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Part I: What are both parties’ rights and obligations during the period of litigation?
No matter the court session is arranged in the court or the affiliated courtroom, in a luxurious or humble decoration, the parties’ rights and obligations shall be announced before the court session, unless both parties have commissioned lawyers and they agree to omit this segment. But in my opinion, it is really important to be informed of rights and obligations.
The parties involved are possessed with many rights and obligations during the period of litigation, the most important items of which are listed as follows:
(1) The party involved has the right to commission a law-agent.
Subject to the current laws and regulations, it is allowed to commission one or two law-agents in case the party involved is unconfident to litigant on one’s own or the party involved cannot turn up for some reasons. The law-agent herein can be a lawyer or the party’s colleague or friend, etc.
If the person involved commissions a law-agent, he should sign a contract with the law-agent and submit a letter of authorization to the court, with the official letter issued by the law firm.
If the person involved commissions his friend or colleague to appear in court, only a letter of authorization should be submitted to the court. Generally, the court shall approve the request, as long as the authorized party will not harm the person’s rights and interests. The authorized party should bring ID card with him for the court’s verification.
(2) The party involved has the right to apply for challenge.
Challenge system herein refers that the officials in charge of the trial and other persons involved who have relations concerning gains and losses or may impact the righteous judgment of the case, should withdraw from the trial. Such persons include: the party involved or close relatives of the party involved or the law-agent; the officials in charge of the trial, the judgment of which may direct or indirect impact their personal rights and interests; the officials have other relations with the party involved, which may influence the righteous judgment of the case. Generally speaking, it is an once-in-a-lifetime chance that the party involved should apply for the challenge of the judge.
(3) The party involved has the right to adduce evidence from his or her own viewpoints.
Evidence-adducing is not only the party’s obligations but his rights as well. In divorce cases, such situations maybe turn up in the trial, making the confrontation mired in deadlock: the party involved is unwilling to confront or the judge doesn’t permit the party involved to confront, etc. For instance, the plaintiff requests to play the recording concerning the defendant’s extramarital affairs, while the defendant refuses to confront for the reason that the recording isn’t made under his approval or the recording is in a digital format. Sometimes the judge may persuade the party involved not to play in order to avoid troubles. In our opinions, the party involved has the right to adduce evidence from his or her own viewpoints. Of course, the authenticity and legal effect of the evidence should be recognized by the judge based on specific situations after the confrontation. Therefore, the party involved should insist the confrontation on the recording if such right is deprived by the court. Furthermore, the party involved may apply for the court clerk to write down the request in the trial record if the judge refuses again. Usually, the court may agree to play the recording if the party involved firmly insists on.
(4) The party involved has the right to question the other party.
At the end of the court investigation, the court should give chance to both parties for questioning each other. In some cases, this segment maybe counts for a lot to make clear the facts. However, without the lawyer present in the court, the party involved may not be aware of this right or even the judge may forget to ask for both parties’ opinions but to directly enter into the debate.
(5) Both parties have the right to debate between each other.
Some petitioners or the party applying for review may complain that they have no chance to express their opinions in the court, when they state the reasons for losing the lawsuit. In our opinions, such situations are unlikely to happen, because both parties’ debate in court is one of the basic rights in the proceedings.
However, when and what the party involved can express his or her opinions are the key points. There are maybe two kinds of situations that the party involved is interrupted by the judge.
First, the party involved doesn’t express opinions at the proper time. In the court, all the procedures should be gone through under the judge’s orders. So, the party involved is supposed to state according to the legal procedures instead of interposing or interrupting the other party’s remarks at any time.
Second, the party involved diverges from the case or only repeats the same or similar opinions in the trial. The time of trial is limited, so statements and debates in court should be focused on the disputes. It is normal that the judge should interrupt the party involved if he or she diverges from the case or only repeats the same or similar contents in the court.
(6) The party involved has the right to get the adjudication agreement.
No matter the case is judged or closed by agreement in the end, the party involved has the right to get the written judgment. In some divorce cases, both parties may reach on agreements through mediation in the end, so the judge just makes a reconciliation agreement other than the written judgment. Under such circumstance, the party involved has the right to copy the agreement or the records to testify the outcome of the case.
In practice, we heard that some parties involved said they didn’t get the reconciliation agreement from the court. Usually, it shall happen only in the serving procedures, for example, the agreement served by the court is not signed by an acting person without informing of the party involved. Under such circumstance, the party involved should contact the judge in charge of the case, because once the agreement is served, the judgment of the case enters into effect.
(7) The party involved has the right to appeal.
