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Chapter 9 Questions and Answers about Marriage and Inheritance (8)
The husband bought a house with a "mistress", and the wife was going to sue him for divorce, but because there was not enough evidence, in order to prove the husband's misconduct, Ms. He invited relatives and friends after learning that her husband went to find a "mistress" under the pretext of a business trip At about 1:5 a.m. on a certain day, she came to a certain community in a certain city, and blocked her husband and his "second wife" in the house.At about [-] o'clock in the morning, when the husband opened the door and was about to leave, he was stopped by Ms. He and others who had already "ambushed" at the door. The husband had to write a "confession" to Ms. He dejectedly.And in the subsequent divorce trial, made a confession.

Analysis according to law
It is considered to be an important system in civil litigation and has been widely adopted by countries all over the world. Paragraph 8 of Article 1 of the "Regulations on Evidence" formally establishes the admission system in litigation, which is the concrete embodiment of "participantism" in the rules of evidence.

From the point of view of the self-identified subject.The parties are self-confessed subjects.However, for persons without or with limited capacity for civil conduct, the recognition in litigation must be implemented by their legal representative.Recognition of organizations must be carried out by their legal representatives.As for the entrusted agent in the lawsuit, Article 8, paragraph 3 of the "Regulations on Evidence" restricts it, that is, it needs the special authorization of the person.Some scholars also believe that self-admission does not require special authorization.

The object of self-admission can only be facts, which are the specific facts claimed by the other party. As for whether it is "unfavorable to oneself", the "Evidence Regulations" does not make a distinction.Some people think that the fact that the parties are beneficial to themselves can also constitute a confession in litigation.The author believes that "beneficial to oneself" is "disadvantageous to the other party" from its internal logic, and the statement of the fact that the other party is "beneficial to oneself" is actually a self-admission of the fact that it is unfavorable to oneself.Recognition of this fact will not actually lead to disputes over litigation interests, and there will be no problem with the allocation of the parties' burden of proof.Therefore, the author believes that the object of self-confession should only be understood as a fact that is "unfavorable to oneself".

Article 8 of the "Regulations on Evidence" clearly stipulates that self-admission must be "in the process of litigation".The author believes that it is appropriate to define the time limit for self-admission as before the end of the court debate, and it can be appropriately extended to the final statement stage of the parties after the trial summary.After the collegiate panel deliberates and before the verdict is pronounced, the court will not recognize the parties' confession in principle, otherwise it will cause great damage to the normal order of the court and the seriousness of the law.

Under normal circumstances, the legal effect of self-admission is: on the one hand, because the self-admitted actor recognizes the facts of his claims, the direct legal effect is to avoid proof.On the other hand, since the party concerned still makes a corresponding self-admission when he knows a fact that is unfavorable to him, it means that he must be confident that the fact is true.

The court should respect the choice of the admitted party and use it as the basis for adjudication, without additional verification, and it is not appropriate to make factual determinations contrary to the admitted facts.

tips

Self-admission in the following situations should be excluded:
1. Acts that violate the will of the party concerned.The specific manifestation is that the confession made under duress or major misunderstanding and inconsistent with the facts can only be withdrawn by the admitted party.

2. The confession made by a person without or with limited capacity for civil conduct can only be implemented by his legal representative.

3. Recognized acts that maliciously damage national interests and the interests of third parties.The third party should have the right to revoke the "self-admission" after knowing the infringement, and the law should clarify this.

4. Acts of recognition involving identity relationships.

5. Facts within the scope of evidence collection by the court according to its authority and facts that do not need to be proved as stipulated in Article 9 of the Evidence Regulations.In addition, "concessions" in reconciliation and mediation should not be regarded as admissions.

27. For foreign-related marriages, what certificate do you use to prove that you are not married?
Overseas Chinese Mr. Zhou and his girlfriend have been in love for 3 years, but when they go through the marriage registration process in Italy, the Italian government requires them to show the domestic notarized documents of unmarried.Unexpectedly, the domestic notary offices no longer handle the service of unmarried notarization.

In the new "Regulations on Marriage Registration", streets, work units and civil affairs departments no longer have the responsibility to issue unmarried certificates. Without unmarried certificates, notarization agencies cannot handle notarization.

"How to prove that you are not married" has become a headache topic after the introduction of the new "Marriage Registration Regulations".

