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Chapter 2 Questions and Answers about Marriage and Inheritance (1)
婚姻
1. How to prove that the deposit in the passbook is the joint property of husband and wife?
Li and Zhang are husband and wife, and their common property is 1 yuan. A regular passbook was opened in Li's name and password. The passbook was in charge of Zhang. The passbook expired on February 2006, 2. Li File for divorce within a few days after the due date, and take all the money away after reporting the loss of the passbook.

Question: The passbook in Mr. Zhang's hand is now a piece of waste paper. Can it be used as a proof of joint property?If Li lied that he had distributed half of the withdrawn money to Zhang, how would Zhang protect his rights?
Analysis according to law
According to 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 (II)" on the joint property of husband and wife, and according to the "Several Specific Opinions of the Supreme People's Court on the Divorce Cases Handled by the People's Courts on the Divorce of Property" Article 7 states: "Where it is difficult to determine whether individual property or joint property of husband and wife, the claimant has the responsibility to provide evidence. If the party fails to produce strong evidence, and the people's court cannot verify it, it shall be treated as joint property of husband and wife." Therefore, in this case, Li claims it is his own property, while Zhang claims it is their joint property. According to this article, Li should bear the burden of proof and have the responsibility to prove his claim. If Li cannot produce enough evidence to prove the deposit If it is owned personally, it should be presumed to be common property.

tips

In a marriage lawsuit, it is first necessary to clarify which property between the husband and wife should belong to the joint property, which is the prerequisite for proof.According to the provisions of Article 17 of my country's "Marriage Law", "the following properties acquired by the husband and wife during the existence of the marriage relationship shall be jointly owned by the husband and wife: (18) wages and bonuses; ([-]) income from production and management; ([-]) intellectual property rights. ([-]) Inherited or gifted property, except as provided for in Item [-] of Article No. [-] of this Law; ([-]) Other property that should be owned jointly. Husband and wife have equal rights to dispose of jointly owned property. "

2. Is it possible to file a lawsuit against the marriage registration act of the administrative agency?How is proof in litigation different from civil litigation?

On November 2005, 11, Luo drove Li's motorcycle and injured Dong. After hearing the matter, the court made a civil judgment: Li should bear Dong's medical expenses of more than 22 yuan, and Luo should bear 17000 yuan. Yu Yuan shall be jointly and severally liable.The case entered the execution procedure, and Dong found that Li and his wife held the divorce certificate issued on September 39000, 2005, and divided the common property.

The plaintiff, Dong, took the local town government as the defendant, claiming that the town government deliberately advanced the date of divorce registration of Li and his wife, and issued a divorce certificate with the same number as the divorce certificate of others to help Li avoid civil liability with the joint property of the husband and wife. On the grounds that the realization of the legal rights and interests of the plaintiff Dong was damaged, an administrative lawsuit was filed to request the local town government to revoke Li's "divorce certificate".

Analysis according to law
This case is an administrative litigation case, which is usually referred to as "people's lawsuit against officials", which means that citizens, legal persons or other organizations believe that the specific administrative actions of administrative organs and administrative organ staff have violated their legitimate rights and interests, and appeal to the people's court for resolution and the people's court in accordance with the law. Legal activities to resolve the administrative dispute.Government departments such as the government, the Public Security Bureau, and the Industrial and Commercial Bureau are all administrative organs.Ordinary people have the right to bring a lawsuit to the people's court in accordance with the law if they believe that the specific administrative actions of administrative organs and their staff have violated their legitimate rights and interests.

There are two questions about whether the court will file the case. First, is the marriage registration act made by the township government actionable?Second, whether the plaintiff, Mr. Dong, has the qualifications to be the subject of litigation?
Marriage registration includes marriage, divorce and remarriage registration.Our country implements the marriage procedure legislation principle of the registration system.Marriage registration is a concrete manifestation of the state's concern and responsibility for citizens' marriage issues, and it is also an effective means of managing and supervising the establishment and elimination of marriages.