To ordinary divorce cases, the party involved has the right to appeal for review. In case the party involved appeals, the case shall be remitted to the higher court. Generally speaking, the court of second instance shall not amend the judgment in case the party involved appeals for reviewing the evidence of marriage breakdown. Hence, the right of appeal should be carefully considered within 15 days after receiving the written judgment for first instance.
Part II: What are the procedures of court investigation?
As implied in the name, the court investigation refers that the judge investigates background information of both parties, including basic identity, the matrimonial experiences, reasons for the current marriage breakdown and both parties’ attitudes towards the marriage and so on.
Generally speaking, before the formal court session, with both parties seated in the court, the court clerk shall check up the presence of both parties and other visitors who are supposed to attend the lawsuits and report to the judge. Afterwards, the clerk shall declare the court disciplines. For instance, visitors should not make speech or move at will; Pictures should not be taken, etc.
After the court session opens, the presiding judge shall check up the persons involved in presence one by one at first, including name, age, career, etc, which are the basic investigation for the persons involved and their agents’ background information.
Then, the plaintiff makes statements about facts and reasons for the lawsuit. Generally, the plaintiff will read out the contents in the plaint. After that, the judge shall ask the defendant’s attitudes toward the plaintiff’s lawsuit, such as “Does the defendant agree to get divorced?” or “Have you reached agreements on child custody and division of common property?”. In case the defendant specifically opposes to the divorce, questions concerning issue and property shall not be further discussed.
If the defendant has prepared the plea, the judge shall ask the defendant to read it out; if not, the defendant shall deliver his or her opinions on the facts and reasons presented by the plaintiff. Of course, usually, the defendant is sure to complain about the plaintiff’s fabrication and wrongdoings.
During the court investigation, what the judge shall focus on is the following facts, such as “when did both parties get to know each other?”; “When did both parties turn to be lovers?”; “When did both parties give birth to the next generation?”; “When and why did both parties break down and when did they separate?”, etc. Rights and wrongs mainly depend on the evidence collected by the persons involved. Usually, the court shall not accept the evidence as the legal grounds if the evidence itself isn’t persuasive, no matter how professional the remark is.
The judge may take the initiative to question the person involved, if some facts are not clearly expressed in his or her statements. The questions asked by the judge are relatively crucial with certain objectives, so the persons involved should take them seriously and answer after thinking them over.
The last segment of the court investigation is that both parties ask questions each other. In some divorce cases, this segment is especially important, so I suggest the persons involved make the most of this right asking questions concerned with the case. For instance, in a divorce case, the plaintiff requested to divide bank deposits of 300,000 Yuan in the defendant’s name. However this figure was guessed by the plaintiff based on the defendant’s economic conditions, without knowing the specific information about the amount or the bank account. Hence, the defendant argued that the 300, 000 Yuan was borrowed from his friends for going abroad. The defendant’s answer confirmed his possession of 300,000 Yuan. During the mutual debate, the plaintiff’s lawyer asked the defendant three questions:
First, where did you borrow 300,000 Yuan from?
Second, do you have a receipt for the loan? If so, when did you write it and where was it?
Third, how did the lender make the loan, cash or credit transmit and which bank did you save 300,000 Yuan in?
The continuous three questions made the defendant feel anxious and it was hard to make his statement consistent and he knew the outcome of providing false evidence from his agent. Finally, the case was closed as a result of the defendant’s compromise on mediation.
In conclusion, sometimes it is one of the best ways by seizing the other party’s lapses and keeping asking questions in order to upset his or her preparation in thought.
Part III: What are the tactics and skills for confrontation?
Confrontation is also a key segment in divorce proceedings. How to collect evidence and how to confront with each other should be taken particularly notice of by both parties in divorce cases. The evidence should be provided with “three characters: i.e.: legitimacy, authenticity and integration. So, confrontation between both parties should be basically concerned in the three aspects.
“Legitimacy” mainly indicates that the source of evidence should be lawful. For instance, the female party hires a private detective to shoot by the spy camera to collect evidence of the male party’s extramarital affairs, which is not proper in this aspect. Pursuant to the concerning laws and regulations, the spy camera is prohibited from using except for the investigation department in China. As such, the evidence collected through the illegal equipment cannot be recognized by the court. Another example, the person involved breaks into the third party’s place for the purpose of collecting the spouse’s extramarital loves, such as love letters. Evidence collected in this way cannot be recognized as legal grounds, because the person involved offends against the law at first.
