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Divorce Part Ⅰ How should both parties to answer the summons to the court and judges?
Nowadays, no one will connect the court with such situations as “a government office” or “making a complaint by drumming” in TV dramas with ancient costumes. More and more people feel solemnity of the court, prestige of the national emblem and most of all, everything concerning justice and integrity is closely linked with the court. In the modern TV drama, the court is usually held by the plaintiff sitting on the left, the accused on the right, the clerk in the middle and the judge sitting properly in front. How is the opening of a court session in reality?
No matter which city in China, from the prosperous areas to the remote ones, usually, buildings of public security organs may leave you majestic or solemn impressions when you are wandering about.
More than 70 % of the parties involved in divorce cases never enter into the court or have contacts with judges. So, they are unavoidably anxious when picking up the court’s phone concerning the lawsuit. In our opinions, in face of the court summons, the following issues should be paid attention to.
(1) Why do some judges look “cold” at the first sight?
Many persons involved in lawsuits conclude such kind of experiences faced with the judges: one feeling is that the judge is always very busy. Your talks with the judge are often interrupted by the excuse “Please present your ideas in the court session.” Another feeling is that the judge is always serious in speech and manner, making people feel “cold” or “strict”. In fact, all of these kinds of experiences are normal.
Divorce cases are the key sections concerning judgments on civil cases in various basic courts. Although in some particular areas, divorce cases amount to 40 % of civil cases, some judges have to judge ten or more than hundred divorce cases and other cases a year due to short of staff. With such big working stress, it is not extravagant to describe judges as fully occupied and that is why they have less time to take with persons involved before the court session. Furthermore, it is not quite fair for judges to talk with the persons involved about the case lest preconceived ideas should keep a strong hold in the judge’s mind. Generally, the judge will have a complete understanding about the certain case just before the opening of the court session. In short, it is not quite easy or essential for the persons involved to try to communicate with judges secretly.
As for judges’ cold faces, we think those are fairly natural as well.
First ,basically, judges are not allowed to act impetuously. They have to face various lawsuits or disputes on love or hatred every day, so generally they won’t be easily moved by misery expressions or tears of the person involved. I have a deep understanding at this point. In 1997, I handled my first divorce case. I remembered at that time I was even more nervous than the lady, my first client, talking about her heartbroken experiences with her eyes blurred with tears. I was at a loss and felt miserable for my client, busy in passing tissues to her. However, with time went by, I feel nothing to be impressed by the clients’ tears, so do judges. In the court session, divorce cases should go through specific procedures and regulations. Your injustice or loss should be proved with useful evidence other than your tears or complaints. Tears won’t win you with compassion and courteous treatment from judges.
Second, judges’ cold faces are the demand for their work. To some extents, judges’ cold faces are kind of working tactics, as every day judges have to come into contact with various people, some are reasonable and easy to talk and some are difficult to please. If the judge is too kind and accessible, the persons involved are sure to communicate more, trying to explore the judge’s intentions for the sake of his or her own benefits. In such cases, it is not favorable for judges to make fair judgments but more calls and more talks with the persons involved every day. Hence, it is essential for judges to keep distance among the persons involved.
Third, anyway, very few judges always hold a cold face just because of their low working quality. As they are always in the state of being besought, if they don’t have a right recognition on their power, they will gradually form the “bureaucrat” working attitude, impatient to the persons involved or even rebuking them.
(2) Issues should be paid attention to in receiving the court summons.
Postal services are the popular ways of serving court’s summons at present, but because of simplicity of divorce cases, many judges serve the court’s summons by informing the person involved of receiving in person via phone calls. In answering the summons, you’d better keep an eye on the opening time of a court session. You have the right of applying for a plea period if you need some time to collect evidence or prepare for proceedings based on the case itself.
In addition, you should also take notice of evidence afforded by the opposite party. Evidence submitted by the opposite party should be in duplicate by giving one copy to the accused.
In answering the summons, you may be asked for your attitude toward your marriage by the judge. At this time, it is better to show your decision of divorce or to ask for more time for consideration. Actually, there is no need to flare up your anger in face of the opposite party’s plaint in front of the judge, as you have the chance to state during the court session. In other words, if you put in too many bad words about the plaintiff in front of the judge at this moment, it will leave a bad impression on the judge about your marriage breakdown.
Please note that what kind of legal documents and the date you answer the summons should be remembered for future reference.
