浙江省高级人民法院第二审民事经济纠纷案件审判操作规程

1、浙江省高级人民法院第二审民事经济纠纷案件审判操作规程The administrative procedures for the trial of civil economic disputes in the higher peoples court of zhejiang provinceOn May 28, 1999, the supreme peoples court of zhejiang province held its 126th sessionIn order to correctly apply the civil procedure law of the Peoples Re

2、public of China (hereinafter referred to as the civil procedure law) and the supreme peoples court on the provisions of civil economic trial mode reform, establish a compatible with the socialist market economy system of civil judgment of economic mechanisms, guarantee in accordance with the law, fa

3、ir and timely trial, on the basis of summing up the experience of all, the trial operation procedure of second instance shall try civil economic dispute cases specified below.First, review the case1. The peoples court which originally tried the case after receiving the appeal petition and the defenc

4、e, shall indicate the date of receipt (mailing appeal petition shall indicate the date of postmark, and the envelope with the volume transferred), within five days will all the books materials, submit it to the peoples court of second instance. If the party fails to submit a defense in the legal per

5、iod, it shall not affect the delivery of the case.If the parties submit a petition to the peoples court of second instance within the statutory period, the appeal shall be established. The peoples court of second instance shall specify the date of receipt and transfer the petition to the peoples cou

6、rt of the original trial within five days.If an appeal is not filed by the party in the legal period, it shall not be deemed to be appealed, and the second instance shall not be mentioned.The case department of the second instance of the peoples court shall examine the following contents of the appe

7、al case submitted by the peoples court of the original trial.(1) the number of volumes and the material that is attached to the case shall be in conformity with the contents of the letter of transfer of the appeal;(2) whether a file is bound to meet the requirements;(3) whether the original judgment

8、 or written order is attached;(4) if a copy of the petition is delivered to the other party, there is no reply.No other materials have been omitted.If the case that is submitted by the peoples court of the original instance does not meet the above requirements, the peoples court of the original tria

9、l shall be notified to make a correction. If a case cannot be appealed in accordance with the law, it shall be sent to the peoples court of the original trial and return the case.6. Upon examination that meet the requirements of the statements of the above cases, registration department shall be fil

10、ed within seven days, send notice of criminal case filing to the appellant, stating legal notice. The content of the legal notice including the litigation rights and obligations of the parties, the case notes, etc.The case department shall send the case to the relevant tribunal the day after the cas

11、e is filed. The presiding judge shall be responsible for the receipt of the case and the registration of the case.Second, the work before the court sessionAfter the closing of the trial, the court shall constitute a collegial panel according to law. The parties shall be notified within three days af

12、ter the formation of the collegial panel. In case of a change in sentiment, the party concerned shall inform the parties within three days after the adjustment of the collegial panel. Three days before the date of adjustment made by members of the collegial panel, the original trial date should be p

13、ostpone, but thereto made it clear to the collegial panel are adjusted and scheduled court date if no objections, be in session.After receiving the case, the collegial panel shall examine it seriously and find that the following circumstances shall be handled according to law:(1) the appeal shall be

14、 rejected if the appeal is filed in excess of the statutory period, and the appeal is not appealed in accordance with the law.(2) if the appellant has not yet submitted the fee for the appeal of the appeal, he shall send a notice to the appellant. The appellant shall, within seven days after receivi

15、ng the notice from the peoples court, still have not submitted it, and shall not offer any reduction, delay or exemption, the ruling shall be automatically withdrawn from the appeal.(3) the appellant apply for reduction, delay and exemption appeals court costs, dealing with its application for revie

16、w, the collegial panel, agreed to defer shall be submitted to the approval of the President; The consent of the President shall be submitted to the dean for approval. Those who agree to reduce, delay or avoid the exchange shall be called to the appellant; If the person who disagrees should be notifi

17、ed of the time limit of the appellant,The ruling is automatically withdrawn from the appeal.Review the scope of the appeal request and clarify the focus of the second trial. Where the appellant fails to make a request, it shall not be examined. However, the original judgment shall be exempted from t

18、he provisions of the law prohibiting the prohibition of the law, the infringement of the public interest or the interests of other people.The peoples court of second instance may not review the contents of the first instance in which the appellant is required to change or replenish the contents of t

19、he first instance.After the collegial panel examines the material, it shall decide whether to hold the trial.In addition to the case of the following second instance, which may not be heard in court, the judgment or written order of the other cases shall be held in court:(1) the peoples court of the