Articles 1 and 11 of my country's "Administrative Litigation Law" stipulate that the first condition for a citizen, legal person or other organization to file an administrative lawsuit must be that the "specific administrative act" made by the administrative subject violates its legitimate rights and interests.Specific administrative actions refer to the exercise of administrative functions and powers by state administrative organs and their staff members, organizations authorized by laws and regulations, organizations entrusted by administrative organs, or individuals in administrative management activities. unilateral acts concerning the rights and obligations of the citizen, legal person or other organization.A specific administrative act has five constituent elements: first, the subject of the administrative act must be an administrative subject (that is, a state administrative organ or an organization authorized by laws and regulations); second, an administrative act must be an act of exercising power in administrative management activities ; third, it must be aimed at a specific person, on a specific specific matter; fourth, it must be a unilateral act, that is, the administrative subject only expresses its own will, and can make certain laws without expressing consent to the other party's will; Fifth, it must directly involve the rights and obligations of citizens, legal persons or other organizations, that is to say, after the administrative action takes effect, the citizens, legal persons or other organizations that are dealt with will lose certain rights or assume certain obligations or endow , Increase a certain power or reduce or cancel a certain obligation.

As an administrative act of the people's government, marriage registration has the above five characteristics.According to my country's "Regulations on Marriage Registration", the marriage registration management agency is the sub-district office or the civil affairs department of the people's government of a municipal district or city without districts in the city, and the people's government of the township, ethnic township, or town in the countryside.The main body of execution of marriage registration is the people's government, which is an administrative organ.Marriage registration is a means for the people's government to manage and supervise the establishment and elimination of civil marriages, and it is also an act of exercising administrative powers according to law.The decision made by the marriage registration authority is clearly directed to a specific person, the object is specific, and the administrative department expresses its own will based on the application of the party concerned.Once a citizen registers with the marriage registration authority, the man and the woman have (or dissolve) a special identity relationship in law, and because of this identity relationship (or dissolution), certain rights are created (or eliminated) and obligations.

Divorce registration is an administrative action made by the administrative department in response to the applications of both parties within the scope stipulated by laws and regulations. It is different from the trial of divorce cases by the court. Judgment, once the judgment is made, if the parties are not satisfied, they also have the right to appeal.Once the divorce registration of the government department is made, if the parties have objections, they can only take other judicial remedies.

First, if the marriage registration is found by the administrative organ itself or objected by the parties and confirmed by the administrative organ as inconsistent with the law, the administrative organ may modify it through legal procedures, that is, revoke the wrong marriage registration.

Second, if the party raises no objection and the administrative organ refuses to approve it, the party may bring a lawsuit to the people's court and request the people's court to revoke the marriage registration. The "party" here includes not only the husband and wife, but also the marriage registration that is adversely affected , a third person other than the husband and wife whose legitimate rights and interests have been damaged.As long as a citizen, legal person or other organization is affected by the administrative act, has an interest in the administrative act, and believes that its legitimate rights and interests have been violated, the citizen, legal person or other organization has the standing to sue the court, regardless of its Whether it is the recipient or applicant of the administrative action.

In this case, if the divorce certificate issued by the township government to Li is valid, Dong's interests will inevitably be damaged.Therefore, Dong has a legal interest in the marriage registration with the town government and should be qualified as a plaintiff.The court should accept the case.

tips

The way of proof in administrative litigation is different from that in civil litigation. Since one party is an administrative agency and the other party is an ordinary citizen, the law imposes a stricter burden of proof on state agencies.