Part Ⅱ What are the aspects needed to be highlighted concerning time limits for the submitting of evidence?
The persons involved in divorce cases may usually keep an eye on substantial issues, such as extramarital affairs, family violence or true breakdown of marriage, etc, with relatively depreciation on the specific procedures and regulations. However, in fact, it is very important concerning procedures and regulations. For instance, if evidence isn’t afforded within time limits, a lawsuit with a big potential to win maybe fails signally.
Besides The Civil Procedure Law, some judicial interpretations concerning the specific procedures and regulations are issued by Supreme People’s Court. With regard to divorce cases, the following two documents are of great importance, i.e.: The Supreme People’s Court’s certain Regulations concerning the Application of Judging Civil Cases by Simple Procedures, The Supreme People’s Court’s certain Regulations concerning evidence on civil proceedings. By referring to the two interpretations, the persons involved should pay attention on the following issues.
(1) Flexibility concerning the court’s summons to both parties.
Simple procedures boast the features of being flexible and timesaving, based on basic principles of laws. It is quite natural and legal that you are orally served with the court’s summons or the notice for responding to the suit. Under the plea of the plaintiff, the People’s Court can adopt the following simple ways to summon both parties concerned and witnesses: an oral message, phone calls, emails and the like.
(2) Period of the plea for the defendant existing as usual.
Although the Supreme People’s Court has the right of summoning the defendant at any time, in case the defendant requests the written period of plea, pursuant to Article 113 of The Civil Procedure Law, the defendant can possess a 15-day plea. Therefore, it is a fault that the period of plea for the defendant can be deprived, now that the case goes through simple procedures. You can find relevant regulations at Article 7 in The Supreme People’s Court’s certain Regulations concerning the Application of Judging Civil Cases by Simple Procedures.
(3) Paying attention to time limits for the court’s evidence collection and for witnesses’ evidence offering.
In the event that the case goes through simple procedures, the applications for the court’s evidence collection and witnessing should be submitted before the time limit. In the event of common procedures, the application for the court’s investigation and evidence collection should not be late for 7 days before the time limit, while the application for witnessing should not be late for 10 days.
(4) Agreements of mediation reached through simple procedures may sometimes take effect instantly without signing for the agreement.
Pursuant to the Supreme People’s Court’s regulations, the agreement reached through mediation, with examination of the judge, shall take legal effect the day when both parties concerned sign or press stamps. The party has the right of applying for enforcement with the letter of civil mediation, in case the opposite party refuses to fulfill his or her obligations when the agreement takes effect.
This regulation is at odd with the common procedures. Specifically, the agreement through mediation shall instantly take effect with characters “The agreement shall instantly take effect by signing or pressing stamps of both parties concerned.” There is no need to sign the letter of mediation, so I’d remind clients of thinking it over before signing the agreement of mediation without fail.
(5) The persons involved shall be served with the notice if the court’s investigation and evidence-collection is not approved.
In case the application for the court’s investigation and evidence-collection isn’t authorized, the court shall serve the notice to the applicant. Generally speaking, reasons for not being approved shall be included in the notice, however, pursuant to the judicial interpretation of the Supreme People’s Court, the court is not requested to make explanation in the notice, but the notice shall be sent to the applicant. In the event that the applicant is unwilling to accept, he or she has the right to apply for reconsideration within 3 days after receiving and the court shall reply within 5 days. Usually it has no effect at all. As for the notice from the court, the person involved isn’t provided with the right of appeal by the Supreme People’s Court, which should be aware of.
(6) Regulations concerning the time limit for evidence collection and the extension.
Pursuant to Article 30 of regulations for evidence collection by the Supreme People’s Court, the person involved shall submit evidence to the People’s Court within the time limit; otherwise, it shall be regarded as abstaining of evidence collection. Unless the opposite party agrees to query, evidence submitted by the party involved behind time shall not be adopted during the judgment of the People’s Court. In other words, the increase of the persons involved, the change of request for lawsuit or a counter charge, etc shall be presented within the time limit for evidence collection.
The person involved can apply for extension at the People’s Court if he or she has difficulty in affording evidence within time limits. Please note that application for extension shall be made within the time limit.
(7) Issues concerning submitting new evidence;
Pursuant to regulations in The Civil Procedure Law, the person involved has the right of submitting new evidence in the court session. However, what does new evidence refer to?