“Authenticity” mainly indicates that the contents of evidence should be true. For instance, the telephone bills that testify the intimate communication between the third party and the defendant but without China Telecom’s official stamps may not be adopted by the court, in case the defendant files an objection. Authenticity plays an important role in the court session during the confrontation between both parties, so the person involved should never forget the scripts of key evidence, causing unnecessary inconvenience during the proceedings.
“Integration” mainly indicates that evidence presented should be integrated with the disputes in the case. For instance, in divorce cases, the plaintiff submits the written judgment of the defendant’s uncle due to the offence of intentional injury, to testify the defendant’s family has an inclination for family violence. Faced with such evidence, the defendant may confront that his family member’s act of violence has nothing to do with the defendant himself, as well as the adjudication of the divorce case. Therefore, the evidence may not be adopted by the court due to lack of integration.
Furthermore, during the court session, confrontation regarding evidence should be made based on the evidence itself as well as the concerning procedures. For example, in case the evidence isn’t presented during the period of evidence collection or cannot be defined as new evidence, the other party has the right to refuse the confrontation.
Part IV: How should one party response to the other party’ s false evidences？
“False” evidence is quite common in the aspect of property division, which is direct concerned with the parties’ economic rights and interests; by contract, they shall not afford false evidence on child custody and one’s faults emotionally, at most telling some lies.
(1) Identification and measures concerning offering “false” evidence on liabilities.
“False” evidence on liabilities is especially common on the premises, because in big cities, it costs the person involved more than 100,000 Yuan or even a million Yuan in purchasing the premises, which has a closed relationship with one’s economic rights and interests.
Such fake evidence mostly reflects on the sources of housing payment. The persons involved may claim that they make a loan from their parents or other relatives, even with a receipt or an agreement as the evidence. For instance, in 2002, we dealt with such a divorce case. In the process of divorce, the male party maintained that he borrowed 300,000 Yuan from his parents in purchasing the premises worth 400,000 Yuan two years ago, with the receipt, his father’s evidence and the agreement for repayment as the evidence. Therefore, he requested the female party to bear the liabilities of 300,000 Yuan together. But the female party argued that she never heard of borrowing money from his parents and insisted that the premises were purchased by the common property earned together. The male party answered back with the reason that they couldn’t save 300,000 Yuan in no more than three years’ family life based on both parties’ income conditions.
Therefore, how can we conduct the liabilities concerning the premises in this case?
First, it is a divorce case, so it is sure to cover three parts, i.e.: evidence on marriage breakdown, child custody and division of common property. As for the liabilities related with the third party, the court shall not make judgment in a divorce case, which may violate the third party’s rights and interests, because in the divorce case, there are only the plaintiff and the defendant, the debtor cannot be set as the third party. For instance, in the above-mentioned case, if the liabilities are identified as false, the third party, the male party’s parents, has no right to appeal, let alone to safeguard their rights. Hence, in divorce cases, the court shall not conduct the dispute related to the third party’s rights and interests, especially when each party sticks to his or her own argument. In other words, if the male party insists on the existence of the liabilities, his parents should take another legal action concerning the liabilities in the court.
Second, even if the male party’s parents go to law for the liabilities, the lawsuit is not sure to be successful. The reason is that the facts concerning the debts should be the main focus in the lawsuit. What’s more, to be specific, with a view to the special relation between the male party and the debtor, his parents, only the receipt cannot completely testify the facts of the creditor’s right and debts. To the female party, other facts should be paid attention to, such as the time of loan-making in the receipt; the source of 300,000 Yuan to his parents; the ways of transmitting money into the male party’s account and the concerning bank papers and so on. Only one receipt is basically impossible to be identified as the evidence for the liabilities by the court.
Third, the male party may have to take civil or even criminal responsibility if he, in collusion with his parents, offers false evidence to the court. In other words, the persons involved have to bear the huge mental pressure in offering false evidence for liabilities.
(2) Identification and measures concerning offering “false” evidence on expenses.
For the purpose to deduct the amount of common property under his name or control, the person involved may afford proof of expenditure.
In meeting with false evidence for expenditure, you’d better deal with it based on the following aspects:
First, concentration on what the expenses were used for based on the other party’s statements.
Only the family expenses can be regarded as the reasonable expenditure. Reasons such as giving to his relatives or losing through gambling, etc cannot be accepted.
Second, concentration on whether the other party can afford effective proof for such expenditure.
