Last Updated on March 23, 2024 by Ranking
China has developed a mature and comprehensive civil procedure system with sophisticated statutes and provisions. From 2016 to September 2021, more than 330,000 commercial and maritime cases with foreign elements were heard and concluded by courts in China. Filing a case in China is both a good solution for the plaintiff and a serious warning for the defendant.
This guide attempts to provide a comprehensive roadmap for China’s civil procedure system. It will start with some basic concepts of the Chinese court system and cover the entire process and most aspects of a civil case. The term “China” as used in this guide, unless otherwise defined, refers to mainland China and does not include the Hong Kong, Macau and Taiwan regions.
Chinese lawyers can conduct investigations and collect evidence based on a court investigation order. The burden of proof rests with the party making the proposal. Legal costs are borne by the losing party. What is an expert opinion? What impact does an expert’s opinion have on the evidence?
Chenyang Zhang is a partner of Tian Yuan Law Firm. He specializes in dispute resolution, arbitration and alternative dispute resolution. Chenyang Zhang’s working languages are Chinese (native Mandarin) and English (fluent). Mr. Zhang worked with Yuanhe Partners and King and Wood Mallesons.
Chinese courts are divided into 4 tiers, and the presidents of Chinese courts at different levels are elected by the People’s Congress. Chinese courts can be divided into three categories: SPCs, local courts and specialized courts. In June 2018, two international commercial courts were established, in Shenzhen and Xi’an, respectively.
The SPC is the highest-level judicial body in China. The existing specialized courts in China mainly include intellectual property courts, internet courts, financial courts and maritime courts. Local courts usually hear most cases in a particular area.
Specialized courts usually hear specific types of cases in a specific area. China emphasizes that all political power comes from the people and serves the people. The hierarchical trial system for civil cases in China can be summarized as “2 + 1 + 1”, that is: Generally speaking, cases are closed after the second instance.
The hierarchical trial system for civil cases in China can be summarized as “2 + 1 + 1”. Generally speaking, cases are closed after the second instance. The parties may also apply to a higher court to reconsider the case after a final judgment.
In the case of simple civil cases heard by the first-instance people’s courts, if the amount in dispute is less than 50% of the average annual wage in the previous year of the relevant province, the case will be closed after the first instance and there is no appeal for the interested parties. Civil cases involving foreign affairs cannot be forcibly closed. regardless of the size of the controversy, but may be the subject of a second instance.
The difference between filing a motion for reconsideration and an appeal is that unless the parties appeal legally, the court will certainly hear the second instance. According to incomplete statistics and personal experience, about 10% of requests for reconsideration may be accepted by the court. The parties may also request the prosecutor’s office at the same level as the court of last instance to consider the case.
The general format of the case number in Chinese courts is: (case admission year) + court code + case type code + serial number. Before 2016, there was no uniform judicial code in China. The code of all high courts is an abbreviation of the Chinese character of the province in which they are located.
Since 2016, China has begun to implement uniform rules for the compilation of judicial codes. Each court has a unique code through which we can directly obtain information about the court’s location, its hierarchy, categories and other information. The code of all high courts is an abbreviation of the Chinese character of the province in which they are located.
Most case titles in mainland China consist of two parts, namely the types of disputes and the information of the interested parties, the first of which is called the cause of action. The lawsuit is a very important tool for Chinese courts. In 2008, the SPC broadly updated the list of causes of action and clearly clarified the definition and functions.
In 2011 and 2020, KPL broadly renewed its list of causes for action twice. The reasons on the list are divided into four levels, of which a level 4 claim covers the narrowest and most detailed scope of matters. If a case involves multiple disputes, it should theoretically have multiple causes. However, in practice, most cases usually have only one cause.
The cause of action directly reflects the legal basis of the plaintiff’s claim. The scope of compensation is also limited by the contract and contract law. Chinese courts typically charge a case fee at a progressive rate. The higher the claim amount, the lower the case acceptance fee.
The main function of the lawsuit is the division of work between the various procedural departments of the courts. In recent years, the number of cases in which women become victims of employment discrimination and sexual harassment has been increasing. For women plaintiffs in these cases, if they meet certain conditions, the government will consider providing them with legal aid.