Pursuant to the Supreme People’s Court’s regulations for evidence collection, new evidence at the first instance refers to: new evidence afforded after the time limit of the first instance; new evidence afforded beyond the time limits due to objective reasons or under the People’s Court’s approval, evidence submitted beyond the extension. New evidence that the persons involved afford at the first instance shall be brought up before the opening of the court session for the first instance or during the judgment.
New evidence at the second instance refers to: new evidence afforded after the end of the first instance; new evidence submitted by the person involved in the situation that the application for the court’s investigation and evidence collection was unauthorized at the first instance but regarded as necessary at the second instance. New evidence afforded by the person involved at the second instance shall be brought up before the opening of the court session for the second instance or during the judgment.
The people’s court shall not adopt evidence afforded behind the time limit, which is not thought of as new evidence. Hence, the time limit evidence collection, what kinds of evidence needed should be fully considered by the clients and the lawyers.
(8) Evidence of both parties and approval of facts in the process of mediation shall not be regarded as legal ground.
Mediation between both parties is an essential procedure in divorce cases. Pursuant to Article 67 of the Supreme People’s Court’s regulations for evidence collection, compromise made by the person involved for the purpose of mediation or reconciliation, which touches on approval of the case facts, shall not be regarded as unfavorable evidence to the person involved in the following lawsuits. Therefore, in the mediation organized by the court, the person involved can rest assured to express actual opinions and requests for division of common property.
(9) Issues concerning evidence effectiveness without appearing in court as a witness.
In divorce cases, evidence afforded by witness is a common way. However, out of various reasons, few witnesses are willing to appear in court but in the written form. Thus, is such evidence effective if witnesses don’t appear in court? In our opinions, as long as the witness is willing to afford evidence, it shall be regarded as effective to some extent. Pursuant to Article 69 of the Supreme People’s Court’s regulations for evidence collection, evidence afforded by the witness not appearing in court with reasonable excuses shall not be regarded as legal grounds for fact. In other words, such kind of evidence shall be adopted in link with other facts.
Part Ⅲ How should one party deal with the relation with the other party and his or her lawyer?
At this moment in court, generally, both parties head toward a deadlock. Their hearts are flooded with no more love but resentment and rage, but anyway, what you are facing is not your foe but your former spouse you once decided to live with for the whole life, so my suggestion is that you should try to tolerant as much as possible based on your principles in dealing with things. While to lawyers, they should observe and analyze the situation from an objective viewpoint instead of being easily moved or influenced by the person involved.
In dealing with relations with the other party, the following issues should be paid attention to.
(1) Communication between each other is the best way of resolving conflicts.
After all, both parties once deeply loved, so there is really no need to treat each other as foes in analyzing the case. There are too many variables in the whole case, with the program of the lawsuit and mentality changes of the persons involved. Lawyers are especially important in bridging communication between both parties. In the national divorce lawsuits, divorce by agreement has less impact than divorce proceedings concerning the divorce cost and harm emotionally. Hence, both parties should keep in touch with each other in dealing with relations for the purpose of avoid doing things on impulse or leaving some leeway for yourselves.
(2) In communication, both parties should take priority on equality.
No matter who is right and who is wrong, generally, divorce cannot be caused owing to one party’s reasons. Now that both parties got married of your own will, the divorce case should be conducted equally. Both “asking for too much” and “compromising too much” are not proper at all in dealing with the divorce case. Both parties can only reach agreements by mutual consent on the basis of equality.
(3) In conducting discrepancy and conflicts, disputes should not be ignited or neglected.
In divorce cases, both parties are easy to resolve disputes with self emotions, through legal measures and moral standards as well. In fact, the person involved will unconsciously request the other party to tell the truth and act reasonably based on his or her own moral standards. Therefore, in my opinion, it is really meaningless to argue for the right and wrong at the moment if the other party’s behaviors disappoint you very much.
(4) Both parties should narrow gaps based on legal grounds, with the help of common senses.
It is sure that both parties cannot narrow their gaps themselves but to go to law. Laws are applicable to both parties regardless of one’s own judgment standards. In divorce cases, is there a criterion on how to balance the gap between the expected value and the actual compensation for both parties? The answer is the laws. Hence, it is the most practical and fair in negotiating ways of division in line of legal grounds. Of course, to some extent, it is proper that emotional and moral elements are involved in negotiating the amount of compensation.
