有人說，上文中案名、理由，怪怪的。 對了！最近有學者稱其為強姦一種 。他說，這種強人，有時一句話里有三四次強暴。有些高級司法工作者不覺得異樣，那是慣於或樂於或故意。 認為是“離婚” 案 的，不知不覺地接受了3、4道，那就是： 不與公民結婚就沒資格獲得居住權，所以與公民結婚的 動機--爲了獲得居住權；手段--虛假陳述； 後果---獲得了居住權--所以欺騙了原告，欺騙了美國公民和美國移民局；構成罪行---Fraud；判決--ANNULMENT or divorce。 雖然被告從未通過原告的幫助 獲得任何居住權 ，但誰能顧得上調研？ 基本事實 ： 原告Kam在與前夫CHAN的婚姻期間另行徵婚，通過徵婚網 http://www.jiayuan.com/4012179? lt=msgboxfxly= cp-msg -ym ， 6/26/08 與被告F相識,盛邀旅遊途中的F到紐約“試婚， 度蜜月，享受二人世界，留下打理公司”。 雙方同居始於 7/8/2008 （莊臣酒店 Howard Johnson ， 135-33 38 Ave Flushing , NY 11354） 。在“做了三个时期的夫妻”并經兩次試工之後，Kam"愛得欲罷不能"，鼓動F 速來美國上班并辦理婚姻移民。双方 3/11/09 註冊結婚。3/22,K雇律師申請綠卡。 3/7 上班時F雙肘拉傷未獲治療( 沒買保險)， 至6月下旬，F右臂已不能稍微負重，右手持握失穩。Kam 見F成了“廢人”( F was working at K's hardware store, elbows injured. the end of June, right is not able to carry any weight, right hand can't evenhold steadily anymore. KAM said FC became “ a handicapped person， ” 指出:公民辦綠卡，想低於$5萬是“笑話”！ 6/27日不準F回家過夜；7/3请妹夫WAC带FC去大西洋赌城，自己回前夫家居住 三天 家并“原諒了” 前夫；7/7 KAM通知F结账、终止雇佣；8/13起要求F搬出去“分居”；8/21投訴了自己的移民申請 ； 8/30 將F逐出5805 7a6B，限期一個月離境 ,建議 F 回中國“找個老實的農村女人生活，再不要找我這樣的”，如果不走“那就是騙婚、騙綠卡”， 警告：“离我远点，不要让我看见你，要不出什么事不要怪我”； 9/20/09起製造遞解，警察被出動50多人次； 10/28提起本訴訟。
案名 (即訴訟目的 ） : 《 ACTION TO ANNUL MARRIAGE ON GROUND OF FRAUD; MISREPRESENTATIONSIN ORDER TO OBTAIN LAWFUL PERMANENT RESIDENT STATUS OR, ALTERNATIVELY, ACTION FOR A DIVORCE 》 。 主要 理由： The defendant made these representations in order to induce the plaintiff into this marriage and the marriage was induced by the defendant so as to afford defendant a means of obtaining lawful permanent admission into the United States for residence as an immigrant, to which defendant would otherwise not have been entitled, thereby deceiving, inter alia, the plaintiff and the Citizenship and Immigration Services of the United States. 基本事實：另詳 基是這樣说的： “ 人们断定一件事物是正确，只是因为它未被证明是错误，或断定一件事物是错误，只因为它未被证明是正确，都属诉诸无知 ” 。 本博認為，這是一件尋求司法助惡的案子。希望網友分析評論指教： 這是一件刑事案（移民欺詐），民事案（解除婚姻），還是一個（刑事 + 民事）案？ 真正的訴訟目的是什麽？ 應由哪類法院受理？
在网上找了半天，居然找不到中美望厦条约的全文，最后只找到英文影印本，OCR之后，得到文本如下 TREATY WITH CHINA. THE United States of America and the Ta Tsing Empire, desiring tc establish firm, lasting, and sincere friendship between the two nations, have resolved to fix, in a manner clear and positive, by means of a treaty or general convention of peace, amity, and commerce, the rules which shall in future be mutually observed in the intercourse of their respective countries :-For which most desirable object, the President of the United States has conferred full powers on their Commissioner Caleb Cushing, Envoy Extraordinary and Minister Plenipotentiary of the United States to China j and the August Sovereign of the Ta Tsing Empire on his Minister and Commissioner Extraordinary Tsiyeng, of the Imperial House, a vice Guardian of the Heir Apparent, Governor-general of the Two Kwang, and Superintendant General of the trade and foreign intercourse of the five ports. And the said Commissioners, after having exchanged their said full powers, and duly considered the premises, have agreed to the following articles: ARTICLE I. There shall be a perfect, permanent, universal peace, and a sincere and cordial amity, between the United States of America on the one part, and the Ta Tsing Empire on the other part, and between their people respectively, without exception of persons or places. ARTICLE II. Citizens of the United States resorting to China for the purposes of commerce will pay the duties of import and export prescribed in the Tariff, which is fixed by and made a part of this Treaty. They shall, in no case, be subject to other or higher duties than are or shall be required of the people of any other nation whatever. Fees and charges of every sort are wholly abolished, and officers of the revenue, who may be guilty of exaction, shall be punished according to the laws of China. If the Chinese Government desire to modify, in any respect, the said Tariff, such modification shall be made only in consultation with consuls or other functionaries thereto duly authorized in behalf of the United States, and with consent thereof. And if additional advantages or privileges of whatever description, be conceded hereafter by China to any other nation, the United States, and the citizens thereof, shall be entitled thereupon, to a complete, equal, and impartial participation in the same. ARTICLE III. The citizens of the United States are permitted to frequent the five ports of Kwang-chow, Amoy, Fuchow, Ningpo, and Shanghai, and to reside with their families and trade there, and to proceed at pleasure with their vessels and merchandize to and from any foreign port and either of the said five ports, and from either of the said five ports to any other of them. But said vessels shall not unlawfully enter the other ports of China, nor carryon a clandestine and fraudulent trade along the coasts thereof. And any vessel belonging to a citizen of the United States, which violates this provision, shall, with her cargo, be subject to confiscation to the Chinese Government. ARTICLE