Model of civil appeal for jurisdictional objection (1) Appellant (plaintiff in the original trial): XXX, male, Han nationality, XX years old, Yiqi man, driver, now living in Yiqi XXXXX, ID number: XXXXXXXXXX.
Appellee (defendant of first instance): XXXXXXXXX.
Organization code: XXXXXX.
Legal Representative: XXXXX
General manager: XXXXXX, telephone: XXXXXX.
Current residence: XXXXXX, Dongsheng District, Ordos City.
The appellee appealed against the plaintiff XXX's objection to the defendant XXXX's cancellation of the contract dispute, and the appellant refused to accept the civil ruling (XXXX)No. (2004) of Dongsheng District People's Court of Erdos City, Inner Mongolia, Dong Famin Zi Chu.
Appeal request:
Request to cancel (XXXX) the civil ruling of Dong Famin Chuzhinuo. The People's Court of Dongsheng District, Ordos City, Inner Mongolia XXXX, and transferred the case to the People's Court of Dongsheng District, Ordos City, Inner Mongolia for trial.
Facts and reasons:
The appellee XXXX raised a jurisdictional objection to the People's Court of Dongsheng District, Ordos City, Inner Mongolia on the case of XXX v. XXXX dissolving the contract dispute, and thought that the case should be transferred to the People's Court of Zhungeer Banner, Ordos City for jurisdiction. On September 20th, 2009, Dongsheng District People's Court made a civil ruling of (XXXX) Dong Famin Chu Zi No. Ruled that the appellee XXXX's objection to this case was established, and transferred the case to Zhungeer Banner People's Court for jurisdiction. The appellant thinks that the ruling of Dongsheng District People's Court has no legal basis and is a wrong ruling. This case is under the jurisdiction of Dongsheng District People's Court according to law. The reason for this is the following：
1. This ruling violates the most basic principle in the civil procedure law, and the appellee should bear the adverse consequences caused by not giving evidence.
Article 64 of the Civil Procedure Law stipulates that the parties have the responsibility to provide evidence for their claims. According to the second paragraph of Article 2 of the Provisions of the Supreme People's Court on Evidence in Civil Proceedings, there is no evidence or
If the evidence is insufficient to prove the facts identified by the parties, the party with the burden of proof shall bear the adverse consequences. In this ruling, the appellee challenged the jurisdiction. According to the reasons given in the ruling, the appellee is:? Although there is something in the contracted vehicle operation contract signed by the original defendant? If there is any contract dispute, please submit it to Dongsheng District People's Court? But the contract is invalid. Because, according to Article 25 of the Contract Law, the parties to a contract may agree in a written contract to choose the jurisdiction of the people's court where the defendant's domicile, the place where the contract is performed, the place where the contract is signed, the plaintiff's domicile and the place where the subject matter is located, but they shall not violate the provisions of this Law on hierarchical jurisdiction and exclusive jurisdiction. ? Therefore, the jurisdiction court stipulated in the contract must be one of the people's courts where the defendant has his domicile, the contract is performed, the contract is signed, the plaintiff has his domicile and the subject matter is located, and the Dongsheng District People's Court does not belong to these five. ? However, the appellee did not provide any evidence to prove that the Dongsheng District People's Court did not belong to any of these five places. Therefore, there should be an application for the appellee to bear the adverse consequences, that is, the application for objection to jurisdiction was rejected.
The court ruled in the ruling that after the defendant filed an application for jurisdiction objection, the court reversed the burden of proof and asked the plaintiff to bear it, and the defendant did not bear any burden of proof. The court asked the plaintiff to prove that the defendant's objection to jurisdiction was not established. If the plaintiff cannot prove that the defendant's application for objection to jurisdiction is not established, then the appellee's application for objection to jurisdiction is established. This is like A suing B, and the request is to ask B to return the 6,543,800 yuan it owes A. As a result, the court's thinking is like this, asking B to prove that it does not owe A 6,543,800 yuan, and A does not need to provide any evidence. If B can't prove that he doesn't owe A654.38+00,000 yuan, then the court will consider it absurd for B to return A654.38+00,000 yuan. In fact, if A can't provide evidence, then the court will reject his claim. And in the case that A can't provide evidence, B can even say nothing without risking losing the case. Similarly, in the case that the appellee cannot provide evidence to support his claim, the appellant should not bear the adverse consequences at all, let alone bear the adverse consequences because of his rebuttal. Therefore, Dongsheng District People's Court supports the plaintiff's application for jurisdiction objection.