Analysis according to law
Since the implementation of the "Marriage Registration Regulations" on October 2003, 10, the notary office has encountered some new situations when handling foreign-related unmarried and unremarried notarization: First, when the marriage registration authority of our country handles marriage registration for Chinese citizens, it no longer requires The party concerned provides the certificate of the unit or the village (resident) committee. The unit or the village (resident) committee has been unable to accurately grasp the marital status of the relevant party; The marital status of the parties cannot reflect the marital status of the parties in a timely and accurate manner; third, the national marriage registration agencies are not connected to the Internet, and the marriage registration agencies cannot provide proof that the parties concerned are unmarried or have not remarried.The emergence of the above situation has made it difficult for the notary office to verify whether the parties are unmarried or not remarried.

Therefore, the Ministry of Justice issued the "Notice on Temporarily Adjusting the Notarization of Foreign-related Unmarried and Unmarried Persons" (hereinafter referred to as the "Notice"). The "Notice" pointed out that if a party applies for notarization of unmarried or remarried, it is not appropriate to issue a notarial certificate in the original format of the notarial certificate; For those who can provide proof materials and have been verified to be true, they can apply for notarization that the parties have no marriage registration records in the marriage registration authority at the place of their household registration.

The "Notice" emphasizes that when notarizing the unmarried or non-remarried statement, it should be noted that the notarization of the statement is different from the original substantive unmarried or non-remarried notarization, and foreign agencies may not accept the certificate; the parties should be required to The statement stated that "I guarantee that the above statement is completely true, and if there is any inaccuracy, I am willing to bear all legal responsibilities."Under the condition that the notarization agency has the relevant certification materials for unmarried and non-remarried, the Ministry of Justice plans to study how to handle foreign-related unmarried and non-remarried notarization.

tips

The following is a sample of the unmarried declaration (foreign-related):
Declaration of unmarried (foreign-related)

My name: ××× male/female, born on ×year×month×day.

I am working (living) in Italy from ×year×month×day to ×year×month×day.Did not register marriage with anyone during this period (or did not register marriage with anyone after divorcing ××× on ××××××year).

The content of the above statement is true, and I assume all legal responsibilities arising from this statement.

Certifier A:

Certifier B:

The above statement is true and is hereby certified.

Declarant (signature):
Milan (Italy)

28. How to legally preserve evidence in marriage cases?
Ms. Wang came to a notary office in a certain city and asked the notary to notarize the content of her husband's online chat and e-mail for evidence preservation.Ms. Wang complained that recently, her husband rarely communicated with her, and often surfed the Internet late at night alone. She was worried that her husband, who was obsessed with the Internet, would divorce her.After knowing the password of her husband's mailbox, Ms. Wang asked the notary to notarize her husband's online content so as to help her grasp the evidence and "preserve the evidence" for possible future lawsuits.The notary patiently explained the relevant laws and regulations to her, and told her that stealing other people's mailboxes and QQ (editor's note: QQ is a kind of Internet chat software) passwords and peeking at their contents violated the privacy of citizens, even if Even if it is your own husband, the notary office cannot notarize this situation.

Analysis according to law
Evidence preservation is a special procedure based on objective needs to fix and preserve the content and form of evidence.The essential requirement for notarization of evidence preservation is the possibility of loss of evidence or the hidden danger of hindering its use, or the consent of the other party.The procedural requirement for notarization of evidence preservation is that the application should generally be filed before the lawsuit.

It is generally believed that any application for notarization of evidence preservation to a notary institution shall meet the following conditions:
1. Evidence may be lost or difficult to obtain.

Evidence may be lost, distorted or difficult to obtain due to the passage of time or other reasons.For example, if the patient suffers from a disease and may die; the relevant unit needs to apply for a notarization of evidence preservation due to demolition; the items used as evidence will rot and deteriorate, and may lose their role as evidence at any time, the appearance, characteristics, etc. of the items should be promptly reported. Records are made and items are processed.

In addition to the above objective conditions, there are also human factors.If evidence may be destroyed, defaced, buried, transferred, etc., it will affect the correct trial of disputes by people's courts or administrative law enforcement agencies in future litigation or investigation.Therefore, in order to effectively use evidence to determine the facts of the case and protect the legitimate rights and interests of the parties concerned, relevant agencies and individuals should apply for notarization of evidence preservation in accordance with the law.

