If the defendant's name in the indictment is wrong, will the court definitely dismiss the indictment?

Case Overview Zhao Bing of Henan Province and Qin Yiming of Shaanxi Province worked in a company on 20/09/KLOC. Because their work and life are often together, they are closely related. Qin Yiming called Zhao Bing "Bing Bing" and Zhao Bing called Qin Yiming "Mingming", which is what the whole company called them.

On June 6, 20265438 16, Zhao Bing of Henan received a phone call from his mother, saying that his father was seriously ill and asked him to go home quickly. Zhao Bing told Qin Yiming that he needed money to see his father. Qin Yiming said without hesitation, "I only have 50 thousand yuan in front of me, so you should take it home to see your father first." Zhao Bing said, I'll write you an IOU. Qin Yiming said, "Do we still need to write IOUs in this relationship?" Despite what Qin Yiming said, Zhao Bing wrote an IOU to Qin Yiming: "I borrowed 50,000 yuan in cash from Qin Yiming today. Borrower: Bingbing. 2021June 16. "

At 6: 45pm on June 6th, 2002/KLOC-0, Qin Yiming and Zhao Bing took money to Zhao Bing at the bank counter at the station. At 9 pm, Zhao Bing got on the train and went home. A month later, Zhao Bing returned to work in the company. Qin Yiming inquired about his father's illness. Zhao Bing just said "dead" and never spoke again.

In the Spring Festival of 2022, Qin Yiming was going home. He asked Zhao Bing if he could give him some money. Zhao Bing prevaricated and didn't pay back a penny. Qin Yiming was very angry and chased Zhao for money. Two good friends had a fight. After the company leaders knew this, they asked the company mediation committee to mediate. Zhao Bing actually said that he had never borrowed money from Qin Yiming, and he never saw Qin Yiming again. In desperation, Qin Yiming sued the people's court and demanded that Zhao Bing immediately return the loan of 50,000 yuan.

After the court accepted the case, Zhao Bing was summoned to appeal. Zhao Bing said that he was not called "Bing Bing", nor did he know "Mingming", let alone borrow money. Do not accept any court proceedings. The court advised him to withdraw the complaint because there was no clear defendant in it. Qin Yiming almost fainted. I have no choice but to drop the charges.

case analysis

One. legal provision

"Having a clear defendant" is a necessary condition in the conditions of prosecution stipulated in Article 122 of the Civil Procedure Law.

Article 139 of the Supreme Court's Opinions on the Application of Several Issues: If the prosecution does not meet the admissibility conditions, the people's court shall rule that it will not be accepted; After filing the case, it was found that the prosecution did not meet the acceptance conditions, and the prosecution was dismissed. It can be seen from the above provisions that if the defendant's name is misspelled, then legally speaking, the accused "defendant" does not really exist and has no rights and obligations. The court should dismiss your lawsuit.

Second, if the defendant's name in the complaint is wrong, must the complaint be withdrawn?

In real life, there are indeed many people who write the defendant's name as a homonym or nickname or birth name in the complaint. At this time, the defendant will take out his identity card to prove that he is not the defendant in this case and refuse to accept the court summons; Some migrant workers often misspell the defendant's name because they don't pay attention to the full name of the employer when suing; Sometimes the defendant's name may be misspelled because of a clerical error. Wait a minute. At this time, the court will often tell you that you have sued the wrong person, or that the person you sued does not exist, and ask you to drop the lawsuit. If you don't drop the lawsuit, the court will dismiss your lawsuit.

Is it necessary to withdraw the complaint because the defendant's name in the complaint is wrong? Don't worry, let Zhang Ge tell you slowly.

The above cases are real cases. After Qin Yiming dropped the lawsuit, he went to the Salt Lake District Legal Aid Center for consultation. It happened that Zhang Ge was on duty. After listening to Qin Yiming's statement, Zhang Ge gave him a suggestion to let Qin Yiming go back to the company to collect evidence to prove that Mingming was Qin Yiming and Bingbing was Zhao Bing. And then re-sue. Finally, Qin Yiming won the lawsuit.

In fact, for the first time, Qin Yiming did not need to withdraw the lawsuit. Just lost the evidence to prove that "Bing Bing" is Zhao Bing. This, together with other information of the defendant in your complaint (work unit, address, etc.). ) is enough to distinguish the defendant in your complaint from others, and you can identify it as a clear defendant. The judge will not advise you to give up the lawsuit, and the court will not rule to dismiss your lawsuit.

Third, the legal basis for not withdrawing the lawsuit.

Some people may ask, is there a clear legal basis for you to say so?

Brother Zhang replied: Yes!

It is not included in the Civil Procedure Law, nor in the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC) in July 1992, but it has been abolished. However, Article 209 of Judicial Interpretation of 202 1 Latest Civil Procedure Law stipulates this situation:

"If the plaintiff provides the name, address and other specific information of the defendant, which is enough to distinguish the defendant from others, it can be considered as a clear defendant. If the defendant's information listed in the indictment is insufficient to determine the defendant clearly, the people's court may inform the plaintiff to make corrections. If the plaintiff is still unable to determine the defendant after making corrections, the people's court will rule that it will not be accepted. "

According to this regulation; Brother Zhang tells you three things:

1. If you misspell the defendant's name or title in the indictment, don't panic, don't listen to the judge's persuasion and drop the lawsuit, and don't be afraid of being dismissed. As long as the information you provide about the name and address of the defendant is specific and clear enough to distinguish it from others, the people's court can consider that there is a clear defendant.

2. Even if the defendant information listed in the complaint is not enough to determine the clear defendant, you don't have to panic, and the people's court will tell you to make corrections. People's courts have this obligation.

If the judge tells you to correct it, but you don't correct it or you can't prove it after correction, the people's court will definitely dismiss your lawsuit. The prerequisite for the people's court to decide not to accept it is that you still can't determine the clear defendant after making corrections; The prerequisite for the people's court to decide to dismiss the prosecution is that you still can't determine the clear defendant after making corrections, but you still insist on prosecuting.

As long as you understand Zhang Ge's article, even if the defendant's name in the indictment is wrong, as long as you correct it in time, the court will certainly accept it.

Do you understand?