The other party should give evidence for the amount of family expenses beyond the reasonable scope. For instance, the other party claimed that he withdrew 30,000 Yuan from the bank 2 months ago and used up on family expenses, while in fact normally one or two thousand Yuan is enough per month or he hasn’t spent any on family expenses. Under such circumstance, the person involved has the right to request the other party to list the specific items and expenses with the concerning receipts. Please note that the receipts provided by the other party should be standard receipts and be identified based on authenticity and possibility. Generally, the court shall not support the request in case the party cannot afford necessary and reasonable receipts for the big sum of expenses in a short period of time.
Third, concentration on whether the party used up the expenses on a bad intention in connection with the current conjugal relations.
For instance, during the term of divorce proceedings requested by the female party, the male party went shopping insanely, using up several thousand Yuan for the quality suit, the designer watch and so on as private goods; or he suddenly traveled abroad with his parents. Under such circumstance, during the divorce or in face of the impending divorce case, such irrational expenditure of one party as a revenge for the marriage breakdown cannot be requested to bear by both parties by the court.
Part V: How should both parties carry out the court debate?
There is a saying that “it is hard to make it clear except for debate”. Rights and wrongs of both parties not only need the support of evidence, but lucid language to clearly sum up viewpoints and to point out the other party’s wrong opinions based on reasons and evidence as well. This process is called the court debate. Generally, the court debate just follows the court investigation,
In divorce cases, both parties are concerned with three focuses: i.e.: evidence for the marriage breakdown (which party should bear the major faults); child custody and division of common property.
(1) Debate on whether the marriage has broken down and which party should bear the major responsibility.
In the court debate, the party involved should focus on the three above-mentioned disputes with lucid language and reasonable arguments in expressing his viewpoints.
As for arguments concerning marriage breakdown, the party involved should express his personal opinions from 5 aspects: i.e.: the matrimonial base, relations after marriage, reasons for marriage breakdown, the status quo of the conjugal relation and possibility of getting together. In other words, the plaintiff and the defendant should, from one’s own points of view, debate on the 5 aspects based on the facts of the case.
The debate on the matrimonial base covers the issues: Did both parties fall in love on their own will and how long and how well did they get along with each other before marriage, etc.
The debate on relations after marriage covers the issues: how was their family life and did they often quarrel or have a serious dispute in their daily life, etc.
The debate on reasons for marriage breakdown covers the issues: what are the reasons for disputes or hurt between both parties: the third party, different outlooks on life or emotionally disharmony.
The debate on the status quo of the conjugal relation covers the issues: how is their relationship and do they separate or live together as usual.
The debate on possibility of getting together covers the issues: can the disputes between both parties become reconciled through both parties’ efforts.
Last but not the least, which party should bear the major responsibility of marriage breakdown turns to be another focus for debate. Pursuant to Marriage Law and the concerning regulations, one of the basic principles of property division during divorce is to care for the party without any faults. Faults herein refer to acts of being unfaithful to marriage, family violence and abuses. As such, the party testifying to be unimpeachable may enjoy some advantages on property division and child custody.
(2) Debate on the child-care right.
The debate on the child-care right mainly focuses on which party is able to build a healthier environment for the children’s development. For instance,
First, age of children. Pursuant to 《Marriage Law》and the concerning regulations, children below 2 full years of life shall be brought up by the female party, especially to those in babyhood.
Second, gender of children. If the child is a girl nearly 10 full years of life, the female party is able to build a more favorable environment for the girl’s healthy development, as mother can give daughter more experience during puberty.
Third, economic conditions of both parties. If other conditions are similar, the court may give the child-care right to the party having higher earnings, as the party can provide the child with better living conditions.
Fourth, regular development environment. For instance, the facts that the child is always cared for by grandparents or the child always lives in a certain flat and goes to the school nearby shall be important factors for the judge to decide which party is better to have the child-care right.
(3) Debate on division of common property.
The basic principle concerning property division is to divide common property into equal parts. In fact, it is nowhere near simple. Many factors should be taken into account, such as sources of common property, more cares to the female party and the party testifying to be unimpeachable. Two key points concerning the property division should be solved in divorce disputes.
First, the amount of common property. In divorce cases, one of the biggest disputes is how much common property the plaintiff and defendant possess after all? For example, the plaintiff may suspect the defendant conceals part of common property or both parties may have disagreements on the attributes of premises and common liabilities, which are really complicated to define as common property.
Second, the principle of property division. How to divide common property may be another focus for debate if both parties have ascertained the amount of common property. To make an analogy, property division is just like cake-cutting. Both parties need to decide how to cut the cake if they have agreed to cut the 10-inch cake instead of the 12-inch one,
Generally, the court debate consists of two rounds: the first round may need more time, about 10 minutes and the second round may takes 5 minutes or so for both parties to further debate on the opinions presented in the first round. In fact, the second round is designed for both parties to express their personal opinions about their marriage and their conjugal relations, if necessary, revealing some of your true emotions may make the judge feel your true intentions rather than being informed of from the lawyer or agent.
