Insights

Ningbo first sued the judge to persuade the withdrawal of the case how to do.

Ningbo Author：LuXu WANG

When a party filed a divorce lawsuit for the first time, the other party firmly disagreed with the divorce. The judge advised her to withdraw the lawsuit in court, saying, "You still have the possibility of mediation and reconciliation. You can sue again six months after the withdrawal". She was stunned for a moment and muddleheaded to sign the withdrawal record. Later, she learned that it would take six months for the second prosecution after the withdrawal of the lawsuit. If the judgment such as withdrawal is not made, even if the judgment is not made, the court should be sentenced to leave after one year of separation. In the face of the judge's "good faith" to dissuade, how should the parties respond?

1. legal basis

article 148 of the the People's Republic of China Civil Procedure Law: Before the judgment is pronounced, if the plaintiff applies for withdrawal of the lawsuit, the people's court shall decide whether to allow it. If the people's court decides not to permit the withdrawal of the lawsuit, the plaintiff may make a judgment by default if he refuses to appear in court without justifiable reasons after being summoned by a summons.

Item 7 of Article 127 of the the People's Republic of China Civil Procedure Law: Divorce cases where divorce is not allowed and mediation is good, cases where adoption is maintained by judgment or mediation, and there are no new circumstances or new reasons, and the plaintiff brings another lawsuit within six months shall not be accepted.

Article 1079 of the the People's Republic of China Civil Code: After the people's court has ruled that divorce is not allowed, the two parties have been separated for one year, and one party files a divorce lawsuit again, the divorce shall be granted.

2. core points

1. Legal consequences of withdrawal: recalculation of the prosecution cycle and loss of the opportunity to apply the statutory leave clause.

The withdrawal of the lawsuit means the end of the proceedings, and the plaintiff shall not sue again within six months without new circumstances and new reasons. More importantly, the withdrawal of the lawsuit does not mean that "divorce is not allowed by the judgment". Therefore, Article 1079 of the Civil Code cannot be applied, which stipulates that "after the judgment of divorce is not allowed to be separated for one year, the lawsuit shall be sentenced to divorce. If the lawsuit is not withdrawn, even if the court decides for the first time that the divorce is not allowed, as long as the two parties have been separated for one year after that, the court must decide to leave when suing again. On the contrary, the withdrawal of the lawsuit makes the parties lose this important legal guarantee.

2. The deep reasons why the judge advised to withdraw the lawsuit.

The judge's advice to withdraw the case is usually not out of consideration of the interests of the parties, but out of consideration of the "trial standard": the withdrawal of the case can be closed, reducing the judge's pressure to close the case and the burden of the trial. However, for the parties concerned, the prosecution is often well thought out, and the reason that "there is a possibility of reconciliation" is often untenable in practice.

3. The only "benefit" of withdrawal: counts as a single prosecution.

Although there are many disadvantages to withdrawing the lawsuit, objectively withdrawing the lawsuit does count as a divorce lawsuit. In the second prosecution, the judge usually takes into account that the plaintiff has already sued twice and that the probability of dismissal is relatively high. However, this "benefit" can be obtained by not withdrawing the case, etc., and the non-withdrawal of the case can also retain the opportunity to apply the "separation should be adjudicated after one year of separation" clause.

3. boundary conditions

  • if the plaintiff does have new circumstances and new reasons (such as the other party's domestic violence, transfer of property, etc.), he can sue again within six months after the withdrawal of the lawsuit, without the six-month limit.
  • If the defendant sues for divorce within six months of the plaintiff's withdrawal, the above six-month limit is not applied.
  • If the plaintiff repents after withdrawing the lawsuit, the application for withdrawal may be withdrawn before the court makes a decision to grant the withdrawal.
  • If the court has made a decision to allow the withdrawal of the lawsuit, the plaintiff can only wait six months before suing (unless there are new circumstances and new reasons)

4. operational steps

1. Response to the judge's persuasion to withdraw the case:

  • remain calm, do not make a decision to withdraw the case in court, you can say "need to consult with a lawyer before deciding"
  • if a lawyer has been appointed, the lawyer shall communicate with the judge to clarify the position and reasons of the party's insistence on the lawsuit.
  • Explicitly inform the judge that if the court considers that the relationship has not yet broken down, it may rule against divorce, but the parties wish to obtain the verdict rather than withdraw the lawsuit.