(5) “Safety first”, i.e. self-precaution is essential in dealing with the divorce case.
Not only the person involved but the lawyer as well should be on the alert for the other parties’ unreasonable behaviors on impulse. As for the persons involved, there may be family violence, assault and battery or restraint on personal freedom and so on. The person involved who meets with such situations should not ignite conflicts blindly. So do lawyers. Sometimes the persons involved will blame the failure for the lawyer’s lousy ideas or they will force the lawyers to afford relatively important evidence from their points of view, even through violence. In other words, the lawyer should not negotiate at the opposite party’s home or express too many personal opinions in the presence of the opposite party’s relatives. In case unhappiness occurs at the opposite party’s home in the process of negotiation or the opposite party grabs the proceedings evidence from the lawyer, the lawyer’s own rights and interests cannot be safeguarded; accordingly, the rights and wrongs cannot be clearly explained for this.
Part Ⅳ How should both parties deal with the relations with the judge?
To the majority of the persons involved, the court is solemn and respectful and the judge is a mysterious figure. What kind of things should be taken care of when coming into contact with the judge for the first time?
(1) Holding normal mortality.
The special characteristic of the profession “judge” makes it full of mystery, but anyway, the judges are ordinary persons, too. Hence, when you contact with the judge for the first time, you should show full respect to the judge and be amenable to the concerning procedures requested by the judge. There is no need to bear fear of the judge, such as easy to get excited or afraid of talking in front of the judge. If some persons involved are easy to be impacted by the surroundings, I suggest you wandering more around the court, reading more books concerning laws or trying to communicating more with the lawyer in order to relax yourselves mentally.
(2) Having a better understanding about the judge’s limited time schedules.
The judges conducting divorce cases generally have many cases at hands. To the person involved, the case is of great importance; the earlier the case can be conducted, the earlier he can free himself from misery or anxiety, while to the judge, as long as he close a case within the legal time limits, it is entirely normal. Sometimes, some persons involved maybe urge the judge or call him even with family complaints just for the purpose of dealing with his case earlier or trying to leave a good impression on the judge, But in fact, all of these has little meaning at all. Furthermore, if the judge attends to the person involved halfheartedly outside the court, he or she may suspect that the other party has bought over the judge. In other words, speculation between each other may cause misunderstanding.
(3) Having a better understanding about the judge’s position in mediation.
It is not an easy job for the judge to face two opposing parties and try to find a middle way comforting both parties, subject to the concerning laws and regulations. Some persons involved may try to talk more with the judge with a view to taking the favorable position in the court; some persons involved may speculate some bad possibility if the judge speaks something unfavorable to him or her. Therefore, it is especially important that you should better understand the judge’s position in mediation and his wordings & behaviors.
(4) Keeping contact with the judge appropriately.
After all, the judge will make the final judgment upon disputes between the plaintiff and the defendant. So appropriate communication with the judge is essential within the pale of law, especially for those spot events or disputes that cannot be resolved during the court session period. For instance, any application materials or legal documents, such as the feedback for authorized investigation, the announcement of spot events like assault and battery or transfer of common property, progress of the mediation, etc, should be submitted in time to the judge with a view to assisting the judgment, which will generally be supported or recognized by the judge.
(5) Sometimes, having the courage to say “No” to the judge.
Recognition or obedience to the judge should not be done unprincipledly. As for the specific case, some judge may adopt some means in mediation, such as “In my personal opinion …” or “Our court shall not support your request to some extent.” Of course, some of them may be facts, while some of them may be misinterpretation or a misleading expression from the judge for the purpose of concluding the case earlier. Hence, if your reasonable application is declined by the judge on purpose or you are forced to accept certain conditions at the expense of your legal rights and interests, you have the right to refuse the judge’s proposal. And you don’t need to worry too much if your refusal may offend the judge.
Part Ⅴ In what conditions are preservation of property needed?
In divorce cases, in case the other party may hide, transfer or sell the common property, the person involved can apply for property preservation by the People’s Court, such as seizing or freezing the common property by legal authority, to safeguard your legal rights and interests. For instance, one of the parties transfers the common property or dumps stocks at the stock exchange for capitals on purpose.
Part Ⅵ What are the types of preservation of property?
(1) Property insurance for the premises and the relevant procedures.
