. In 1960, he voluntarily resigned and returned to the countryside to work in agriculture.The couple have two sons and two daughters.The daughter married out, and the son lived alone after marrying a daughter-in-law.Sun suffers from senile asthma in his later years, and suffers from asthma every winter, which is not only painful, but also costs a lot of medical expenses.Due to illness, the farmland cannot be worked, and the two sons are only given rations every year, and the rest are ignored.The huge medical expenses spent by the elderly can only be reimbursed by the county and township for tens of yuan a year, and the rest is all raised by themselves. Life is really helpless.

Analysis according to law
Protecting the legitimate rights and interests of the elderly is a basic principle of my country's Marriage Law. The "Marriage Law" stipulates that children have the obligation to support and support their parents. When children fail to fulfill their support obligations, parents who are unable to work or have difficulties in living have the right to require their children to pay maintenance.There is no time limit for children to support and support parents. As long as parents need support and support, children must consciously fulfill their obligations.When the child fails to perform, the parents can directly ask the child to perform, or ask the relevant organization to persuade the child, or file a lawsuit to the people's court for alimony through litigation procedures.Such cases should provide the following evidence:
1. Evidence of the supporter's health status, economics, residence, etc.;
2. Proof of the child's support to the dependent;

3. Proofs of their income, residence, etc.;
4. Proof of how many adult children the supporter has;
5. Other evidence.

tips

Key points for proof in alimony, fostering and adoption cases:

1. Supporters are required to provide their own actual working ability; whether they have a source of income; how many support obligors there are, their respective economic status and fulfillment of support obligations and other supporting materials.

2. If it is required to increase the childcare fee, it is necessary to provide proof materials such as the increase in economic income of the party paying the childcare fee or the need for an increase in the childcare fee due to illness or schooling.

3. If it is required to change the custody relationship of the children, it is necessary to provide the proof materials that the children are willing to live with a certain party, and the proof materials of the reasons for requesting the change of the custody relationship.If the parenting relationship is changed and the parenting fee is required to be paid at the same time, the other party's economic income and other supporting materials shall also be provided.

4. If it is required to confirm the adoption relationship, the adoption agreement must be provided; if there is no adoption agreement, the residential committee or village committee must provide proof of the factual adoption relationship and the household registration certificate issued by the police station.

5. If it is required to terminate the adoptive relationship, it is necessary to provide evidence proving the existence of the adoptive relationship, and at the same time provide evidence such as the reasons and reasons for the termination of the adoptive relationship.If property division is involved, a list of personal and family joint property should also be provided, and if there is any dispute over the property, proof materials of the source of the property should be provided.

36. In a custody case, how should the parties collect evidence?

Mr. Qin and Ms. Lin had an extramarital affair and gave birth to a son.Ms. Lin decided to artificially feed her son, but she was opposed by Mr. Qin, who loves her son deeply, and a conflict arose between the two parties.

In September 2006, Mr. Qin brought Ms. Lin to court with a petition, requesting to change the custody of the child.In order to keep her son by her side, Ms. Lin fought hard in court.She said that Mr. Qin has his own family and daughter, and having a child born out of wedlock to live with his family members is bound to be detrimental to the child.In addition, due to his illness, he was unable to breastfeed.Moreover, Mr. Qin is busy with work and has no time to take care of the child. Since the child was born, he has not fulfilled his duty to raise the child.In addition, I have bought a house in Shanghai and started a family, and my parents and husband are willing to raise the children together, so I already have all the conditions to raise the children.

After the trial, the court held that both parties in this case had other families and had the ability to raise their children. However, considering that the child was under 2 years old and had lived with his mother since birth, Ms. Lin had fulfilled her duty of raising her as a mother. The child's living environment is not conducive to its development.Therefore, the court believes that it is appropriate to maintain the status quo that the child is brought up by the mother, Ms. Lin.