Part VI Is the signature on court records important?
After the court trial, litigant participants (the plaintiff, the defendant, lawyers or agents of both parties, witnesses, etc.) shall sign on the notes of court trial, to show recognition of the notes made by the court clerk. If any objection occurs, the person involved can amend his or her statements in the notes and sign the name beside the amendment. The notes of court trial is very important legal documents, all the person involved shall sign their names on the notes after the court session, which is an indispensable procedure. The importance mainly reflects on the following aspects:
First, the notes of court trial are the most original and effective records of the persons’ opinions and languages.
In the whole process, the court clerk may take important notes about statements of the judge, both parties involved and litigant participants. After reading the notes, all the parties involved should sign to recognize its authenticity, which shall be regarded as the most original and effective records about the court trial and any party cannot regret any more.
Second, the notes of court trial are the most important legal grounds for judgment.
The statements in the notes of court trial shall be regarded as the true thoughts of the person involved. The judge shall judge the case in accordance with the notes of court trial unless new disproof is presented to reserve the contents in the notes. The persons involved should bear responsibility for what they have stated, once they sign their names on the notes, they cannot regret any longer.
Third, the items in the notes of court trial are of great importance.
The notes of court trial should cover the following 12 items:
① The judge’s checkup for the parties’ and the agents’ litigant qualification and for information about the serving and receiving of the court summons.
② The judge’s declaration about rights and obligations to the parties and the agents.
③ The parties’ statements concerning title, format and contents of each evidence or confrontation concerning the evidence.
④ The parties’ statements and pleading.
⑤ The parties’ applications and the judge’s adjudication and reasons concerned.
⑥ Witnesses’ and identifiers’ statements and questions & answers.
⑦ Arguments among the parties and the agents, including opinions from defense counsel.
⑧ The final statement of the parties.
⑨ The start and stop time of each trial and detailed information about litigant participants.
⑩ Q & A among the judge, the parties and the agents
○11 The background information about witnesses and identifiers
○12 Information about evidence: types, serial numbers, formats, submitting time and submitter, etc.
Part Ⅶ: Which parts of the court records should the parties pay attention when signing?
(1) When reading the notes of court trial, you’d better read word by word as carefully as possible.
At present, many courts are equipped with the computer to take notes of court trial with neat and clear characters, so it is quite easy to read, but some of the courts still use handwriting notes. No matter the notes are neat or not, it is essential to read the notes carefully, after all, the most excellent court clerk cannot ensure the notes’ accuracy by 100%.
(2) Don’t hold the idea that “The judge and the court clerk shall not make mistakes”.
To be honest, it is a good wish that the judge and the court clerk shall not make any mistakes. Even if the notes of court trial are too difficult to read, you shouldn’t give up your chance to proofread the notes written by the court clerk.
(3) Pay attention to the statements of your own when reading the notes.
The court clerk shall take notes of statements of both parties. The person involved has no right to ask the clerk to amend the opposite party’s statements and vice versa. No matter the statements are true or not, the notes of court trial are only a kind of evidence. The judge shall make judgment based on both parties’ statements and other evidence. Therefore, the person involved needs only to make sure the accuracy of statements of his or her own.
(4) Ask the court clerk to amend if there is any inconsistency between your statements and the notes of court trial.
Sometimes the court clerk may not write down the original meaning of the person involved for some reasons, therefore, if you find any inconsistency in the notes, you should ask the clerk to amend in time, regardless of inconvenience.
(5) Sign your name where the amendment has made for confirmation.
You should sign your name to confirm the amendments in the notes of court trial; otherwise, it is hard to confirm that the amendment is made out of the intention of the person involved or the clerk. So, don’t forget to sign after making any amendment.
(6) Sign on each page for confirmation.
In my opinion, it is not proper to only sign on the last page of the notes of court trial as requested by some judges or court clerks. Otherwise, if the person involved suspects any amendment on the other pages in the notes by the clerk, more inconvenience may be brought about.
(7) Copy the notes of court trial for the vital and complicated cases.
Pursuant to Article 50 of Civil Procedure Law of People’s Republic of China, the person involved has the right to refer to or copy the materials and legal documents concerning the vital and complicated cases, giving the person involved an objective and complete picture of the whole proceedings. |
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