Article 32 of China's "Administrative Litigation Law" stipulates: "The defendant bears the burden of proof for the specific administrative action taken, and shall provide evidence of the specific administrative action and the normative documents on which it is based." For example, Article 1 stipulates: "According to the provisions of Article 30 of No. 40 and Article 4 of No. [-] of the Administrative Litigation Law, the defendant shall bear the burden of proof for the specific administrative act and shall, upon receipt of Within ten days from the date of the copy of the indictment, provide all the evidence and normative documents on which the specific administrative act accused was based. If the defendant fails to provide evidence or provides evidence beyond the time limit without justified reasons, it shall be deemed that the specific administrative act accused has not responded evidence.” Article [-] stipulates: “When citizens, legal persons or other organizations file a lawsuit in the people’s court, they shall provide corresponding evidentiary materials that meet the requirements for filing a lawsuit. except for the following circumstances: ([-]) the defendant should voluntarily perform the statutory duties in accordance with the authority; Can make a reasonable explanation. If the defendant believes that the plaintiff’s lawsuit has exceeded the statutory time limit, the defendant shall bear the burden of proof.”

3. In a divorce proceeding, if the defendant appears when the notice of absentee judgment is served in the first instance, can he submit evidence in the second instance?
Zhang filed a lawsuit with the court, requesting the court to judge him to divorce Chen, because when Zhang filed the lawsuit, the whereabouts of the defendant Chen was unknown, and the court served legal documents such as court summons to Chen in the form of an announcement, and In the absence of Chen, the verdict was pronounced, and the content of the verdict was also announced and served.However, during the announcement period, Chen reappeared, refused to accept the judgment of the first instance and filed an appeal.

So, for Chen, can he submit evidence in the second instance?
Analysis according to law
Regarding this case, one opinion held that Chen had no right to present evidence that existed before the end of the first-instance trial.The reasons are as follows: Paragraph 34 of Article 1 of the "Evidence Regulations" stipulates that the parties shall submit evidentiary materials to the people's court within the time limit for producing evidence.Since Chen did not appear in court at the first instance, the legal consequence of serving the indictment in accordance with the public notice is deemed to have been served. He did not produce evidence within the statutory time limit, nor did he apply for an extension of the time limit for producing evidence in accordance with Article 36 of the "Regulations on Evidence", so he should deemed a waiver of the right of proof.Because according to Article 43, Paragraph 1 of the "Regulations on Evidence", if the evidence provided by the party after the expiration of the time limit for producing evidence is not new evidence, the people's court will not accept it. Unless Zhang agrees to cross-examine evidence, Chen has no right to exercise the right to produce evidence. .

Another opinion holds that Chen has the right to exercise the right of proof, and the court shall not deprive him of it.The reasons are as follows: Article 41 of the "Regulations on Evidence" stipulates that new evidence in the first-instance procedure includes: evidence newly discovered by the parties after the expiration of the time limit for producing evidence in the first instance; Evidence that remains unavailable within the extended period.It can be seen from this that the reason why Chen did not produce evidence within the period determined in the first instance was that he was unable to exercise his litigation rights due to objective reasons, and should not be deemed to have waived his right to produce evidence. Paragraph 43 of Article 2 of the "Regulations on Evidence" stipulates that if the party concerned has been granted by the people's court to postpone the presentation of evidence, but fails to provide it within the permitted time limit due to objective reasons, and if the evidence is not tried, the judgment may be obviously unfair, the evidence provided by the party may be released. as new evidence.In this case, if Chen cannot exercise his right to prove, it is obviously unfair, so Chen has the right to prove.

The third opinion holds that Chen should apply to the court, and only after obtaining the permission of the court can he present evidence that is not new evidence.The reasons are as follows: Paragraph 37 of Article 1 of the "Regulations on Evidence" stipulates that upon the application of the parties, the people's court may organize the parties to exchange evidence before the trial.Article 38 stipulates that the time for exchanging evidence may be agreed upon by the parties and approved by the people's court, or may be designated by the people's court.Where the people's court organizes the parties to exchange evidence, the time limit for producing evidence expires on the date of the exchange of evidence.If the party concerned applies for an extension to present evidence and is approved by the people's court, the evidence exchange date will be postponed accordingly.