If one of the parties may transfer or is transferring the property right for the common premises, the person involved can apply for property insurance for the premises by entirety. In fact, in the event that the premises are purchased under the name of one of the parties, even though the premises belong to common property, the person concerned has the right to transfer ownership and go through legal trading procedures without the other party’s approval and the person concerned may have the payment for selling the premises all to oneself. If the buyer is on a good intention and has made half of the payment, the court shall regard the transfer as effective. That means the other party can do nothing but claim for compensation to the party transferring the common premises without authorization.
In accordance with the current laws and regulations, the person involved who applies for property insurance against the other party’s property should provide the court with the certain collaterals in case that the application for property insurance is wrong, the other party can get compensation from the collateral.
The person involved who applies for property insurance can use the property under his or her own name or the third party’s property as the collaterals. If the person involved or the guarantor provides collaterals in cash, usually, the amount of collaterals should be equal to that of property to be insured. If the common premises are insured, you’d better also take another premise as collaterals. The court will accept the application if the prices of two premises are nearly the same. Of course, if the collateral for the premises is provided in cash, generally, the guarantee money is charged in the certain proportion of the housing price.
①Property insurance on common premises under the couple’s names by using another premise as the collateral.
In practice, in case the premises were purchased under one party of the couple or both parties and/or the third person, such as father or mother of one of the parties or one of the siblings, the court shall not accept the application for the property insurance as the third party’s rights and interests are involved.
Materials that need for property insurance by using another premise as the collateral:
First, the letter of application for property preservation. (The format attached)
Second, the deed of security for property insurance with signatures of all the persons who are provided with the property right. (The format attached)
Third, the copy of ID cards of the persons who are provided with the property right.
Fourth, the script of Certification of Title as the collateral.
Fifth, the registers for the property right or Certification of Title for the premises to be seized.
Sixth, Expenses for the application for property insurance by the court.
② Property preservation on common premises under the couple’s names by using cash as the collateral.
Materials that need under such circumstance:
First, the letter of application for property preservation.
Second, the deed of security for property preservation; If cash is provided as a collateral, to some courts, only the applicant’s deposits shall be acceptable rather than the third party’s. If this sum of money is borrowed from the other party, the concerning loan-making procedures and certificates for cash flow should be kept for reference; otherwise, if the other party claims the cash as a collateral is common property as well, some other unexpected troubles to the applicant are unavoidable.
Third, Transfer the cash as a collateral into the assigned bank account. Generally speaking, the court shall not provide the bank account for foreign currency; therefore, if US dollars or Yen is provided as a collateral, it should be exchanged into RMB in advance.
Fourth, the register for the property right or Certification of Title for the premises to be seized.
In case the court accepts the application for property preservation, the summons for property preservation shall be served to the real estate trading center restricting the premises to be sold or purchased during a certain period of time.
(2) Property preservation for stock account and the concerning procedures.
Generally speaking, if stocks are seized by the court, the stock account of the person concerned is only permitted cash-in other than cash-out; while stock buying and selling is allowed, for the purpose of diminishing the person’s economic loss due to property preservation.
If the applicant applies for seizing the other person’s property in securities by the court, the concerning legal documents similar to the premises insurance should be submitted to the court, such as the letter of application; the deed of security; basic information about the stock account of the person concerned, etc.
If the application is accepted by the court, the judicial decision shall be made in line with laws; meanwhile, the stock account of the person concerned shall be frozen at the opening stock exchange pursuant to the relevant laws.
(3) Property preservation for bank deposits and the relevant procedures.
In case the applicant applies for property preservation for the bank deposits, cash or other property of the equal value should be provided as collateral by the court. The bank account of the person concerned shall be frozen at the opening bank in case the sufficient guarantee money is provided after the court’s examination and approval. The person concerned cannot withdraw cash from his or her bank account.
(4) Property preservation for private cars and the relevant procedures.
After examining the applicant’s materials for car insurance and the application is accepted, the court official shall go through the insurance procedures for seizing the private car at the vehicle administration bureau. After the judicial decision takes effect, the car can only be used rather than buying & selling or transfer.
Part Ⅶ Which questions should be highlighted concerning the application for preservation of property?
(1) Application for property preservation is closely linked with the divorce proceedings.
(2) Difference concerning guarantors between a natural person and a legal person for the company or enterprise
(3) Risks for property preservation should be taken notice of.
(4) Written papers for the concerning legal procedures should be kept for reference.