IV. For the superintendence and regulation of the concerns of the citizens of the United States doing business at the said five ports, the Government of the United States may appoint consuls, or other officers at the same, who shall be duly recognized as such by the officers of the Chinese Government, and shall hold official intercourse and correspondence with the latter, either personal or in writing, as occasions may require on terms of equality and reciprocal respect. If disrespectfully treated or aggrieved in any way by the local authorities, said officers on the one hand shall have the right to make representation of the same to the superior officers of the Chinese Government, who will see that full inquiry and strict justice be had in the premises; and on the other hand the said consuls will carefully avoid all acts of unnecessary offence to or collision with, the officers and people of China. ARTICLE V. At each of the said five ports, citizens of the United States lawfully engaged in commerce, shall be permitted to import from their own or any other ports into China, and sell there, and purchase therein, and export to their own or any other ports, all manner of merchandize, of which the importation or exportation is not prohibited by this Treaty, paying the duties which are prescribed by the Tariff hereinbefore established, and no other charges whatsoever. ARTICLE VI. Whenever any merchant vessel belonging to the United States shall enter either of the said five ports for trade, her papers shall be lodged with the consul, or person charged with affairs, who will report the same to the Commissioner of Customs; and tonnage duty shall be paid on said vessel at the rate of five mace per ton, if she be over one hundred and fifty tons burden; and one mace per ton if she be of the burden of one hundred and fifty tons or under, according to the amount of her tonnage as specified in the register; said payment to be in full of the former charges of measurement and other fees, which are wholly abolished. And if any vessel, which having anchored at one of the said ports, and there paid tonnage duty, shall have occasion to go to any others of the said ports to complete the disposal of her cargo, the consul, or person charged with affairs, will report the same to the Commissioner of Customs, who, on the departure of the said vessel, will note in the port-clearance that the tonnage duties have been paid, and report the same to the other custom-houses; in which case on entering another port the said vessel will only pay duty there on her cargo, but shall not be subject to the payment of tonnage duty a second time. ARTICLE VII. No tonnage duty shall be required on boats belonging to citizens of the United States, employed in the conveyance of passengers, baggage, letters, and articles of provision, or others not subject to duty, to or from any of the five ports. All cargo-boats, however, conveying merchandize subject to duty, shall pay the regular tonnage duty of one mace per ton, provided they belong to citizens of the United States, but not if hired by them from subjects of China. ARTICLE VIII. Citizens of the United States, for their vessels bound in, shall be allowed to engage pilots, who will report said vessels at the passes, and take them into port; and, when the lawful duties have all been paid, they may engage pilots to leave port. It shall be lawful for them to hire, at pleasure, servants, compradors, linguists, and writers, and passage or cargo boats, and to employ laborers, seamen, and persons for whatever necessary service, for a reasonable compensation, to be agreed 011 by the parties, or settled by application to the consular officer of their government, without interference on the part of the local officers of the Chinese government. ARTICLE IX. Whenever merchant vessels belonging to the United States shall have entered port, the superintendent of customs will, if he see fit, appoint custom-house officers to guard said vessels, who may live on board the ship or their own boats, at their convenience; but provision for the subsistence of said officers shall be made by the superintendent of customs, and they shall not be entitled to any allowance from the vessel or owner thereof; and they shall be subject to suitable punishment for any exaction practised by them in violation of this regulation. ARTICLE X. Whenever a merchant vessel belonging to the United States shall cast anchor in either of said ports, the supercargo, master, or consignee, will, within forty-eight hours, deposit the ship's papers in the hands of the consul or person charged with the affairs of the United States, who will cause to be communicated to the superintendent of customs a true report of the name and tonnage of such vessel, the names of her men, and of the cargo on board; which being done, the superintendent will give a permit for the discharge of her cargo. And the master, supercargo, or