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Chapter 492 Infringement Disputes over Falling Objects (8)

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    In civil litigation, according to Article 78 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China passed in 2015, Articles 53 and 54 of the Civil Procedure Law stipulate  There are two to five representatives, and each representative may entrust one or two representatives as ad litem representatives.

    ? In a majority action, the authority of the representative ad litem is equivalent to that of an ad litem agent who has not been granted the substantive right of disposal.  Specifically, the litigious actions of the litigant representative have legal effect on the parties they represent.  However, when disposing of the substantive rights of the represented party, such as changing, abandoning the litigation claims, acknowledging the litigation claims of the other party, and making reconciliation, the consent of the represented party must be obtained.

    ? In litigation, when the litigation representative is unable to perform his duties or abuses the right of representation, he can be replaced.  When it is necessary to replace the litigation representative, the represented person shall submit an application for replacement to the people's court.  If the people's court finds that the application is justified, it shall rule to suspend the litigation, and then convene all the represented persons to re-determine the litigation representative by means of election and consultation.  After a new litigation representative is produced, the litigation resumes.  The litigation acts carried out by the original litigation representative shall be binding on the replaced litigation representative.

    According to the provisions of the Civil Procedure Law and the "Civil Procedure Opinions", the representative litigation system in civil litigation in my country can be divided into representative litigation with a fixed number and representative litigation with an uncertain number.

    A representative action with a fixed number refers to a representative action in which the number of co-litigants who have been determined at the time of filing a lawsuit elects a representative to replace all co-litigants in the litigation.  It should meet the following four conditions:

    1. There are a large number of parties involved.  There are a large number of parties, generally more than 10 people.

    2. The number of parties involved has been determined at the time of prosecution.

    3. Most of the parties have the same object of action or the same type of object of action.  Therefore, a representative action with a certain number of persons can be either a necessary joint action or an ordinary joint action.

    4. The parties elect a representative.  In a representative action with a fixed number of persons, all parties may elect a common representative, or some parties may elect their own representative; the parties who cannot elect a representative may participate in the necessary joint action by themselves.  A separate action may be filed in an ordinary class action.

    A representative lawsuit with an uncertain number refers to a representative lawsuit in which if the number of co-litigants cannot be determined at the time of filing a lawsuit, the right holders registered with the court will elect a representative to replace all co-litigants to participate in the lawsuit.  It should meet the following conditions:

    1. There are a large number of parties involved, and they have not yet been determined at the time of the prosecution.  This is the fundamental difference from a representative action with a fixed number of persons.

    2. The object of action between most of the parties is of the same type.  In other words, only common joint actions can apply to representative actions with an uncertain number of persons.  In the necessary joint action, if the number of people is uncertain, the representative action cannot be applied.

    3. The parties elect a representative.  In this type of representative litigation, the litigation representatives can only be elected by those parties whose rights have been registered with the people's court.  According to the "Civil Litigation Opinions", the formation methods are as follows: (1) selection, that is, the parties who have registered their rights with the people's court elect a litigation representative; (2) negotiation, when no litigation representative can be selected,  The people's court may propose a candidate to negotiate with the parties; (3) designate, if the negotiation fails, the people's court may also designate a representative from among the parties to the lawsuit.

    4. Special Procedures for Representative Actions with an Undetermined Number of Representatives

    ?Compared with a representative action with a fixed number of persons, a representative action with an indeterminate number has the following special procedures:

    (1) Announcement

    When the people's court accepts a majority lawsuit, if it finds that the number of parties involved has not been determined at the time of the lawsuit, it may issue an announcement explaining the circumstances of the case and the claims of the lawsuit, and notify the obligee to register with the people's court within a certain period of time.  The right holder here refers to the person who subjectively believes that he or she has the right.  The method of announcement can be determined according to the scope of the dispute, such as posting an announcement on the bulletin board of the court, or publishing it on newspapers, television and other media.  The time limit for the announcement shall be determined by the court according to the circumstances of the specific case, but at least it shall not be less than 30 days.

    (2) Registration

    The purpose of registration is to determine the number of parties to prepare for litigation.  During the announcement period, the obligee shall register with the competent court of the case where the announcement is made, and prove its legal relationship with the other party and the damage it has suffered.  If it cannot be proved, it shall not be registered, but the party concerned may sue separately.  Since the registration itself does not cause the occurrence of the lawsuit or the affiliation of the lawsuit, it only indicates that he is the party to the case. Therefore, if the obligee fails to register within the announcement period, it only shows that he is not a party to this lawsuit, and his entity  rights do not create disadvantage? Impact.

    (3) Referee effectiveness

    In a representative lawsuit with an uncertain number of representatives, the effectiveness of the judgment is manifested in two aspects: (1) it has binding force on all registered obligees;  If the right holder who participated in the registration files a lawsuit within the limitation period, and the people's court finds that his claim is valid, it shall rule to apply the judgment or ruling made by the people's court without making a separate judgment.

    In some cases, if the application of representative actions may be detrimental to the settlement of disputes, it is not appropriate to apply representative actions.  According to the "Notice on Relevant Issues Concerning the Acceptance of Civil Tort Dispute Cases Caused by False Statements in the Securities Market" promulgated by the Supreme People's Court on January 15, 2002, for civil compensation cases involving false statements, the people's courts should accept them in the form of individual or joint litigation  , and should not be accepted as a class action

    In this case, it is a representative lawsuit with a certain number of persons.

    ? 18 household owners elected Yuan Wu and Wu Hang as litigation representatives, and there was an episode.

    Yuan Wu has always been a warm-hearted person, and he is also the head of Building No. 9. Yuan Wu is usually involved in major and minor matters in the corridors, so it is normal to choose him as the litigation representative.

    It's just that Yuan Wu's energy is inevitably limited, and it seems impossible for this case to end in a short time. Everyone proposed to nominate one or two more representatives to form a small team of representatives with Yuan Wu to handle this matter.

    As Yuan Wu himself, he also agrees. After all, this matter involves the interests of every household. When interests are involved, things become a bit complicated.  Yuan Wu thought that when two or three people are together, they help each other, and they also have a supervisor to testify for each other.  (Remember the site URL: www.hlnovel.com
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