Two. The jurisdiction of the agreement is valid, and the Dongsheng District Court enjoys jurisdiction (rebuttal).
It is wrong to mention in the ruling that the place where the contract was signed, the place where the contract was performed and the defendant's domicile were all in Dongsheng District, and only Li Yongping's testimony was used as evidence, and no other relevant evidence was used to support it. There is an advertisement of Meng Kai Company, a recording material and some photos. The advertising address reads: Development Road, Tongchuan Town, Dongsheng District, Ordos City.
1 (9 km from fubao road). There are several photos, some of which clearly show that the general manager of the company is Bai. These photos are posted on the wall of Meng Kai Company's office at Development Road 1, Tongchuan Town, Dongsheng District, and are the organization chart of Meng Kai Company. The driver who handles all kinds of affairs is Bai himself, who can prove that this location is actually the location of the company's office. If not, what is this office, what are the photos posted on the wall for nothing, or is it a fraud place that can be changed at once? Because there are recorded materials that can prove that the signing place of the contract is onlyNo. 1, Development Road, Tongchuan Town, Dongsheng District, and the Dongsheng District Court did not analyze and demonstrate the above evidence, even did not mention the existence of the above evidence, but only mentioned Li Yongping's testimony, which obviously omitted the evidence and did not correctly reflect the truth. In fact, the facts are very clear. The contract signed by Meng Kai Company and the driver is a standard contract, that is, a contract unilaterally made by Meng Kai Company in advance for reuse. It can be said that every clause in the contract was written by Meng Kai Company after careful consideration, and the whole contract was drafted very professionally. As the drafter and the leading party, will the court in the place unrelated to the contract be the competent court? On the contrary, Meng Kai Company should have foreseen that the jurisdiction court of this contract agreed to win in Dongsheng, which is more beneficial to the smooth settlement of disputes or the company itself. We should also know that the agreement is in compliance with the law, and at least know that the place and office of signing the contract is Tongchuan Town. If the appellant objects to the jurisdiction, please forgive me, because after all, he has not drafted the contract and he lacks relevant experience. However, as a professional team, it is really irritating that a big company should go back on its word. In fact, the reason why Meng Kai Company refused to recognize its written court jurisdiction was nothing more than to delay the lawsuit and create obstacles for the normal proceeding of the lawsuit. After all, the company has strong strength and strong economic strength. Drivers can't afford it. After a while, the driver's confidence in winning the lawsuit collapsed and was destroyed. In fact, Meng Kai Company's objection to jurisdiction achieved its purpose to a certain extent, because the objection to jurisdiction was delayed for two months, and in spite of the appellant, it made a ruling without legal basis, which led to the plaintiff's withdrawal. In fact, for the appellant, if the five locations of the real contract were not docked with the Dongsheng District Court, the appellant would not have reacted so strongly, but the actual signing place was Tongchuan Town, and it was really difficult for the appellant to swallow this tone.
Accordingly, the agreement between XXXX and Zhungeerqi Meng Kai Automobile Transportation Co., Ltd. is valid.
Three, even in accordance with the principle that the plaintiff is the defendant, the people's court of Zhungeer Banner in Ordos City has no jurisdiction over this case.
(rebuttal)
According to the second paragraph of Article 22 of the Civil Procedure Law, a civil lawsuit brought against a legal person or other organization shall be under the jurisdiction of the people's court where the defendant is domiciled. Article 4 of the Opinions on Civil Procedure stipulates the following criteria for determining the defendant's domicile: A legal person refers to the place of its main business or the place of its main office, not the place of registration. Article 17 of the Civil Opinion stipulates that only partnership enterprises and partnership joint ventures without offices shall be under the jurisdiction of the court of the place of registration. A recorded evidence, an advertisement of Meng Kai Company and some photos we provided can prove that Meng Kai Company has an office in Dongsheng District. Therefore, according to the principle that the plaintiff is the defendant, the Dongsheng District People's Court enjoys jurisdiction according to law. Moreover, the subject of this case is an independent enterprise legal person, not a partnership or a joint venture, so even if it is determined that it is under the jurisdiction of the court where it is registered, the subject is not qualified, so even if the plaintiff is the defendant, the Zhungeer Banner People's Court has no jurisdiction. The Dongsheng District People's Court did not make any analysis and demonstration on the above three pieces of evidence provided by the appellant, and stated in the ruling that? The plaintiff only provided one testimony of witness Li Yongping to prove it? This statement is wrong.