consignee, if he proceed to discharge the cargo without such permit, shall incur a fine of five hundred dollars; and the goods so discharged without permit shall be subject to forfeiture to the Chinese government. But if the master of any vessel in port desire to discharge a part only of the cargo, it shall be lawful for him to do so, paying duties on such part only, and to proceed with the remainder to any other ports. Or, if the master so desire, he may, within forty-eight hours after the arrival of the vessel, but not later, decide to depart without breaking bulk; in which case he will not be subject to pay tonnage or other duties or charges, until, on his arrival at another port, he shall proceed to discharge cargo, when he will pay the duties on vessel and cargo, according to law. And the tonnage duties shall be held to be due after the expiration of said forty-eight hours. ARTICLE XI. The superintendent of customs, in order to the collection of the pro. per duties, will, on application made to him through the consul, appoint suitable officers, who shall proceed, in the presence of the captain, supercargo, or consignee, to make a just and fair examination of all goods in the act of being discharged for importation, or laden for exportation on board any merchant vessel of the• United States. And if dispute occur in regard to the value of goods subject to an ad valorem duty, or in regard to the amount of tare, and the same cannot be satisfactorily arranged by the parties, the question may, within twenty-four hours, and not afterwards, be referred to the said consul to adjust with the superintendent of customs. ARTICLE XII. Sets of standard balances, and also weights and measures, duly prepared, stamped, and sealed, according to the standard of the custom at Canton, shall be delivered by the superintendents of customs to the consuls at each of the five ports, to secure uniformity, and prevent confusion in measures and weights of merchandize. ARTICLE XIII. The tonnage duty on vessels belonging to citizens of the United States shall be paid on their being admitted to entry. Duties of import shall be paid on the discharge of the goods, and duties of export on the lading of the same. .When all such duties shall have been paid, and not before, the superintendant of customs shall give a port-clearance, and the consul shall return the ship's papers, so that she may depart on her voyage. The duties shall be paid to the shroffs authorized by the Chinese government to receive the same in its behalf. Duties payable by merchants of the United States shall be received either in sycee silver or in foreign money, at the rate of exchange as ascertained by the regulations now in force. And imported goods, on their resale or transit in any part of the empire, shall be subject to the imposition of no other duty than they are accustomed to pay at the date of this treaty. ARTICLE XIV. No goods on board any merchant vessel of the United States in port are to be transhipped to another vessel, unless there be particular occasion therefor; in which case, the occasion shall be certified by the consul to the superintendant of customs, who may appoint officers to examine into the facts, and permit the transhipment. And if any goods be transhipped without such application, inquiry, and permit, they shall be subject to be forfeited to the Chinese government. ARTICLE XV. The former limitation of the trade of foreign nations to certain persons appointed at Canton by the Government, and commonly called hong-merchants, having been abolished, citizens of the United States engaged in the purchase or sale of goods of import or export, are admitted to trade with any and all subjects of China without distinction; they shall not be subject to any new limitations, nor impeded in their business by monopolies or other injurious restrictions. ARTICLE XVI. The Chinese Government will not hold itself responsible for any debts which may happen to be due from subjects of China to citizens of the United States, or for frauds committed by them: but citizens of the United States may seek redress in law; and on suitable representation being made to the Chinese local authorities through the consul, they will cause due examination in the premises, and take all proper steps to compel satisfaction. But in case the debtor be dead, or without property, or have absconded, the creditor cannot be indemnified according to the old system of the co-hong so called. And if citizens of the United States be indebted to subjects of China, the latter may seek redress in the same way through the consul, but without any responsibility for the debt on the part of the United States. ARTICLE XVII. Citizens of the United States residing or sojourning at any of the ports open to foreign commerce, shall enjoy all proper accommodation in obtaining houses and places of business, or in hiring sites from the inhabitants on which to