Insights

What is the use of jurisdictional objections in the Ningbo divorce case?

Ningbo Author：LuXu WANG

Some parties have heard that they can apply for jurisdiction objection in divorce cases, which can not only strive to respond to the lawsuit in their own convenient court, but also affect the pace of litigation to a certain extent. So, what is the role of jurisdictional objection in divorce cases? What legal risks should be paid attention to when applying?

1. legal basis

article 130 of the the People's Republic of China Civil Procedure Law: After the people's court accepts the case, if the parties have objections to the jurisdiction, they shall raise them during the submission of the defense. The people's court shall examine the objections raised by the parties. If the objection is established, the case shall be transferred to the people's court with jurisdiction; if the objection is not established, the case shall be rejected.

Article 131 of the the People's Republic of China Civil Procedure Law: If the parties do not raise an objection to jurisdiction and respond to the defense, the people's court shall be deemed to have jurisdiction, except for violations of the provisions on level jurisdiction and exclusive jurisdiction.

Article 35 of the Interpretation of the Supreme People's Court on the Application of the the People's Republic of China Civil Procedure Law: If the parties fail to respond to the defense after the expiration of the defense period, and the people's court finds that the case is not under the jurisdiction of this court before the first instance is opened, it shall rule Transfer to the people's court with jurisdiction.

2. core points

1. Legal function of jurisdictional objection

jurisdiction objection is a litigation right of the parties, whose function is to ensure that the case is tried by a court with jurisdiction and to safeguard the procedural rights of the parties. If the court that accepts the case has no jurisdiction, the parties may raise objections within the statutory time limit and request the court to review and transfer the case.

2. Common circumstances of jurisdictional objections in divorce cases

the defendant held that the accepting court had no jurisdiction

for example, the plaintiff did not sue in the court of the defendant's domicile or habitual residence, but in a court unrelated to the case, and the defendant may raise a jurisdictional objection.

Defendant's habitual residence is inconsistent with his domicile

if the plaintiff sues the court where the defendant's household registration is located, but the defendant has lived in the field for more than one year, the defendant may claim to be under the jurisdiction of the court of his habitual residence.

Jurisdictional Disputes in Special Situations

if the defendant's whereabouts are unknown, is imprisoned, does not live in China, etc., it may involve the jurisdiction of the court where the plaintiff is domiciled, and the two parties may dispute the jurisdiction court. According to the "Answers to Several Questions on the Trial of Marriage and Family Cases" (Gao Fa Min -1 [2016] No. 2) of the People's Court of Zhejiang Province, the divorce proceedings in which the defendant's whereabouts are unknown are not premised on the declaration of disappearance, and the court can promote the trial by announcement.

3. The impact of jurisdictional objections on the proceedings

after the objection to jurisdiction is raised, the court needs to review and make a ruling. If the parties are not satisfied with the decision, they may appeal within 10 days. This process will affect the progress of the case to a certain extent. However, it needs to be made clear that the legislative purpose of jurisdictional objection is to ensure correct jurisdiction, not simply to delay litigation.

4. Legal risks of abuse of jurisdiction objections

if the parties have no reasonable reason to repeatedly raise jurisdictional objections and appeals only for the purpose of delaying litigation, the court may find it an abuse of litigation rights. The court may, in accordance with the law, reject the objection and, if necessary, impose a disciplinary sanction or fine on the party concerned. In addition, the abuse of jurisdiction objection will increase its own litigation costs and time costs.

3. boundary conditions

  • objections to jurisdiction must be raised during the filing of the pleadings, and if they are filed late, the court generally does not review them.
  • Jurisdictional objections only address the jurisdiction of the accepting court and cannot express an opinion on the substance of the case.
  • After a party raises an objection to jurisdiction, the case proceedings are generally suspended pending a decision by the court.
  • If the objection is rejected, the party concerned shall decide whether to appeal within ten days; if the appeal is not made within the time limit, the original ruling shall take effect.