Analysis according to law
Our country's marriage law stipulates that parents have the obligation to raise and educate their children, and children have the obligation to support and support their parents.If the parents or children refuse to fulfill this obligation, one party has the right to require the other party to pay child support and alimony.It should be noted that the children here refer to those who are underage or unable to live independently, and the parents refer to the parents who are unable to work or have difficulties in life.If parents or children refuse to pay child support or alimony, the parties concerned can mediate through mass organizations to make obligors consciously fulfill their legal obligations.If the mediation fails, the obligee may appeal to the people's court for settlement, or directly sue the people's court (without mediation), and the court will make a judgment to pay the parents or children child support or alimony.If the party refuses to execute the court's judgment, the court may take civil coercive measures to force the party to perform.

tips

In divorce cases, many cases involve disputes over child custody.There are two types of them: one: truly love children and are willing to live with them; the other is to use children as bargaining chips in order to obtain real estate or more property.

As for the skills of fighting for custody, first of all, the evidence collection of the basic conditions of both parties.The basic conditions of the husband and wife, such as differences in salary, educational background, etc. For example, the ideological quality of one party is particularly important in fighting for child custody, because the ideological quality of the directly raising party will directly affect the healthy growth of the next generation.Therefore, it is more important to obtain evidence in this regard.

Secondly, the evidence collection of the basic conditions of both parents.In many cases, children are often not brought up by either spouse, especially for preschool children, they are often brought up by one parent.Therefore, the child's past living environment, as well as the opinions and physical conditions of the parents who have been taking care of the child for a long time, are often an important aspect that affects the child's custody rights.

Furthermore, the evidence collection of the child's living environment.The principle of handling child custody issues in divorce cases is not to affect the healthy growth of children.If the two parties divorce, but one party is closer to the school, or the living area is mature, it is most beneficial for the child to go to school and live, and of course the possibility of obtaining child custody will be greater.Therefore, evidence collection in this area is also necessary.

In the end, the child's opinion matters a lot.Generally, when dealing with custody issues, the court will listen carefully to the opinions of children over the age of 10 and record them in the case file.Before or during the divorce process, it is particularly important to do a good job in the ideological work of the children so that the children are willing to live with themselves.

37. What is a declaration of death?How to prove the declaration of death?

On December 2000, 12, Jiang and Zhao registered their marriage. In April 19, Mr. Jiang disappeared suddenly. After many searches, there was no whereabouts. In 2001, her husband, Zhao, filed a lawsuit for divorce, and the court ruled that Zhao and Jiang were divorced according to law. At around 4:2002 on December 2006, 12, a bone of bones was found on Dahu Mountain in the village.After reporting the case, the public security organ quickly sent police officers to the scene for investigation, and some items were found around the bones. It was confirmed that these items (including the phone book, etc.) were carried by Jiang before his disappearance.At this time, the parents who had waited for six years were discouraged and applied to the court to declare Jiang's death.

Analysis according to law
Declaring death refers to the system in which the people's courts presume the death of missing citizens who meet certain conditions and pass certain legal procedures.Article 167 of my country's "Civil Procedure Law" stipulates: "The whereabouts of a citizen has been unknown for four years, or the whereabouts of a citizen has been unknown for two years, or the whereabouts of the citizen has been unknown due to an accident. Where the death is declared, it shall be submitted to the basic people's court at the place where the missing person resides." The applicant for declaring the death of a citizen must be an interested party of the missing person, and their order is: (1) spouse; (2) parents, children; ( 3) Brothers and sisters, grandparents, maternal grandparents, grandchildren, maternal grandchildren; (4) Other persons with civil rights and obligations.However, the application for revoking the death declaration is not limited by the order listed above.

The death of a natural person marks the annihilation of his capacity for civil rights.Therefore, determining the death of a person has great legal significance.Judging from legal provisions, the death of a natural person can be divided into natural death and declared death.In addition, the law also provides for the declaration of missing persons system.The effect of declaring death is the same as the effect of natural death.The declaration of disappearance can lead to the occurrence of certain legal facts and changes in property relations.

