第二编 审判程序 第十二章 第一审普通程序 第一节 起诉和受理

PART TWO TRIAL PROCEDURE　Chapter XII Ordinary Procedure of First Instance　Section 1 Bringing a Lawsuit¹ and Entertaining a Case

 

第一百零八条 起诉必须符合下列条件：

Article 108 The following conditions must be met when a lawsuit is brought: 

 

（一）原告是与本案有直接利害关系的公民、法人和其他组织；

"(1) the plaintiff must be a citizen, legal person or any other organization that has a direct interest in the case; "

 

（二）有明确的被告；

(2) there must be a definite defendant; 

 

（三）有具体的诉讼请求和事实、理由；

"(3) there must be specific claim or claims, facts, and cause or causes for the suit;"

 

（四）属于人民法院受理民事诉讼的范围和受诉人民法院管辖。

and (4) the suit must be within the scope of acceptance for civil actions by the people's court and under the jurisdiction² of the people's court where the suit is entertained.

 

第一百零九条 起诉应当向人民法院递交起诉状，并按照被告人数提出副本。

"Article 109 When a lawsuit is brought, a statement of complaint shall be submitted to the people's court, and copies of the statement shall be provided according to the number of defendants³."

 

书写起诉状确有困难的，可以口头起诉，由人民法院记入笔录，并告知对方当事人。

"If the plaintiff has genuine difficulty in presenting the statement of complaint in writing, he may state his complaint orally; the people's court shall transcribe⁴ the complaint and inform the other party of it accordingly."

 

第一百一十条 起诉状应当记明下列事项：

Article 110 A statement of complaint shall clearly set forth⁵ the following: 

 

（一）当事人的姓名、性别、年龄、民族、职业、工作单位和住所，法人或者其他组织的名称、住所和法定代表人或者主要负责人的姓名、职务；

"(1) the name, sex, age, ethnic⁶ status, occupation, work unit and home address of the parties to the case; if the parties are legal persons or any other organizations, their names, addresses and the names and posts of the legal representatives or the principal heads."

 

（二）诉讼请求和所根据的事实与理由；

"(2) the claim or claims of the suit, the facts and grounds on which the suit is based; "

 

（三）证据和证据来源，证人姓名和住所。

"and (3) the evidence and its source, as well as the names and home addresses of the witnesses."

 

第一百一十一条 人民法院对符合本法第一百零八条的起诉，必须受理；对下列起诉，分别情形，予以处理：

"Article 111 The people's court must entertain the lawsuits⁷ filed in conformity⁸ with the provisions of Article 108 of this Law. With respect to lawsuits described below, the people's court shall deal with them in the light of their specific circumstances: "

 

（一）依照行政诉讼法的规定，属于行政诉讼受案范围的，告知原告提起行政诉讼；

"(1) for a lawsuit within the scope of administrative⁹ actions in accordance with the provisions of the Administrative Procedure Law, the people's court shall advise the plaintiff to institute administrative proceedings¹⁰; "

 

（二）依照法律规定，双方当事人对合同纠纷自愿达成书面仲裁协议向仲裁机构申请仲裁、不得向人民法院起诉的，告知原告向仲裁机构申请仲裁；

"(2) if, according to the law, both parties have on a voluntary basis reached a written agreement to submit their contract dispute to an arbitral organ for arbitration¹¹, they may not institute legal proceedings in a people's court. The people's court shall advise the plaintiff to apply to the arbitral organ for arbitration; "

 

（三）依照法律规定，应当由其他机关处理的争议，告知原告向有关机关申请解决；

"(3) in case of disputes which, according to the law, shall be dealt with by other organs, the people's court shall advise the plaintiff to apply to the relevant organ for settlement;"

 

（四）对不属于本院管辖的案件，告知原告向有管辖权的人民法院起诉；

" (4) with respect to cases that are not under its jurisdiction, the people's court shall advise the plaintiff to bring a lawsuit in the competent people's court; "

 

（五）对判决、裁定已经发生法律效力的案件，当事人又起诉的，告知原告按照申诉处理，但人民法院准许撤诉的裁定除外；

"(5) with respect to cases in which a judgment¹² or order has already taken legal effect, but either party brings a suit again, the people's court shall advise that party to file an appeal instead, except when the order of the people's court is one that permits the withdrawal¹³ of a suit; "#p#分页标题#e#

 

（六）依照法律规定，在一定期限内不得起诉的案件，在不得起诉的期限内起诉的，不予受理；

"(6) with respect to an action that may not be filed within a specified¹⁴ period according to the law, it shall not be entertained, if it is filed during that period."

 

（七）判决不准离婚和调解和好的离婚案件，判决、调解维持收养关系的案件，没有新情况、新理由，原告在六个月内又起诉的，不予受理。

"(7) in a divorce case in which a judgment has been made disallowing¹⁵ the divorce, or in which both parties have become reconciled after conciliation¹⁶, or in a case concerning adoptive relationship in which a judgment has been made or conciliation has been successfully conducted to maintain the adoptive relation-ship, if the plaintiff files a suit again within six months in the absence of any new developments or new reasons, it shall not be entertained."

 

第一百一十二条 人民法院收到起诉状或者口头起诉，经审查，认为符合起诉条件的，应当在七日内立案，并通知当事人；

"Article 112 When a people's court receives a statement of complaint or an oral complaint and finds after examination that it meets the requirements for acceptance, the court shall place the case on the docket within seven days and notify the parties concerned; "

 

认为不符合起诉条件的，应当在七日内裁定不予受理；

if it does not meet the requirements for acceptance the court shall make an order within seven days to reject it.

 

原告对裁定不服的，可以提起上诉。

"The plaintiff, if not satisfied with the order, may file an appeal."

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