4. operational steps

1. Reasonable grounds for determining whether there is a jurisdictional objection

  • check whether the accepting court conforms to the principle of "plaintiff is defendant"
  • determine whether the defendant has a habitual residence and whether there are special jurisdictional circumstances.
  • Assess the likelihood of an objection being valid and avoid pointless objections

2. Objections within the statutory time limit

  • after receiving a copy of the indictment, a written application for objection to jurisdiction shall be submitted to the court within the 15-day defense period.
  • The application shall contain the reasons for the objection, the legal basis and the relevant evidence.
  • Retention of receipt or delivery voucher for submission of objection application

3. Prepare relevant evidence

  • evidence of the defendant's habitual residence: residence permit, lease contract, social security payment record, community certificate, etc.
  • Evidence to prove special circumstances such as the defendant's imprisonment, whereabouts unknown, and non-residence in China
  • other evidence demonstrating lack of jurisdiction of the receiving court

in a city with a large population flow such as Ningbo, whether the defendant has lived in Ningbo for one year is the key to determining the place of habitual residence. The completeness of the residence permit, social security payment record, rental contract and other materials directly affects the court's determination of the place of habitual residence.

4. Choice after the objection is rejected

  • if it is considered that the rejection decision is wrong, an appeal may be filed with the higher court within 10 days from the date of receipt of the ruling.
  • If the reasons for the objection are not sufficient, the court decision should be respected and the defense and evidence of the substantive issues of the case should be actively prepared.

5. common mistakes

myth 1: "Jurisdictional objections are used to delay divorce"

error. Jurisdiction objection is the legal litigation right of the parties, and its purpose is to ensure that the case is tried by a court with jurisdiction. If the right is abused simply for the sake of delay, it may be rejected by the court and bear adverse consequences.

Myth 2: "If an objection to jurisdiction is raised, the case will definitely be transferred"

error. The court will examine whether the objection is established according to law. If the receiving court does have jurisdiction, the objection will be rejected. Even on appeal, the court of second instance may uphold the original decision.

Myth 3: "Jurisdictional objections can be raised indefinitely"

error. An objection to jurisdiction shall be raised once during the period of defense, and an appeal against the decision may be made once. After the case is transferred, it is generally not possible to raise objections on the same grounds again.

Practical Experience of 6. Lawyers

jurisdiction objection In divorce cases, the most direct role is to correct "which court should be in charge of the case". If you believe that the court accepting the case has no jurisdiction, you can raise an objection within the period of filing the reply. If the objection is established, the case will be transferred to the court with jurisdiction. For some people, this can avoid long-distance travel and strive to respond to the lawsuit in a court of their own convenience; but don't think of it as a tool that can be wielded at will-an objection must have a factual and legal basis, and it is purely for the sake of delaying time. Repeated without reason may be rejected, and the corresponding consequences will be borne.

A common misconception in practice is to treat jurisdictional objections as a drag-on tactic. It is true that the pace of the trial will be affected after the objection is raised, but it will not last for a while. Abuse may also discount the judge's impression of your integrity and do more harm than good. What really needs to be challenged is usually when there is a real dispute over jurisdiction, or when responding to a lawsuit in a different place will bring you substantial difficulties. The criterion of judgment is "whether there is a legitimate reason", not "whether it can be delayed for a few more days". If you think about this point clearly, you will not be biased by other people's statements.

If you really want to mention it, put the foothold on the evidence: proof of residence and habitual residence, such as residence permit, social security payment, rental contract, property or community certificate, is the key to support the objection. Calculate the time before mentioning it-it is often too late to mention it after the defense period. At the same time, there should also be alternatives: after the objection is rejected, the case will return to the normal track, and the evidence you should prepare and the mediation you should talk about cannot be stopped. Dissent as part of the strategy rather than the whole, so as not to upset the overall situation because of a small procedural problem.