Appeal against prosecution decision

Lead: Dismissing prosecution means that the people's court, after receiving the plaintiff's indictment, examines it according to law, finds that the plaintiff has no right to prosecute, and decides to dismiss the prosecution according to legal procedures. The following is an appeal sample I collected about the dismissal of the prosecution ruling. Welcome to read it.

Sample application for dismissing prosecution ruling (1) Appellant xx County Guancun Rural Credit Cooperative. Address: Renmin Middle Road, the county seat of xx County.

Legal representative Zhao xx, director.

Appellee Wang xx, male, 50 years old, Han nationality, lives in Shenhe Village, xx Town, Baofeng County.

Appellee Song xx, male, 40 years old, Han nationality, lives in Gu Duo Village, xx Town, Baofeng County.

Appeal request:

1. Revoke the civil ruling (2004)x Minchuzi No.216 according to law and send it back to xx County People's Court for retrial;

2. All litigation costs in this case shall be borne by the two appellants.

Facts and reasons:

The appellant refuses to accept the civil ruling of xx County People's Court (2004)x Min No.216, and now appeals. The specific facts and reasons of the appeal are as follows:

1. The court of first instance rejected the appellant's prosecution, which did not conform to the provisions of Article 108 of the Civil Procedure Law.

In this case, the appellee Wang xx borrowed money and Song xx provided guarantee. In addition to the signatures of Wang xx and Song xx, the borrower also stamped the official seal of the ceramic factory in xx Town, xx County. The court dismissed the prosecution on the grounds that Wang xx was listed as the defendant and obviously violated the law.

The appellant believes that there are some defects in the loan collection agreement supported by the loan receipt, loan contract and other materials provided by the credit union, which is not enough to affect the determination of the facts of the case; Moreover, the second defendant in this case was absent, did not give evidence, and gave up the right to state and defend. In the case that the defendant gives up the defense and proof, the court should make an unfavorable judgment against the defendant in accordance with the lawsuit of the credit union!

In addition, article 108 of the civil procedure law requires the conditions for prosecution. There is a clear defendant? In the absence of a qualified defendant, the appellee's list in the appellant's lawsuit is very clear. As for whether the defendant is qualified, it is a matter of entity review rather than procedural review. The result of the defendant's disqualification can only be to dismiss the lawsuit, not to dismiss it!

Two, the court of first instance to determine the amount of the case acceptance fee is wrong.

In his reply to the Higher People's Court of Henan Province, the Supreme People's Court clearly stipulated that if he refuses to accept the prosecution or rejects the case of objection to jurisdiction, the acceptance fee will be charged according to the non-property case. According to the regulations of Henan Higher People's Court, the acceptance fee for such cases is 50 yuan. The court of first instance found that the case acceptance fee of 826 yuan was borne by the appellant, which violated the above provisions!

To sum up, the court of first instance ruled that the dismissal of the appellant's prosecution did not comply with the law, and it was wrong to determine the litigation acceptance fee!

I am here to convey

Xxx intermediate people's court

Appellant XXX

Appellant (counterclaim plaintiff of first instance): Zhu Defu, living in Jubao Mountain Villa, Nanjing (omitted).

Appellee (counterclaim defendant of first instance): Shanghai Lujiazui Property Management Co., Ltd., domicile: No.583-585, Jin 'an East Road, Shanghai, postal code: 201204;

The appellant refused to accept the civil rulingNo. (2009) 1029 of Xuanwu District People's Court for the dispute over the property service contract with the appellee, and appealed to your hospital.

Appeal request:

1. Revoke the civil ruling of Xuan Min Yi Chu Zi (2009)No. 1029 according to law;

2. Ruling the Xuanwu District People's Court to continue hearing the appellant's first counterclaim according to law;

3. The appeal fee shall be borne by the appellee.

Facts and reasons:

First, the court of first instance found that the facts were unclear.