2. The current situation of the facts involved in the case must be determined, and the applicant has an interest in the case.

Due to the passage of time, changes in natural conditions or other reasons, some evidence itself may disappear or be difficult to obtain.Therefore, the notary institution should guide and urge the parties concerned to use the methods permitted by law to preserve the evidence in the process of preserving evidence.Such as the statement of the parties, the on-site inspection process, etc., cannot be kept in people's memory accurately for a long time. If the evidence preservation is not notarized in time, it will be recorded in words or recorded by audio or video, and it may be forgotten afterwards; It is impossible for the traces to remain unchanged for a long time, such as the location of the house, four locations, the nature of the house, structure, level, area, new and old procedures, layers and ground texture, auxiliary facilities, etc., if you do not take pictures or draw and use words to describe their original conditions in detail For the record, once a house has been demolished, there is no way to know its current state.

tips

The following is a reference sample of the "Application for Preservation of Evidence":
Application for Evidence Preservation

Applicant: name, gender, age, nationality, place of origin, occupation or position, unit or address.

The applicant and (the name of the opposing party) filed a lawsuit with your court on the date of year, month, and date, and now the case (name of evidence) is about to be lost (or it will be difficult to obtain it in the future), so we apply for preservation of evidence.The facts of the case, the reasons and the specific purpose of the request are as follows:

Facts and reasons

Purpose of request
Sincerely,
Applicant: ×× (signature or seal)

××year××month××day
29. In a divorce case, how to prove mental damage and obtain compensation?
Wang once had an extramarital affair.When Jiang found out about it, he was very angry.Leave Wang to study abroad.At that time, in order to prepare for the divorce, Jiang asked Wang to write a "repentance statement", and asked Wang to write down when and with whom he had sex and improper relationships many times.Now this material is in Jiang's hands; at the same time, Jiang also copied the call records of Wang's prostitution at that time on a floppy disk and saved it.If Wang Mou sues Jiang Mou, can Jiang Mou use this material as evidence to accuse Wang Mou of "compensating for mental damage" to Jiang Mou?
Analysis according to law
The revised Marriage Law has established a compensation system for mental damage caused by divorce.As soon as this regulation was promulgated, the number of cases in which the parties appealed to the other party for compensation for mental damage was on the rise. Article 28 of 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 (10) stipulates that (in a divorce case), ... if compensation for mental damage is involved, the Supreme People's Court's "Regarding the Determination of Mental Damage in Civil Torts" shall apply. Interpretation on Several Issues of Liability for Compensation". Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning Determination of Liability for Mental Damage Compensation in Civil Torts lists six factors for determining the amount of compensation for mental damage in civil torts, but among them, "the extent of the infringer's fault, means, behavior, and tort Consequences caused by "and so on, it is difficult to grasp when it is applied to divorce cases. Let's try to talk about the factors that should be considered in combination with the scope of mental damage in divorce cases.

1. The degree of mental damage to the victim.It mainly refers to the degree of mental injury and mental pain suffered by the victim.For example, due to the fault of one party, the injured party has emotional disorders such as anger, fear, anxiety, depression, sadness, and humiliation; serious physical illness due to mental and emotional damage; mental depression and trance; lack of food and sleep, affecting work and living, therefore suffering from schizophrenia or its mental illness; suicide attempt; whether there are sequelae, etc.Since the above-mentioned symptoms of the injured party are sometimes relatively mild and short-term, and the degree of mental injury and mental pain suffered by the victim involves the physical and mental aspects of the person, so when necessary, the degree of severity can be divided after identification by medical experts. Make corresponding judgments.

2. The degree of subjective fault of the injurer.This can serve as an important basis for considering sanctioning the offender.If the fault is serious, it may cause emotional harm such as anger and resentment to the victim, and cause great damage to the spiritual interests of the victim. In order to calm this kind of harm, the amount of comfort money should be increased as appropriate, which also reflects the degree of sanctions.If the perpetrator is only slightly negligent, the victim is easier to understand and tolerate, and the sanction should be lighter.