Part Ⅷ What kinds of evidences can a lawyer collect?
At present, due to restrictions on laws and regulations and some systematic regulations in different trades, the person involved, even if the lawyer, has narrower and narrower scopes for evidence collection. However, to some extent, evidence is crucial to the success of the lawsuit. Therefore, how to obtain more useful evidence and how to request for the judicial help with evidence collection is especially important in the process of the lawsuit.
In practice, the application to the judicial help with evidence collection is quite limited, generally only including those evidence cannot be obtained by the person involved or the lawyer owing to some objective reasons. Taking Shanghai as an example, there are only two ways in applying for the judicial help with evidence collection, i.e.: First, applying for the direct judicial investigation and evidence collection; Second, applying for the letter of judicial investigation with the execution of the lawyer.
The court issues the letter of judicial investigation to the organization concerned with the execution of the lawyer. In other words, the court commissions the lawyer to investigate and collect evidence in the organization concerned, for the purpose of saving the court’s time and workload.
In fact, the system of the above-mentioned method is widely adopted in Shanghai and it is quite effective to some extent. To most organizations, they will cooperate for the evidence collection allowing for the court’s power, otherwise, the lawyer may not even get the income certificate for the case. In divorce cases, the letter of judicial investigation is applicable to the following aspects:
①Investigation for stock trading and stock capital scripts.
② Investigation for reports to the police. (Some public security organs may refuse the lawyer to copy or jot down the contents but to read only, such as the Huangpu public security organ in Shanghai.)
③Investigation for detailed files for the premises.
④Investigation for information about the income of the person involved.
⑤Investigation for the case history of the person involved. (Such as family violence, treatment for venereal disease.)
⑥Other situations required the letter of judicial investigation.
As far as we know, the implementation of the system by adopting the letter of judicial investigation is not quite popular, especially in the majority of inner cities, so it is relatively more difficult for the person involved and the lawyer to investigate and collect evidence needed.
Part Ⅸ Under what conditions can a party apply for the court to collect evidences?
Application for the court to collect the evidence is appropriate to the following situations:
(1) Investigation on bank deposits of the opposite party
At present, most courts may request the person involved to provide the specific bank names and saving accounts, such as the savings bank at ZhongYuan Rd, Puyang Brand, affiliated to China Construction Bank. However, in fact, the court still requests the person involved to provide detailed information about the saving accounts, in spite that the court can learn about the opposite party’s savings information based on the opening account at the certain bank. Under such circumstance, we suggest the person involved renegotiating with the judge to present your difficulty in obtaining the other party’s saving account. As long as the request is reasonable, the judge taking charge of the case will reconsider the request at his discretion.
(2) Investigation on loan information of the reserve fund of the other party.
Operation concerning loans of the reserve fund is mainly carried out by the bank. Previously, the lawyer with the letter of investigation could check the loan information of the other party, but now more and more banks refuse to provide concerning information to the lawyer.
(3) Investigation on reports to the police and records on police interrogation,
At present, most public security organs may refuse to provide information on record to the lawyer with a letter of investigation for the reason that such kind of investigation shall be made by the official at a courthouse. So, only the judge has the right to obtain such information.
(4) Other evidence that must be submitted to the court.
Usually, it is quite difficult to apply for the court’s investigation, as the court’s internal evidence collection is in the charge of the personnel outside the court or the judge himself/herself. However, the judge is fully occupied every day, so it is really not an easy job for him to collect evidence himself.
Part Ⅹ What will one party do if he or she has the idea that the adverse party has some friends in the court?
As the agent, we will still be asked “Do you have the ‘potential backer’ in the court?” or “How’s your relationship with that judge?”. From these points of view, we can conclude that the persons involved are very concerned with these. In the proceedings, it is not quite true that the other party has some “potential backers” in the court if some words of the judge have some inclination or the result is not favorable to the person involved. Someone says, “Going to law equals setting up relations.” I don’t agree with this. With the progress of the current building of the legal system and the specialty of divorce cases, the “potential backers” in the court cannot play a big part in divorce cases. The reasons concerned are listed as follows:
(1) There are specific laws & regulations concerning the attributes and principles in conducting divorce cases.