There are two main reasons for the establishment of these two legal systems by the General Principles of Civil Law: First, because the whereabouts of the property owners are unknown, the property is left unmanaged.Declaring death can transfer the property ownership, protect the property from loss, and protect the interests of the property manager; declaring missing can entrust the property to others, which is conducive to protecting the rights of the property owner, legal heir, and property manager. Second, the establishment of these two systems can also clarify the rights and obligations of the missing person such as creditor's rights and debts, so that they can enjoy their due rights and undertake their obligations, so that many things will not be delayed for a long time.This will also help the courts handle civil disputes and ensure social stability.

tips

The following is a reference sample of the Application for Declaration of Death:
application for declaration of death

applicant:
Respondent: name, gender, age, nationality, place of origin, occupation or unit, residence
Request:

Facts and reasons:
Sincerely,
××× People's Court
Applicant: ×× (signature or seal)

×year×month×day

Attachment: name and quantity of evidence.

38. What evidence is required to apply for declaring a family member incapable of civil conduct?
The applicant claimed that: the respondent Zhang has been in a state of confusion since the surgery on April 2003, 4, and he has been incontinent in expression and incontinence.It is required to declare him as a person without capacity for civil conduct.

After the trial, the court found that: the respondent Zhang Moumou underwent cholecystectomy by the Municipal First Hospital on April 2003, 4. After the operation, he suffered from confusion, language barriers, fecal incontinence and occasional short-term limb convulsions. , so far unable to distinguish relatives and friends. On July 21, 2006, the respondent was diagnosed as hypoxic encephalopathy and symptomatic epilepsy, and was in a hazy state of consciousness.In addition, the respondent and the applicant are in the relationship of mother and daughter, and the designated agent of the respondent is in the relationship of husband and wife.

The above facts are proved by the following evidence:
1. The brief medical history of the respondent Zhang XX made by the Municipal First Hospital on September 2005, 9;
2. The medical certificate of the respondent Zhang XX issued by the Municipal First Hospital on July 2006, 7;

3.2006. On July 7, 12, the Municipal First Hospital made a written statement of the respondent Zhang's condition to the court;
4. The certificate of kinship between the parties in this case issued by the Municipal Public Security Bureau Police Station on June 2006, 6.

Based on the above-mentioned facts and evidence, the court held that the current symptoms of the respondent Zhang Moumou met the constitutive requirements of a person without capacity for civil conduct.

Analysis according to law
Article 13 of my country's "General Principles of Civil Law" stipulates that a mentally ill person who cannot distinguish his own behavior is a person without capacity for civil conduct. Article 5 of the "Mintong Opinions" stipulates that if a mental patient (including a person with dementia) has no judgment ability and self-protection ability, and does not know the consequences of his behavior, he can be identified as a person who cannot recognize his own behavior.Therefore, there is no doubt that mental patients and people with dementia can be identified as persons without capacity for civil conduct, but whether a vegetative person is also a mental patient or a person with dementia who cannot distinguish their own behavior is the first case encountered in this case. question.From the perspective of neuromedicine, psychiatry refers to symptoms of abnormal sensation, memory, behavior, etc. due to brain dysfunction; dementia refers to a clinical syndrome of comprehensive cognitive impairment in conscious people; The state refers to the absence of any conscious activity of the patient, lack of perception, thinking, emotion, and symptoms of purposeful movement.From the aforementioned concepts, it is not difficult to draw the conclusion that vegetative people, mental patients and dementia patients cannot be confused in medicine.

Whether the respondent in this case, as a vegetative person who falls under the two statutory symptoms of mental illness and dementia, can be identified as a person without capacity for civil conduct is another issue to be resolved in this case. It should be said that there is no express provision in the law at present .After exploring the legislative intent and logical structure of the above provisions, the court of this case gave an affirmative answer to this question: First, from the perspective of the legislative purpose of establishing this system in various countries, no matter the declaration or revocation of the capacity of a civil subject is Effectively protect the interests of individuals (mainly property interests) and prevent the rights and interests of subjects lacking in capacity from being placed in an unequal state. Therefore, the legislative intent should exclude the interpretation that the civil subjects identified as lacking in capacity are limited to certain types of people.Second, from the perspective of logical analysis, the two concepts of "person without capacity for civil conduct" and "mental patient" in the clause "a mentally ill person who cannot distinguish his own behavior are persons without capacity for civil conduct" should belong to the Contains and is contained, not equivalence.That is to say, this provision only stipulates a certain situation of persons without capacity for civil conduct at this time. As for civil subjects other than legal symptoms (such as the vegetable in this case), it is not logically excluded of course. outside the scope of application of the above terms.The aforementioned principle may be understood by the example that "a white horse is a horse" cannot rule out "a black horse is also a horse".