This ruling finds that the jurisdiction objection of Zhungeer Banner Meng Kai Automobile Transportation Co., Ltd. is established, and there is also no argument. It didn't even mention what evidence was used to determine the jurisdictional objection, but it was stated in the reasons put forward by the appellee. The defendant's domicile is under the jurisdiction of Zhungeer Banner People's Court? In this ruling, it is not clear what evidence the defendant provided to prove that the defendant's domicile is in Zhungeer Banner, but this is not only lack of legal basis, but also without any basis, which is really difficult to convince the appellant. What's more, the existence of effective agreement jurisdiction simply excludes the application of this article.
To sum up, the appellant thinks that the ruling made by the court of first instance lacks legal basis, so it must be a wrong ruling. Therefore, the appellant appealed to your hospital in accordance with the law, hoping that the ruling would be as he wished.
I am here to convey
* * Intermediate People's Court
Appellant:
Date, year and month
Model civil appeal against objection to jurisdiction (II) Appellant (defendant in the original trial): * * * * Co., Ltd.
Legal Representative: * * Chairman.
Appellee (plaintiff in the original trial): * * *
The appellant refuses to accept the civil ruling of * * People's Court (20**)* MinsanchuziNo.. **2 filed a jurisdictional objection due to the dispute of * *, and now appeals.
Appeal request:
1. Request to cancel the civil ruling of @ @ @ District People's Court (2009) Xinmin YichuziNo.. * * * * and transfer the case to the People's Court of * * * District for trial;
2. The appeal fee of this case shall be borne by the appellee.
Facts and reasons:
On February 6, 2009, the appellant * * * * Co., Ltd. and * * * * Co., Ltd. had a labor dispute.
The people's court raised a jurisdictional objection and held that the case should be transferred to the people's court of * * * * District where * * * Co., Ltd. is domiciled (also the place where the labor contract is performed). In 2009, Xinpu People's Court made a civil ruling (2009) Minyichuzi No.1. * * The ruling rejected the appellant's objection to jurisdiction and was delivered to the appellant on * * 2009. The appellant thinks that the ruling of the People's Court of * * * District has no legal basis and is a wrong ruling. Transfer the case to the people's court of * * * District according to law. The reason for this is the following：
First, the original ruling has no legal basis and should be revoked.
The ruling of the original trial held that after the labor dispute arbitration commission made an award, if a party refuses to accept the lawsuit, it should generally be under the jurisdiction of the people's court where the labor dispute arbitration commission is located. The case was decided by Lianyungang Labor Dispute Arbitration Commission and should be tried by @ @ @ District Court.
The appellant thinks that there is no legal provision to support the reasons of the court of first instance @ @ @ District Court. Moreover, the court of first instance did not give clear legal provisions, but it was just a vague statement. Therefore, the ruling has no legal basis and should be revoked.
2. The People's Court of * * * District has no jurisdiction over this case.
According to the second paragraph of Article 22 of the Civil Procedure Law of People's Republic of China (PRC), a civil lawsuit brought against a legal person or other organization shall be under the jurisdiction of the people's court where the defendant is domiciled. Article 24 stipulates that a lawsuit arising from a contract dispute shall be under the jurisdiction of the people's court of the defendant's domicile or the place where the contract is performed. This case is a dispute over the performance of the labor contract, and it should also be under the jurisdiction of the court where the appellant lives or where the labor contract is performed. Therefore, this case should be under the jurisdiction of the people's court of * * * District, Lianyungang City, where the labor contract is also performed. @ @ @ District Court is the domicile of the appellee and should not have jurisdiction according to law.
3. Transfer to a court with jurisdiction for trial according to law.
According to the provisions of Article 36 of the Civil Procedure Law of People's Republic of China (PRC), if a people's court finds that the case it accepts is not under its jurisdiction, it shall transfer it to the people's court with jurisdiction, and the transferred people's court shall accept it. Therefore, the court of first instance @ @ District Court transferred the case to the people's court of * * * District with jurisdiction for trial. Instead of rejecting the appellant's objection to jurisdiction.
Please.
To sum up, the appellant thinks that the ruling made by the court of first instance has no legal basis and must be a wrong ruling. Therefore, the appellant appealed to your hospital in accordance with the law, hoping that the ruling would be as he wished.
I am here to convey
* * * City Intermediate People's Court
Appellant: * * * Limited.