construct houses and places of business, and also hospitals, churches and cemeteries. The local authorities of the two Governments shall select in concert the sites for the foregoing objects, having due regard to the feelings of the people in the location thereof: and the parties interested will fix the rent by mutual agreement, the proprietors on the one hand not demanding any exorbitant price, nor the merchants on the other unreasonably insisting on particular spots, but each conducting with justice and moderation. And any desecration' of said cemeteries by subjects of China shall be severely punished according to law. At the places of anchorage of the vessels of the United States, the citizens of the United States, merchants, seamen, or others sojourning there, may pass and repass in the immediate neighborhood; but they shall not at their pleasure make excursions into the country among the villages at large, nor shall they repair to public marts for the purpose of disposing of goods unlawfully and in fraud of the revenue. And, in order to the preservation of the public peace, the local officers of government at each of the five ports, shall, in concert with the consuls, define the limits beyond which it shall not be lawful for citizens of the United States to go. ARTICLE XVIII. It shall be lawful for the officers or citizens of the United States to employ scholars and people of any part of China without distinction of persons, to teach any of the languages of the empire, and to assist in literary labors; and the persons so employed shall not, for that cause, be subject to any injury on the part either of the government or of individuals: and it shall in like manner be lawful for citizens of the United States to purchase all manner of books in China. ARTICLE XIX. All citizens of the United States in China, peaceably attending to their affairs, being placed on a- Common footing of amity and goodwill with subjects of China, shall receive and enjoy, for themselves and every thing appertaining to them, the special protection of the local authorities of Government, who shall defend them from all insult or injury of any sort on the part of the Chinese. If their dwellings or property be threatened or attacked by mobs, incendiaries, or other violent or lawless persons, the local officers, on requisition of the consul, will immediately despatch a military force to disperse the rioters, and will apprehend the guilty individuals, and punish them with the utmost rigor of the law. ARTICLE XX. Citizens of the United States who may have imported merchandize into any of the free ports of China, and paid the duty thereon, if they desire to re-export the same, in part or in whole, to any other of the said ports, shall be entitled to make application, through their consul, to the superintendant of Customs, who, in order to prevent frauds on the revenue, shall cause examination to be made by suitable officers to see that the duties paid on such goods, as entered on the custom-house books, correspond with the representation made, and that the goods remain with their original marks unchanged, and shall then make a memorandum in the port-clearance, of the goods, and the amount of duties paid on the same, and deliver the same to the merchant; and shall also certify the facts to the officers of customs of the other ports. All which being done, on the arrival in port of the vessel in which the goods are laden, and every thing being found on examination there to correspond. she shall be permitted to break bulk and land the said goods, without being subject to the payment of any additional duty thereon. But if, 011 such examination, the superintendent of customs shall detect any fraud on the revenue in the case, then the goods shall be subject to forfeiture and confiscation to the Chinese Government. ARTICLE XXI. Subjects of China who may be guilty of any criminal act towards citizens of the United States, shall be arrested and punished by the Chinese authorities according to the laws of China: and citizens of the United States who may commit any crime in China, shall be subject to be tried and punished only by the consul, or other public functionary of the United States, thereto authorized according to the laws of the United States. And in order to the prevention of all controversy and disaffection, justice shall be equitably and impartially administered on both sides. ARTICLE XXII. Relations of peace and amity between the United States and China being established by this treaty, and the vessels of the United States being admitted to trade freely to and from the five ports of China open to foreign commerce, it is further agreed that in case at any time hereafter, China should be at war with any foreign nation whatever, and for that cause should exclude such nation from entering her ports, still the vessels of the United States shall not the less continue to pursue their commerce in