3. The specific circumstances of the infringement by the infringer.That is, analyze the specific circumstances of the infringement from the aspects of the infringer's tortious behavior, means, etc., and comprehensively consider the severity of the circumstances. Article 46 of the "Marriage Law" has listed four situations in which the party without fault has the right to claim damages. The four situations listed can be classified and arranged. ; And adultery is relatively minor.Domestic violence is generally more serious than abuse and abandonment of family members; of course, if a crime is committed due to abuse or abandonment of family members, the circumstances can be determined to be more serious than domestic violence.

4. Other discretionary circumstances.For example, considering the years of marriage of both parties, the two parties have been married for a long time, and the party without fault has invested more in the specific life of the marriage, and has higher expectations for the stability of the marriage.At this time, if the other party is at fault and divorces, the non-fault party’s long-term investment in the marriage will be greatly lost, and the expectation of future mutual benefits will also be shattered. The pain of divorce will increase, and the amount of compensation will be correspondingly larger.On the contrary, if the marriage period is short, the compensation can be correspondingly less, which can be quantified by referring to the way of compensation for the level of disability.If you have been married for 5 years, and one party's fault leads to divorce, you can be given 1 year of compensation for the average local living expenses; if you have been married for 15 years, you can be given 3 years of compensation for the average local living expenses.Another example is that one of the husband and wife uses the joint property of the husband and wife to make intellectual investment or go abroad for further study, or to study for a graduate student, or to learn a professional technology, etc., so that part or most of the husband and wife property is consumed or converted into one party's proprietary knowledge or skills, and the proprietary knowledge is acquired. If there is a situation stipulated in Article 46 of the "Marriage Law" or the technical side, in addition to applying the principle of divorce compensation, the principle of fault compensation should also be applied when dealing with it.

In this case, the evidence held by Mr. Jiang is relatively favorable. It can be determined that the other party has committed a faulty act as stipulated in Article 46 of the "Marriage Law", and he has the full right to demand compensation from the other party.

tips

The amount of compensation for mental damage is not specifically regulated by law, and it is impossible to have exact stipulations.According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Compensation for Mental Damages in Civil Torts, the amount of compensation has been stipulated in principle, so as to unify the law as the basis for courts across the country to handle such cases.Article 10 of the "Interpretation" stipulates: "The amount of compensation for mental damage is determined by the following factors: ([-]) the degree of fault of the infringer; ([-]) the profit of the infringer; ([-]) the economic capacity of the infringer to bear the responsibility; ([-]) the average living standard of the place where the court accepting the lawsuit is located.” Therefore, when the parties appeal to the court for the infringer’s mental loss, The court will make a decision based on the above factors.

30. In a divorce case, how to prove the incapacity of one party?

In 2000, the defendant ran away from home, and now he has been searched by the court and found no whereabouts.The plaintiff Xu was hit by a 2004V electric current on August 8, 12, and when he was in a vegetative state, the court commissioned the Judicial Science and Technology Institute of the Ministry of Justice to conduct an appraisal of the plaintiff's mental state and behavioral capacity. On May 220, 2005, the Institute of Judicial Science and Technology of the Ministry of Justice issued a written appraisal conclusion that the appraised person Xu should be assessed as having no capacity for civil conduct in this case.

The court held that the defendant never showed up and did not fulfill his wife's obligations at all. It should be determined that the husband and wife relationship between the plaintiff and the defendant had indeed broken down.The plaintiff now seeks a divorce from the defendant.In this case, the legal representative of the plaintiff did not make a claim on the issue of custody of the children born to the plaintiff and the defendant. Considering that the plaintiff is currently a person with no capacity for conduct, this court will not deal with the issue of child custody.With regard to the joint property and housing of the plaintiff and the defendant, the legal representative of the plaintiff clearly stated that it would not be divided before the defendant appeared, and that a separate claim in the future may be allowed.Plaintiff and Defendant granted divorce.

Analysis according to law
This case is a divorce case in a vegetative state, which belongs to a new type of civil case; the subject of the lawsuit has certain particularities, which is reflected in the fact that one party is a vegetative state and the whereabouts of the other party is unknown; the legal circles have different opinions on how to handle this case.Due to the above circumstances, the handling of this case should proceed from the actual situation of the parties concerned, and handle the case carefully and securely in accordance with the provisions of the "Marriage Law" on handling divorce issues.

(End of this chapter)