[Key words] civil divorce dispute mediation agreement retrial rescission divorce retrial
[introduction to the lawyer in this case] Meng Qingkai is a partner of Liaoning Tongfang law firm. His business scope mainly includes large-scale civil and commercial litigation and criminal defense business. Civil and commercial litigation is mainly concentrated in the field of construction projects, representing many cases of this type and accumulating more practical experience. The criminal defense business has more experience in handling job-related crimes.
[judgment points] there is no mistake in the property division opinions reached by both parties during the mediation, which is not the content of the retrial dispute, and the property rights of both parties have been in a clear, stable and orderly state after the performance of the money payment obligation. The property relationship that has been clearly defined cannot be re divided because of the error in the procedure of the first instance court in the trial of this case.
[basic case] Mr. Zheng and Mr. Ren (the client) registered their marriage on September 11, 1989. After marriage, they had a daughter. Later, the two parties had conflicts due to household chores, resulting in the breakdown of the couple's relationship. Mr. Zheng filed a lawsuit for divorce on December 24, 2007. The court of first instance heard the case on February 2, 2008. During the trial, both Mr. Zheng and Mr. Ren agreed to divorce.
The common property of both parties mainly includes two sets of relocated houses, compensation for demolition, compensation for land lost farmers, etc.
Under the auspices of the court, both parties reached a mediation: the minor children should be brought up by Ren; Two houses belong to Ren; Zheng gave his daughter 250000 yuan; Zheng gave Ren 40000 yuan. On the day after the mediation was reached, the court served the divorce No. 209 civil mediation statement to both parties, and both parties completed the performance of the property distribution issues.
On September 7, 2009, Ren remarried with Yang, an outsider.
In the second half of 2011, Zheng applied to the court that made the mediation statement for retrial on the ground that the civil mediation statement did not confirm the divorce of both parties. After examination, the court considered that there were indeed problems in the mediation statement and did not confirm the divorce of both parties. On November 14, 2011, he made a civil ruling No. 27 and decided to retrial the case.
When the court of first instance tried the case again, Ren concealed the fact of his remarriage because he was worried about bigamy. On May 2, 2012, the court of first instance made a civil judgment No. 24, which revoked the civil mediation statement No. 209; It was decided that the divorce dispute between Zheng and Ren should be tried again according to the first instance procedure.
After the retrial in accordance with the first instance procedure, Zheng and Ren had no objection to the divorce, but Zheng no longer recognized the agreement on property division in the mediation statement of that year and requested to re divide the common property. However, Ren claimed that it had been four years since Juli last mediated the divorce, the mediation agreement on property division had been fulfilled, the daughter had married, and he had remarried. Therefore, he firmly disagreed with the re division of property. After discussion by the trial committee, the court of first instance made a judgment No. 1043, in which the parties were divorced and the property was redistributed. Although this division method basically respects the distribution method of the original mediation agreement, it requires Ren to give Zheng about 50000 yuan. Ren firmly disagrees and then appeals. And Zheng also appealed for the allocation of one of the properties.
In 2013, the court of second instance considered that there were many problems in the trial of first instance, such as procedural violations, and ruled to cancel the original judgment and remand it for retrial.
After the case was sent back for retrial, due to many procedural difficulties involved in the case, the case was once deadlocked. Until November 9, 2016, the court of first instance again made No. 30 judgment of first instance, which ruled that Zheng and Ren were divorced on February 2, 2008; The joint property of the husband and wife was redistributed. When distributing the property, one of the two houses originally allocated to Ren was allocated to Zheng. Zheng needed to pay Ren about 150000 yuan. Ren firmly cannot accept the judgment. At this time, the house price is very different from that of 8 years ago, and the obligation to support her daughter has been fulfilled. In this case, it is obviously unfair for Ren to redistribute the property in this way. So Ren again appealed in advance.
In August 2017, the court of second instance finally made a final judgment, which revoked the judgment of first instance and confirmed that Zheng and Ren divorced on February 2, 2008, and the property was still distributed according to the distribution scheme determined in the civil mediation statement on February 2, 2008. So far, a divorce lawsuit that lasted nearly 10 years has finally ended.
In addition, after the final judgment was made, Zheng still refused to accept the application for retrial to the court of second instance, which was rejected by the court.
[judgment result] supported Ren's appeal, ordered Zheng and Ren to divorce on February 2, 2008, and ordered both parties to divide the property according to the property distribution method determined in the No. 209 mediation statement made on February 2, 2008.
[reasons for adjudication] 1. One of the important functions of the people's court in adjudicating cases is to settle disputes and settle disputes, and to confirm the civil rights and obligations between the parties to the litigation.
2. With regard to the division of the property of both parties in this case, the opinions on the division of property reached by both parties during the mediation are the true intention of both parties, and there are no mistakes. They are not the content of the dispute in the retrial. Moreover, after the receipt of the mediation statement, the obligation of money payment has been fulfilled, and the property rights of both parties have been in a clear, stable and orderly state, Re divide the property relationship that has been clearly defined.
[relevant laws] Article 8 of the interpretation of the Supreme People's Court on Several Issues concerning the application of the marriage law of the people's Republic of China (II) stipulates that the provisions on property division in the divorce agreement or the agreement reached by the parties on property division due to divorce shall have legal effect on both men and women.
Article 202 of the Civil Procedure Law of the people's Republic of China: a party may not apply for retrial of a legally effective judgment or mediation statement on dissolution of marriage.
Article 2 of the Civil Procedure Law of the people's Republic of China: the task of the Civil Procedure Law of the people's Republic of China is to protect the criminal procedural rights of the parties, ensure that the people's courts find out the facts, distinguish right from wrong, correctly apply the law, promptly hear civil cases, confirm the relationship between civil rights and obligations, sanction civil violations, and protect the legitimate rights and interests of the parties. In view of the fact that citizens consciously abide by the law and maintain social and economic order, To ensure the smooth progress of socialist construction.
[lawyer's opinion] 1. Unlike ordinary divorce cases, the dissolution of the divorce relationship in this case is accompanied by the divorce time. That is, the people's court made a divorce judgment in 2017 that the marriage relationship was dissolved on February 2, 2008, which is the most novel and original point of this case. The reason why the people's court should indicate the time when confirming the divorce is to solve the contradiction caused by the remarriage of the parties in 2009. Avoid the embarrassing situation of bigamy caused by court negligence.
2. This case could have been avoided, which was due to the negligence of the court of first instance, resulting in the parties taking nearly 10 years to complete the divorce. Therefore, the follow-up trial of the people's court is essentially to remedy the original omissions of the people's court or its subordinate units. In the process of remedy, we should not only consider the smoothness of the legal logic, but also consider whether the redistribution will have a serious impact on the interests of the parties after a period of time. Neither party should gain benefits or suffer losses due to the fault of the court. Therefore, the only fair and reasonable solution is to maintain the distribution of property in the original mediation statement.