freedom and security, and to transport goods to and from the ports of the belligerent parties, full respect being paid to the neutrality of the flag of the United States: Provided that the said flag shall not protect vessels engaged in the transportation of officers or soldiers in the enemy's service; nor shall said flag be fraudulently used to enable the enemy's ships with their cargoes to enter the ports of China; but all such vessels so offending shall be subject to forfeiture and confiscation to the Chinese Government. ARTICLE XXIII. The consuls of the United States at each of the five ports open to foreign trade, shall make annually to the respective Governors-general thereof, a detailed report of the number of vessels belonging to the United States which have entered and left said ports during the year, and of the amount and value of goods imported or exported in said vessels, for transmission to and inspection of the Board of Revenue. ARTICLE XXIV. If citizens of the United States have special occasion to address any communication to the Chinese local officers of Government, they shall submit the same to their consul, or other officer, to determine if the language be proper and respectful, and the matter just and right; in which event he shall transmit the same to the appropriate authorities for their consideration and action in the premises. In like manner, if subjects of China have special occasion to address the consul of the United States, they shall submit the communication to the local authorities of their own Government, to determine if the language be respectful and proper, and the matter just and right; in which case the said authorities will transmit the same to the consul, or other officer, for his consideration and action in the premises. And if controversies arise between citizens of the United States and subjects of China, which cannot be amicably settled otherwise, the same shall be examined and decided conformably to justice and equity by the public officers of the two nations acting in conjunction. ARTICLE XXV. All questions in regard to rights, whether of property or person, arising between citizens of the United States in China, shall be subject to the jurisdiction and regulated by the authorities of their own Government. And all controversies occurring in China between citizens of the United States and the subjects of any other Government, shall be regulated by the treaties existing between the United States and such Governments, respectively, without interference on the part of China. ARTICLE XXVI. Merchant vessels of the United States lying in the waters of the five ports of China open to foreign commerce, will be under the jurisdiction of the officers of their own Government j who, with the masters and owners thereof, will manage the same without control on the part of China. For injuries done to the citizens or the commerce of the United States by any foreign power, the Chinese Government will not hold itself bound to make reparation. But if the merchant-vessels of the United States, while within the waters over which the Chinese Government exercises jurisdiction, be plundered by robbers or pirates, then the Chinese local authorities, civil and military, on receiving information thereof, will arrest the said robbers or pirates, and punish them according to law, and will cause all the property which can be recovered, to be placed in the hands of the nearest consul, or other officer of the United States, to be by him restored to the true owner. But if, by reason of the extent of territory and numerous population of China, it should, in any case, happen that the robbers cannot be apprehended, or the property only in part recovered, then the law will take its course in regard to the local authorities, but the Chinese Government will not make indemnity for the goods lost. ARTICLE XXVII. If any vessel of the United States shall be wrecked or stranded on the coast of China, and be subjected to plunder or other damage, the proper officers of Government on receiving information of the fact, will immediately adopt measures for their relief and security; and the persons on board shall receive friendly treatment, and be enabled at once to repair to the most convenient of the free ports, and shall enjoy all facilities for obtaining supplies of provisions and water. And if a vessel shall be forced in whatever way to take refuge in any port other than one of the free ports, then in like manner the persons on board shall receive friendly treatment, and the means of safety and security. ARTICLE XXVIII. Citizens of the United States, their vessels and property, shall not be subject to any embargo; nor shall they be seized or forcibly detained for any pretense of the public service; but they shall be suffered to prosecute their commerce in quiet, and without molestation or embarrassment. ARTICLE XXIX. The local authorities of the Chinese Government