Needless to say, the parties involved in litigation are all to protect their legitimate rights and interests. However, the court of first instance misinterpreted the appellant's counterclaim, and did not investigate the' legitimacy and legality' of the legal relationship on which the appellant's counterclaim was based in combination with the actual situation of the case. It was only a literal guess, and it was hastily concluded that the appellant's first counterclaim was to protect the interests of all owners, so the appellant was not qualified to file the first counterclaim. In this case, the appellant's first counterclaim is aimed at what the appellee promised to do in the previous property service contract, but actually failed to do it or did not fully do it. It is precisely because of the appellee's repeated breach of contract during the performance of the previous property management contract that the appellant's legitimate rights and interests were damaged, and the appellant filed a counterclaim against him, demanding that he bear the corresponding liability for breach of contract. Its fundamental purpose is to protect their legitimate rights and interests. Just because the expression of the appellant's counterclaim is beneficial to other obligees, it cannot be concluded that the purpose of the appellant's counterclaim is not here. The court of first instance misinterpreted the purpose of the appellant's first counterclaim and found the facts unclear.

Second, there are many problems in the application of law by the court of first instance.

1. The civil litigation rights of both parties are not equally protected, which is unfair.

The dispute between the two parties in this case stems from the performance of the previous property management contract, and the legal relationship of the property service contract between the two parties is very clear. Based on the dual service and paid nature of the legal relationship of the property service contract, both parties in this case can claim rights from the other party for breach of contract. In this case, the appellant's counterclaim and the appellee's counterclaim are based on the same legal relationship of the property service contract, and are directly opposite to the appellee's counterclaim in both content and form. However, the court of first instance heard the appellee's counterclaim and rejected the appellant's important counterclaim, which greatly restricted the appellant's counterclaim rights and caused the inequality between the appellant and the appellee in civil litigation rights, which did not conform to the provisions of China's civil procedure law. Parties to civil litigation enjoy equal litigation rights. When trying civil cases, the people's courts shall guarantee and facilitate the parties to exercise their litigation rights and treat all parties equally in the application of laws? The provisions of the. Obviously, the court of first instance did not equally safeguard the civil litigation rights of both the appellant and the appellee, which was unfair.

2. Deprived the appellant of the right to claim breach of contract of the property company as the owner.

As mentioned above, the appellant's first counterclaim was based on the promise that the appellee should have made in the previous property management contract, in other words, it was based on the appellee's breach of the previous property management contract. According to Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Disputes (hereinafter referred to as the Interpretation)? If the realty service enterprise fails to perform or fails to fully perform the maintenance, conservation, management and repair obligations agreed in the realty service contract or determined by laws, regulations and relevant industry norms, and the owner requests the realty service enterprise to undertake the liabilities for breach of contract such as continuing to perform, taking remedial measures or compensating for losses, the people's court shall support it? In this case, the appellant, as the owner, is fully qualified to claim rights against the appellee's breach of contract. Regrettably, the court of first instance did not properly apply the law to fully protect the appellant's civil rights, but arbitrarily deprived the appellant of his right of claim against the appellee and rejected the appellant's legitimate counterclaim.

3. Improper application of legal procedures.

According to Article 3 of the Interpretation, the appellant, as the obligee, has the right to claim rights from the appellee. As a property management company, this right, as a substantive right of the appellant, should be fully protected by the court of first instance. Even if it is considered that the appellant's first counterclaim cannot be supported after the trial, it should be reflected in the form of a judgment and cannot be dealt with in the form of a procedural ruling. Moreover, judging from the basis for the court of first instance to apply the ruling, that is, the provisions of Article 140 of China's Civil Procedure Law, it is obviously inappropriate for the court of first instance to apply legal procedures to dismiss counterclaims.

To sum up, the appellant believes that the ruling of the court of first instance rejecting the appellant's first counterclaim has many mistakes in fact finding and law application, and the ruling is improper. Therefore, I hereby appeal to your court, urging your court to support the appellant's appeal request and safeguard the appellant's legitimate rights and interests.

I am here to convey

intermediate people's court

Appellant:

date month year