In short, the court in this case, based on the essential elements of incapacity for civil conduct, expanded the application of the current legal provisions, and made a declaration that a vegetative person is also a person without capacity for civil conduct. significance.

tips

The following is a reference sample of the "Application Form for Determination of Citizen's Incapacity for Civil Conduct":
Application Form for Determination of Citizen's Incapacity for Civil Conduct
Applicant: (basic situation)
Respondent: (basic situation)

Request:

identified as a person without capacity for civil conduct.

Facts and reasons:
(State the facts, grounds and actual performance of the respondent's incapacity for civil conduct, and attach the respondent's medical diagnosis certificate or medical records and other relevant evidentiary materials.)
Sincerely,
××× People's Court
Applicant: ××
××year××month××day

Paternity Testing
39. What is a paternity test?

Wang was pregnant before marriage, and her husband is a doctor.After that, the man found a relationship to apply for a new birth certificate.The man who gave birth to a girl was disgusted, did not pay any money and did not take care of Wang's mother and daughter, and used domestic violence to force her to divorce, but failed.On the day of the daughter's first birthday, the man sued the court for divorce, unwilling to bear the responsibility of raising the child, and proposed a paternity test.

Since Wang is a foreigner and has no relatives, he decided not to do a paternity test, and made a request: If the man is unwilling to bear the responsibility of raising his daughter, write a promise that he will never recognize his daughter again, and Wang will not want his child support.But what Wang is not clear about is: (1) The cost of the paternity test and the waiting time for the result. (2) What legal provisions does the state have on paternity testing, and what legal consequences will Wang bear if he insists on not doing it?
At the same time, Wang wants to claim spiritual compensation, but it is said that after the paternity test is made, if the child belongs to the man, he cannot claim compensation. The reason is that it is normal for the child to belong to the man.And if the child does not belong to the man, the man can claim spiritual compensation, right?

In addition, if the man claims that the child is not his and Wang agrees, can the court rule that the child is not the man's?If this is the case, what legal consequences will Zhang have to bear?
Analysis according to law
Paternity test is a method of identifying the biological relationship between the father and the child by the relevant medical institutions or forensic departments, using advanced instruments, strictly following the blood type testing procedures, and under the premise that the test results are correct.At present in our country, the Supreme People's Court only allows people's courts at all levels to use human leukocyte antigen (HLA) for paternity identification.In the "Reply of the Supreme People's Court on Whether the People's Court Can Use Human Leukocyte Antigen as a Paternity Test in Trial Work", it is mentioned: "In view of the fact that the paternity test is related to the personal relationship and property relationship between husband and wife, children and others, it is a Therefore, for cases requiring a paternity test, it is necessary to protect the legitimate rights and interests of women and children, promote solidarity and prevent intensification of conflicts, and treat them with caution according to the circumstances. If both parties agree to a paternity test, Generally, permission should be granted; if one of the parties requests a parent-child test, or if the child is over 3 years old, it should be strictly controlled according to the specific situation, and the ideological work of the party and related personnel should be done well if the parent-child test is necessary. "

The Supreme Court has not made special regulations on how to start the paternity test procedure. The common practice in trial practice is: if both husband and wife agree to conduct a paternity test, both husband and wife shall submit a written application, and if one of the husband and wife requests it, the party concerned may submit it to the people's court. After applying in writing, the people's court will entrust a relevant paternity testing institution to conduct the appraisal and pay a certain appraisal fee. The paternity testing institution shall make a written appraisal conclusion and stamp the appraisal certificate.

The cost and time required for paternity testing vary with different testing agencies.In Nanjing Red Cross Blood Center Parent-child Judicial Appraisal Institute approved by the judiciary, one case was identified for more than 2000 yuan.The results of the appraisal will be available in about a week.

(End of this chapter)