Divorce cases are different from other economic cases, which generally focus on three parts, i.e.: ① the evidence on marriage breakdown ② the child-care right ③ division of common property. The first part is the basic element, if there is no specific evidence showing marriage breakdown, let alone the second focus or the third one. Furthermore, in practice, the court has established strict principles on discrimination concerning whether the couple has broken down or not. As such, the judge has no right to judge the divorce without sufficient legal grounds on marriage breakdown, even if the person involved asks the influence person in court for help. In other words, If one of the parties don’t want to get divorced with a well intention to improve the conjugal relation and there is no specific evidence on marriage breakdown, generally the court shall not support the divorce request. Another example, if both parties cannot settle disputes on the attributes of common property, generally speaking, the judge shall divide the common property half for each and give a definite answer “yes or no” to the other controversial property. It is basically impossible for the judge to confuse right and wrong. Hence, there is really no need to put great stock in the importance of the “potential backers” in the court.
(2) The judge shall consider carefully on the basis of evidence in exercising his right of free decision.
In some divorce cases, the judge shall decide allotment of common property in quantity for both parties at his discretion, but the judge’s free right of decision is limited, in other words, the judge cannot follow his inclinations in judging the case. The inclinations of more care for the party bringing up issue or for the party without fault are not quite obvious in the common divorce cases. For instance, as for the common property of 200,000 Yuan, it is regular to divide 120,000 Yuan to the female party and 80,000 Yuan to the male party, taking account of the female party without faults. However, the possibility that the female party gets 150,000 Yuan or the entire property is really slim. In conclusion, the judge shall not easily break through the limitation of exercising the free right of decision; otherwise, the case may be in trouble.
(3) Generally, the judge shall not take risk of ruining his future owing to one case.
At present, the threshold of being a judge becomes higher and higher. Generally, the potential judge should have a Master’s degree or higher in Shanghai. So, it is not an easy job for the judges to maintain the position in face of the lure from those who want to ask for help. Therefore, based on my 7-year working experience in this field, especially in Shanghai, most judges are not willing to be influenced by the so-called relations in the process of lawsuit.
Even if the person involved finds the judge in charge of the case or the higher-up of the judge asks him for help, the judge himself shall make judgment based on the specific situations. In other words, the judge cannot show preference for the person in the unfavorable situations. Take divorce cases as an example, if the person having the potential backer in the court wants to get divorced, but the other party strongly opposes to, generally, the judge shall not directly make divorce judgment for the first instance without legal grounds for marriage breakdown. The reason is that the judge exercising adjudication is supervised by the court and the legal system. For example, in Shanghai, there are many effective supervision modes, such as “the judge’s visiting day”, “the judge’s online mailbox”, the N.P.C supervision and social supervision by public opinion; therefore, the worry about “officials helping one another” can be reduced to the minimum. What’s more, the judge is impossible to offend against discipline for only one case. As such, in my opinion, the concept of excessively emphasizing the effect of the potential backers in the court or ascribing the blame for the court’s judgment to the so-called relations are biased, due to lack of fully understanding about the legal grounds.
Part Ⅺ Is it necessary to have a private conversation with the judge before the lawsuit?
In our opinions, there are only two so-called benefits to ask the influence person in the court for help in the process of lawsuit.
(1) Psychological benefit.
Now that they have turned to the “potential backer” in the court, some persons involved may feel better, especially when the judge is more polite to them and the final judgment is made on the square. Anyway, to some extent, the process of lawsuit is just like a psychological war. Sometimes, some persons involved may think only counting on the lawyer is not secure, so they will try to ask the influence person in the court for help. Some clever judges may talk more gently instead of gruffly to the person who has turned to the “backer” for help, though without preference for both parties. Thus, the person concerned may feel great relieved mentally.
(2) Benefit on inclined effects in mediation.
Mediation is mandatory legal proceedings in divorce cases. Generally, the judge shall arrange mediation between both parties in the court or through calls or oral messages. As the persons involved should bear the results of mediation and should not regret any more, some judges may show due respect for the party who has asked the influence person in the court for help. Of course, the inclined effects we mention hereof refer to well-intentioned persuasion favorable to both parties in order to resolve disputes earlier rather than illegal distortion or vicious mediation. For example, with regard to division of common property, the judge may mediate like this, “The total amount of house payment is 1,000,000 Yuan: the male party gets 550,000 Yuan, while the female party 450,000 Yuan. You’d better think it over because you may not get more than half through the court’s judgment.” Sometimes, the judge may put up a proposal in the halfway for reference based on the seriousness of disputes between both parties. All the plans and proposals made in the mediation are by no means mandatory, even if the judge may have some inclination to one of the parties. It completely depends on the decision of the persons involved based on their judgment on facts and understanding on laws, including their own psychological request for compensation. Hence, the mediation itself is to resolve disputes between both parties earlier, so the persons involved don’t need to worry about too much, even if the judge seems to have some inclination in mediation.
