| On September 12,2016,the Supreme People's Court issued the “ Several Opinions on Further Promoting the Simplification and Diversion of Cases to Optimize the Allocation of Judicial Resources”(hereinafter referred to as“Several Opinions”),which was agreed in the contract before the dispute arising in judicial practice occurred.The practice of serving the address is affirmed,and the people's court may use the address as the confirmation address of the litigation document.The promulgation of "Several Opinions" symbolizes the recognition of judicial practice by the Supreme People's Court and has the purpose of promoting it throughout the country.However,"Several Opinions" only affirmed the practice in principle,lacking uniformity and standardization."Top-level design",the cases in the judicial practice are complicated,there are differences between the cases,the courts at different levels have different opinions,and the "Several Opinions" are judicial policy documents in nature,and the parties in the Civil Procedure Law have not agreed to send In the case where the legal effect of the address is clearly stipulated,the court shall serve in accordance with the judicial policy documents issued by the local court and produce the legal consequences of the presumption of delivery,which may inevitably be questioned by the person to be served(usually the defendant).In most cases,the party's appeal or retrial application considers the delivery procedure to be illegal.Therefore,this paper believes that the current research on the agreed delivery address system before the lawsuit has important practical significance for solving the problem of “difficulty in delivery”.This article is written in the way of asking questions,analyzing problems,and solving problems.In addition to the introduction and conclusion,the paper is divided into four parts,about 30,000 words.The first part is the nature and legal basis of the agreed address system before the appeal.This part mainly describes whether the operation in judicial practice has a legitimacy basis in the case that China's civil litigation legislation has not given the parties the legal effect of the agreed address.The first section is divided into two subsections.The nature of the agreed delivery address is considered to be different from the nature of the main contract clause.If the main contract is invalid,it will notaffect the legal effect of the agreement.After the dispute arises,the court can still serve the judicial documents according to the agreed address.Secondly,from the perspective of litigation behavior classification,we consider it to be a valid litigation behavior,and also belong to the litigation contract reached between the parties.The second subsection is based on the principles of honesty and credit,the principle of disciplinary action,the theory of due process,the value orientation of justice and efficiency,and argues that the pre-trial agreement address system has a legitimate legal basis.The second part is the investigation of the status quo of the agreed address system before the appeal.This part begins with the current court guidance documents,and summarizes the practical explorations of the current local courts and the Supreme Court.Secondly,it compares and analyzes the relevant judgment documents retrieved by the Chinese Judgment Document Network,and summarizes the differences of opinions and judgments of the parties in the judgment documents,and then draws the problems in judicial practice.The third part is the analysis of the problem of the agreed delivery address system before the appeal.This section is divided into two subsections.The first section analyzes the specific problems existing in the agreed address system before the appeal,and the second section analyzes the causes of the system problems.At present,the economy and society are developing rapidly,and the population is moving faster.In addition to the household registration address,there are many uncertain addresses such as frequent residence and temporary residence,that is,the separation of people and households is prominent.However,in the context of our country,delivery is a matter within the jurisdiction of the court,and there is an obligation to protect the person involved in the lawsuit,plus some unscrupulous parties maliciously evade delivery,and thereby delay the lawsuit and damage the other party.The lawful rights and interests of litigants.Although judicial practice has produced alternative measures including the delivery address confirmation system,it cannot be fundamentally solved the problem of “difficulty in delivery”.Therefore,according to the needs of judicial practice,the pre-suit agreement delivery address system is generated.The address confirmation system forms a complementary and inter-connected relationship,which makes up for the problem that the delivery address confirmation system cannot effectively solve the initial delivery.However,due to the late emergence of the system,only some local courts have relevant policy documents,and the Supreme People ' s Court in September 2016 in the "Several Opinions on Further Promoting Cases of Diversification and Optimization of Judicial Resource Allocation" The principled provision was made in this regard,and the definition of the system was vague,which made the system face many problems.The fourth part is the perfect proposal for the agreed address system before the appeal.On the basis of the above three parts of the research and analysis,the final goal should be based on the system construction.This part is based on the type of case applicable to the address system before the complaint,the specific content of the agreed delivery address clause,and the The specificity of the address confirmation system,the validity relationship between the announcement,and the remedy when the lawsuit is not received due to the reason of the person to be served,so as to achieve the standardization and operation of the pre-suit agreement delivery address system Sexuality achieves the goal of fundamentally solving the problem of “difficulty in delivery”. |
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