20、 original trial shall not accept, dismiss the prosecution and make a ruling on the dispute over jurisdiction;(2) the parties to the peoples court which originally tried the case main facts without controversy, is only to pay the money computation, time limit for the payment of the debts or other obl

21、igations of objection;(3) the cases determined by the original judgment are clear and the parties only have general objections to the applicable law;(4) the original judgment, in violation of the legal procedure, needs to be retried.If the original trial has any of the following violations of the st

22、atutory procedure, it may affect the correct judgment of the case, and shall be sent back to the retrial:(1) the judicial officers and the clerks in the case shall avoid the case and shall not avoid it;(2) making a judgment without a court hearing;(3) without evidence of the evidence of the trial th

23、at is subject to the case, except for the fact that the evidence is not required;(4) in cases where the ordinary procedure is tried, the parties without subpoena shall not be given a judgment;(5) other serious violation of legal procedures.15. Decided to open a court session to hear a case, should a

24、ccording to: the civil economic dispute cases used ordinary procedure of first instance trial procedures (hereinafter referred to as the operational procedures of trial ), to the court summons to the party, delivered to the other participants in the proceedings in court notice; In case of public tri

25、al, the name or name of the party, the time and place of the hearing shall be announced on the third day of the session.Before the trial, the collegial panel shall study the relevant matters in the trial, and refer to the provisions of article 22 of the first trial operation procedure.Prior to the h

26、earing, the entity dealing with the case shall not be asked by the peoples court at the higher level.The members of the collegial panel shall not contact one party or its agent before the hearing.The investigation and collection shall be investigated and collected by the peoples court.The trial of t

27、he court(1) preparation for the opening of the court20. According to the supreme peoples court on the strict enforcement of regulations on public trial system requirements stipulated in article 8 to article 11, decorate the trial court, organizational citizenship auditing, invited news reporter inte

28、rviews, etc.21. According to the operational procedures of trial the provisions of article 27, clerks find out to appear in court to participate in litigation of the parties and other participants in the proceedings of identity and agency authority; The participants and other participants in the pro

29、ceedings shall be filled out by the litigants.The clerk declared discipline in the court.The clerk of the court announced that all the members of the court had stood up and asked the chief judge and the judge to enter the court.The presiding judge declared all the seats.25. The clerk report to the c

30、hief judge the parties and other participants in the proceedings to appear in court and review the status, and will of the parties and other participants in the proceedings in court attendance, submit the presiding judge.The presiding judge inquires that the parties involved in the investigation sha

31、ll have no objection to the identity and appearance of the parties involved in the investigation of the clerk and other participants in the proceedings. If the parties have no objection to the court members of the parties, the presiding judge shall declare that the parties and other participants in

32、the proceedings are eligible to participate in the proceedings in the case.(2) the hearing was announcedThe presiding judge announced the case by a public hearing. In case of public hearing,The reason should be explained.If the appellant is subpoenaed by a subpoena, the presiding judge may declare h

33、is absence to the court, and the judge may declare the basis of his absence. If the defendant or the third person is subpoenaed by a subpoena, the case shall not be brought to the court without justification, and the trial of the case shall not be affected.The presiding judge announces the members o

34、f the collegial panel and the list of clerks.The presiding judge inquires whether the parties have received notice of litigation concerning the rights and obligations of the parties before the hearing.The presiding judge asked the parties whether they applied for the withdrawal. If the parties apply

35、 for withdrawal, the court shall declare a recess after the reasons for questioning.If the case for withdrawal of the party fails to be established, the presiding judge, after the announcement of the hearing by the presiding judge, has dismissed the application for withdrawal; If the parties apply f

36、or withdrawal, the decision shall be made by the presiding judge to withdraw the decision and announce the postponement.If any party concerned refuses to accept and reject a withdrawal application decision, file an application for reconsideration shall not affect the hearing case, however, it shall

37、make a reconsideration decision within three days and notify the applicant for reconsideration, may also be at the start of the hearing in court to inform the applicant of reconsideration.(3) the investigation of the courtThe presiding judge announced a court investigation. The presiding judge shoul

38、d note that the investigation of the court of second instance is focused on the disputed facts involved in the appeal request. To inform the parties of the burden of proof on their claims; The opposing claims should also be provided with relevant evidence or reasons.To state the appeal and the reaso

39、ns for the appeal by the appellant; The appellant states the reason for the defence.The presiding judge asked the appellant for any change in the appeal request. If there is any change, the appellant shall explain the reason and provide the relevant evidence. If the appellant is willing to defend th