Part Ⅻ What will one party do if the adverse party fails to appear in court?
At present, the major reasons for the absence of the person involved are that the court’s summons are not served up to standards or the concerning procedures are not personalized; on the contrary, it is quite rare that the receivers refuse to attend the court session.
The common reasons for the absence of the person involved in the court session:
①The defendant doesn’t receive the court summons at all. Nowadays, the court summons are widely served by the postal express; if the address provided by the plaintiff is wrong or the defendant isn’t in these days or the summons are signed by an acting person and the like, the defendant is unlikely to get informed of the court session. Under such circumstance, the court shall not open the court session in the absence of the defendant.
②The defendant refuses to sign the court summons by telling a lie to the postman or doesn’t admit the valid summons signed by an acting person (neighbors, colleagues, etc.). In other words, for his or her personal purposes, the person involved pretends to be ignorant of the court summons for responding to the suit. Under such circumstance, the court shall not open the court session in the absence of the defendant.
③The defendant turns his or her back or puts off on purpose with regard to the summons for the court session through calls or oral messages, Because these kinds of notice have no written feedback, the court shall not take risks of opening the court session in the absence of the person involved.
To be specific, as for the absence of the defendant and the court has no alternative but to open the court session at another time, the plaintiffs, especially those who turn up from afar, are so angry that they maybe burst out their anger on the lawyer other than the judge. To be fair, the lawyer should feel wronged most as a great amount of time and energy on the case is in vain. In my personal opinion, in such a situation, the court cannot shirk responsibility to some extent, because if the court summons are not received or there is no feedback, the judge should assign the clerk to call the defendant again to make sure he or she has kept informed of the court summons. Of course, on the other hand, there is really no need for the persons involved to get too much irate, as it is a kind of loophole in procedures or the status quo rather than the judge’s fault on purpose. Your quick temper or anger towards this has no use in resolving the divorce case earlier but to let the opposite party get the upper hand mentally if he or she puts off the time deliberately as a kind of tactic.
Part ⅩⅢ How should both parties draft the content of the evidences and submit it to the court?
It is especially important concerning submission of evidence contents not only to the plaintiff but the defendant as well. Generally, in divorce cases, evidence shall be collected around three aspects:
1. Evidence concerning whether the couple has really faced the marriage breakdown.
2. Evidence concerning the child-care right.
3. Evidence concerning the division of common property.
In is better for the person involved to submit a catalogue of evidence coving the above-mentioned three aspects within time limits, i.e.: making evidence title and its contents as clearly as possible. Take evidence for marriage breakdown as an example.
Evidence catalogue
(Concerning the defendant’s faults emotionally)
--- Submitted by the plaintiff Amei
| Serial No. |
Titles |
Contents |
Comments |
| 1 |
ID card and Marriage Certificate of the plaintiff |
The plaintiff’s background information & the conjugal relation between the plaintiff and the defendant |
- |
| 2 |
Chatting records via QQ between the defendant and his friend on 2.3.2005 |
The defendant is unfaithful to his wife with a female colleague |
The defendant's QQ No.: 123X444221; His friend's QQ No.: 4223X2233. |
| 3 |
Sound recording of the defendant |
The defendant personally admitted that the chatting records via QQ were true. |
Time for recording: 14.3.2005
Venue:
Recorder:
Persons on the scene: |
| 4 |
The telephone bills (10.2004-5.2005) showing the intimate communication between the defendant and his female colleague |
Communication between the defendant and his female colleague was excessively frequent, always calling each other after 11 o’clock midnight. |
The defendant’s mobile phone No.: 1133333X237
His female colleague’s mobile phone No.: 133X4444487 |
| 5 |
The basic information list of the mobile users from China Mobile, Shanghai branch |
1133333X237 belongs to the defendant. |
- |
su
bmitted by Mei
May.8.2005
Evidence catalogues concerning the other two aspects can be combined as one catalogue to the court, if there are not too many contents thereof.
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