will cause to be apprehended all mutineers or deserters from on board the vessels of the United States in China, and will deliver them up to the consuls or other officers for punishment. And if criminals, subjects of China, take refuge in the houses or on board the vessels of citizens of the United States, they shall not be harbored or concealed, but shall be delivered up to justice, on due requisition by the Chinese local officers addressed to those of the United States. The merchants, seamen, and other citizens of the United States shall be under the superintendence of the appropriate officers of their government. If individuals of either nation commit acts of violence and disorder, use arms to the injury of others, or create disturbances endangering life, the officers of the two governments will exert themselves to enforce order, and to maintain the public peace, by doing impartial justice in the premises. ARTICLE XXX. The superior authorities of the United States and of China in corresponding together, shall do so, in terms of equality, and in'the form of mutual communication (chau hwui) .The consuls, and the local officers, Civil and military, in corresponding together, shall likewise employ. the. style and form of mutual communication, (chau hwui.) When inferior officers of the one government address superior officers of the other, they shall do in the style and form of memorial, (shin chin) Private individuals, in addressing superior officers, shall employ the style of petition, (pin ching.) In no case shall any terms or style be suffered which shall be offensive or disrespectful to either party. And it is agreed that no presents, under any pretext or form whatever, shall ever be demanded of the United States by China, or of China by the United States. ARTICLE XXXI. Communications from the government of the United States to the court of China shall be transmitted through the medium of the Imperial Commissioner charged with the superintendence of the concerns of foreign nations with China, or through the Governor-general of the Liang Kwang, that of Min and Cheh, or that of the Liang Kiang. ARTICLE XXXII. Whenever ships of war of the United States, in cruizing for the protection of the commerce of their country, shall arrive at any of the ports of China, the commanders of said ships and the superior local authorities of Government, shall hold intercourse together in terms of equality and courtesy, in token of the friendly relations of their respective nations. And the said ships of war shall enjoy all suitable facilities on the part of the Chinese Government in the purchase of provisions, procuring water, and making repairs if occasion require. ARTICLE XXXIII. Citizens of the United States, who shall attempt to trade clandestinely with such of the ports of China as are not open to foreign commerce, or who shall trade in opium or any other contraband article of merchandize, shall be subject to be dealt with by the Chinese Government, without being entitled to any countenance or protection from that of the United States; and the United States will take measures to prevent their flag from being abused by the subjects of other nations, as a cover for the violation of the laws of the Empire. ARTICLE XXXIV. When the present convention shall have been definitively concluded, it shall be obligatory on both Powers, and its provisions shall not be altered without grave cause; but, inasmuch as the circumstances of the several ports of China open to foreign commerce are different, experience may show that inconsiderable modifications are requisite in those parts which relate to commerce and navigation: in which case, the two Governments will, at the expiration of twelve years from the date of said convention, treat amicably concerning the same, by the means of suitable persons appointed to conduct such negotiation. And when ratified, this Treaty shall be faithfully observed in all its parts by the United States and China, and by every citizen and subject of each. And no individual State of the United States can appoint or send a minister to China to call in question the provisions of the same. The present treaty of peace, amity, and .commerce, shall be ratified and approved by the President of the United States, by and with the advice and consent of the Senate thereof, and by the August Sovereign of the Ta Tsing Empire, and the ratifications shall be exchanged, within eighteen months from the date of the signature thereof, or sooner if possible. . In faith whereof, We, the respective Plenipotentiaries of the United States of America, and of the Ta Tsing Empire, as aforesaid. have signed and sealed these presents. Done at Wang Hiya, this third day of July, in the year of our Lord Jesus Christ, one thousand eight hundred and forty-four; and of Taoukwang, the twenty-fourth year, fifth month, and eighteenth day. TSIYENG,
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