40、e court in court, the defendant shall present the reason for the defence. If the appellant requests that the peoples court be given a period of defense, the collegial panel shall announce the recess of the court, and the trial shall be held at another time after the expiration of the term of the def

41、ense.The presiding judge shall, in accordance with the appeal and the defense of the parties, summarize the focus of the parties disputes, and guide the parties to carry out the evidence and quality certificates around the controversial focus.The evidence, facts, and facts that the peoples court of

42、the peoples court of the peoples court shall not dispute, shall not be examined and confirmed by the court directly.If the appellant has any objection to the facts and evidence found by the peoples court of the original trial, the appellant shall carry out the evidence and the certificate of quality

43、 in court. If the appellant has admitted the objection to the court, it may no longer be able to prove it.39. The fact that there are two or more needs investigation, shall, in accordance with the internal logic and litigation laws of development of events correctly determine order, distinguish betw

44、een layers, one by one.40. The parties to the court, the peoples court to give evidence collection inquiry or by authority, an inquest, conclusion, and the witnesses to appear in court to testify, and to each kind of evidence cross-examination according to the operational procedures of trial the pro

45、visions of article 41 to 47.The parties may ask the witnesses, the surveyor, and the surveyor, for the permission of the presiding judge. The parties may ask each other questions.The judge may ask the parties and other participants in the proceedings.The audio-visual data shall be played in the cour

46、t and shall be certified by the parties concerned.The court may not show any evidence of state secrets, trade secrets or personal privacy, but may be given appropriate indications.Before the end of the court investigation, the presiding judge should ask the two parties for any new evidence to be pro

47、vided to the court.The parties required to provide new evidence and cant immediately provide, collegial panel shall ask the party the types of evidence and facts to prove, and inform the deadline to provide the parties.Collegial panel think need supplementary evidence, the parties or by the peoples

48、court to investigate and collect evidence, or to an inquest, identification, decided to open a court session again, the presiding judge dealing with this court case to carry on the summary, announced that the trial has confirmed evidence of clear court the next court probes.45.Session, again has not

49、 only tried to investigate the items, not repeat have program or for cross-examination, identifying evidence cross-examination,; The supplementary evidence or re-examination of the written record and the conclusion of the appraisal must be examined by the parties concerned.If the evidence of the qua

50、lity certificate of the court has been determined immediately, it shall be decided immediately. If it is not recognized immediately, it may be decided upon after the reciting of the court. The evidence of the quality of the case without trial shall not be regarded as the basis of the case.In case of

51、 the following facts, no proof or pledge is required in the trial of the second trial:(1) the peoples court which originally tried the case has been decided, the fact that the parties in a trial without complaint, or a party to the other party stated facts and put forward the claims, made it clear t

52、hat admit;(2) well-known facts and laws of nature and laws;(3) other facts that can be determined according to the provisions of the law or known facts;(4) the facts that have been determined by the judges who have served in the peoples courts;(5) the facts proved by the legal notary procedure. But

53、there is evidence that contrary evidence is sufficient to overturn the proof of notarization.The examination, judgment and certification of the evidence shall be dealt with in accordance with the provisions of article 60, 61, 62, 63 and 64 of the first-instance operation procedure.49. There is evide

54、nce that holds evidence of one of the parties without justifiable reasons, still refuses to provide the evidence in criminal litigation, if the other party claims that the content of the evidence against the evidence holder, this claim may be inferred.50. The parties in the first instance has provid

55、ed some evidence deliberately not in the first instance, and in a second trial, if the other party refused to cross-examination, and may change the original sentence, should be remanded. But the first instance of the court is not liable for the error.51. One of the parties in the first instance to p

56、rovide only the written testimony of the witness, the other party has objection to the cognizance of the testimony of witnesses, and asked the witness to testify in the second instance, the witness should testify. A person who refuses to appear in court without a valid reason is deemed to be unable

57、to provide evidence for the witnesss testimony.52. The survey before the end of the courtroom, the presiding judge on the court shall be the focus of the investigation of the facts and the parties concerned dispute to sum up, and then announce the end of the survey.(4) the court debateThe presiding

58、judge declared a court debate.The court debate should be conducted on the basis of the investigation of the court, and the evidence and facts that have not been determined by the court investigation shall not be the basis or reason for the debate.The court debate shall be conducted around the scope of the appeal of the parties, which shall not be debated without the content of the appeal. If the parties and their agents of litigation have not said or duplicated th