2. The strategy of not withdrawing the lawsuit:

  • sufficient evidence in the trial to prove emotional breakdown, such as separation evidence, records of domestic violence, infidelity evidence, records of repeated communication without results, etc.
  • If the court decides against divorce, move out of separation immediately after receiving the decision and start counting the time of separation
  • keep the evidence of separation and sue again after one year of separation, at which time the court shall grant the divorce.

3. Remedies if withdrawn:

  • if the lawsuit is withdrawn for less than six months and there are new circumstances and new reasons (such as domestic violence and transfer of property), you can sue again immediately.
  • If the case has been withdrawn for six months, try to provide more evidence of emotional breakdown when prosecuting again, and strive for a second sentence.
  • After a second prosecution, if he still does not get a divorce, he will immediately separate. After a third prosecution after one year, the court shall order a divorce.

5. common mistakes

myth 1: "The judge advised to withdraw the lawsuit for my own good. It is always right to listen to the judge"

error. Judges often advise to withdraw the case out of consideration of the closing rate, rather than maximizing the interests of the parties. Withdrawal will result in the loss of the opportunity to apply the statutory leave clause and extend the divorce cycle.

Myth 2: "You can sue again at any time after you withdraw the lawsuit"

error. If there is no new situation or new reason after the withdrawal of the lawsuit, it will take six months before the lawsuit can be prosecuted again. Moreover, the withdrawal of the lawsuit cannot be applied to the clause that "a divorce shall be granted at the end of one year of separation after the divorce is not allowed.

Myth 3: "If the case is not withdrawn, the second prosecution is even more difficult"

error. After the judgment is not withdrawn, if the judgment forbids divorce, as long as the separation has been completed for one year, the court shall rule out divorce. This is a more reliable legal path than prosecuting within six months of withdrawal.

Practical Experience of 6. Lawyers

for the first time, the other party is determined not to leave. It is very common for the judge to withdraw the case during the trial, but withdrawing the case is usually not your best choice. The reason lies in the different legal consequences: withdrawal means the end of the procedure, after a period of time there is no new situation, new reasons can not be prosecuted again. If we insist on letting the court issue a judgment, even if we don't leave this time, as long as we are separated and fixed, the weight of the next prosecution will be very different.

So whether to withdraw or not, first think clearly what you really want. If the relationship does break down and you have considered it carefully, then don't be pushed away by the sentence that there is still a possibility of making up. You can insist on the lawsuit and request a judgment in court or in writing. The judge may still not allow divorce, but this paper judgment itself is the step for your next round of prosecution. On the other hand, if you still have room for marriage, or need time to arrange children and property, it is not absolutely impossible to consider withdrawing the lawsuit, but you should think about the time limit after withdrawing the lawsuit and the time to re-sue, and don't drag yourself into passivity because of temporary softness.

The action that goes with it is just as important. What needs to be done is to turn separation into a fact that can be proved: the address of separate residence, the starting point of time, the payment of water and electricity property, the lease contract, and the communication record between the two parties on separation, the sooner the better. Be careful not to live together frequently and travel together for the holidays in order to try, which will interrupt the continuity of separation. Don't think that not judging for the first time means that there is no chance. From the experience of handling cases, it is very common to judge for the first time, to make solid separation facts and evidence, and to judge for separation after prosecution. The real losers are often those who muddleheaded on the spot and signed the withdrawal record without leaving any traces of separation.