It should be said that the third opinion is more in line with the legal provisions, because Article 44, Paragraph 1 of the "Evidence Regulations" clearly stipulates: "The "new evidence" stipulated in Article 170, Paragraph [-] ([-]) of the Civil Procedure Law, It refers to newly discovered evidence after the end of the original trial." Evidence is used to prove the facts of the case, and there is no evidence without litigation.However, due to objective circumstances, Chen did not receive the court summons and notice to produce evidence, so he did not know the existence and start of the lawsuit. At this time, all objectively existing things were not evidence for Chen, and he had no obligation to discover these evidences.So for him, it was only when he appealed after his reappearance that the case was just beginning and all the evidence was new evidence.

At the same time, the people's court is not completely passive in determining the period for producing evidence. On the contrary, the court can dominate the entire process of the litigation by specifying the period for producing evidence. Paragraph 33 of Article 3 of the "Evidence Regulations" stipulates that if the people's court specifies a time limit for producing evidence, the time limit specified shall not be less than 30 days, and shall be calculated from the day after the party receives the notice of case acceptance and notice of responding to the lawsuit.It can be seen that the people's court is completely legal as long as the period for producing evidence is determined to be no less than 30 days, and it is not necessary to solicit the opinions of the parties or let the parties decide.

Chen must explain that he has reasonable reasons for not completing the proof production within the first-instance proof period. If the court of second instance considers that his reasons are true and it is really unfair to deny him proof, he should designate a time period for proof production and allow him to renew the evidence. Evidence.However, allowing Chen to present new evidence undoubtedly deprived Zhang of his right to appeal the case. Therefore, the most appropriate solution is to close the case through mediation in the second instance.If mediation cannot be reached, it should be remanded for retrial in accordance with Article 153, Paragraph 3 of the Civil Procedure Law.

tips

The court of first instance in this case adopted the method of trial in absentia.In terms of whether all the parties concerned participate in the trial of a case by the people's court, it can be divided into two types: adjudication by the bench and judgment by default.Adjunct judgments refer to judgments made after the parties or their agents ad litem have participated in the hearing.A default judgment is a judgment rendered when one party fails to attend the hearing.Under normal circumstances, the court cannot arbitrarily make a default judgment, because when only one party participates in the trial, it is obviously unfair for the court to make a judgment based on the evidence provided by one party.According to the relevant provisions of the "Civil Proceedings Opinion", if one of the husband and wife's whereabouts is unknown, and the other party sues to the people's court, he only asks for divorce, and if he fails to declare the disappearance or death of the missing person, the people's court shall accept the case and issue a public notice to the missing person. Delivery of litigation documents.

4. In order to collect evidence of having a mistress, does the court have the right to inquire into the personal call list?

One day, when a certain court was hearing a divorce case, according to the application of the defendant (wife), the judge went to a certain city to collect evidence that the plaintiff had a mistress.A mobile company in a certain city wants to check the call list of the plaintiff’s mobile phone. According to Article 66 of the "Telecommunications Regulations", the mobile company: "The freedom of telecommunications users to use telecommunications according to law and the privacy of communication are protected by law. Except for national security or the need to investigate criminal crimes, Except for public security organs, national security organs, or people's procuratorates to inspect telecommunications content in accordance with the procedures prescribed by law, no organization or individual may inspect telecommunications content for any reason." He believes that the people's court has no right to inquire, and rejects it.

Similar things happen from time to time: a judge in the enforcement division of a certain court goes to a certain bank to inquire about deposits, and the director of the business office hides under the counter and secretly calls the person subject to execution. After 15 minutes, he informs the judge that the money has been withdrawn by the bank.The executive judge went to the telecommunications department to check the call list of the director of the office that day, and wanted to find evidence that he had tipped off the person subject to execution, but was also blocked by Article 66 of the "Telecommunications Regulations".So, does the people's court have the power to inquire about the call list?
Analysis according to law
(End of this chapter)