Chinese courts will charge fees at the fee rates used in ordinary enforcement cases. In practice, some courts do not strictly apply this provision for various reasons. The number of foreign cases covered by the simplified procedure is relatively small, so foreign entities generally have to pay fees at the standard rate. This is intended to encourage courts to resolve disputes through consultation and negotiation.
The losing party ultimately bears the legal costs unless the winning party voluntarily agrees to bear part of the costs. The winning party must maintain closer contact with the court and repeatedly insist that the court make restitution in accordance with the law. Foreign parties can entrust Chinese lawyers or their own staff as agents to handle civil cases in China.
Foreign parties can entrust Chinese lawyers or their own staff as agents to handle civil cases in China. Compared to the staff, Chinese lawyers are more familiar with Chinese law, court procedures and judicial practice. Chinese lawyers can collect fees from their principals in a variety of ways, and a sensible charging pattern will help motivate lawyers to perform to their best potential.
If a third party has evidence, the parties may request the court to conduct an investigation and collect evidence. Most courts will only issue such investigative orders to Chinese lawyers representing a party. Chinese lawyers may charge a flat fee per hour, depending on the outcome of the case (also known as a contingency fee)
Chinese lawyers may charge per hour, flat fee, case outcome (also known as contingency fee), “flat fee + contingency fee”, etc. Chinese lawyers are not subject to any secrecy obligation to present facts and information about crimes that are or will be committed .
The court finds that the objection is justified, the case will be transferred to the competent court. If the court, after self-examination, decides that it does not have jurisdiction in the case it has accepted, it may transfer the case ex officio, even if the defendant does not raise an objection. The court receiving the transferred case may not re-transfer the case to another court. Trial courts in civil cases are determined primarily by the type of case and the amount in dispute.
Hierarchical jurisdiction cannot be changed by the consent of the parties, which is completely different from territorial jurisdiction. For international commercial cases in the first instance where the disputed amount exceeds RMB 300 million, the parties may agree to choose the SPC as the competent court. If the higher court deems it necessary, it may take the initiative to exercise jurisdiction over matters already accepted by the lower court.
Chinese courts allow parties to choose the court for the venue actually involved in the dispute by written agreement. The parties may choose more than one competent court in the contract. “Convenience for defendants” is the most basic principle of allocating jurisdiction among Chinese courts.
“Convenience for defendants” is the most basic principle of allocating jurisdiction among Chinese courts. In most cases, the competent court is the place of residence of the defendant. The basic principles of Chinese law regarding the determination of domicile are as follows.
In the event of disputes arising from the contract, the court of the place of performance of the contract is also competent to resolve such disputes. The plaintiff has the right to file a lawsuit in the court having jurisdiction over him to recover arrears under the contract. Chinese law has specific provisions regarding the place of performance of certain contracts, such as insurance contracts and transport contracts.
In intellectual property infringement cases, some rights holders purchase infringing products online, require the seller to deliver the infringing products to a designated location, and then file a lawsuit in the court where the delivery takes place. To improve the efficiency of the legal process, Chinese law stipulates that these cases fall uniformly under the jurisdiction of the company where the company is domiciled, without taking into account other factors such as the location of the defendant.
Currently, exclusive jurisdiction under Chinese law includes, among others: As is clear from the 2022 Draft CPL Revision, the scope of exclusive jurisdiction. matters may be extended to include disputes arising from the establishment, dissolution, liquidation, resolution, etc. of legal entities or non-corporate organizations incorporated in China.
Chinese courts are speeding up hearing of jurisdictional objections. Chinese law does not limit a party’s right to object to jurisdiction or file an appeal. After deciding to transfer the case, the court will transfer all case files to the new court. The parties have no right to appeal against the court’s transfer decision.
To participate in civil proceedings in China, foreign individuals must present passports or other equivalents proving their identity. All Chinese and foreign companies need an individual on behalf of the company to sign court documents and participate in legal disputes.
Chinese courts require formal documents to be notarized, authenticated and translated. Chinese courts have established online platforms for filing cases (including WeChat). These channels make it much easier for parties to file a lawsuit. After receiving the lawsuit, the court will consider it and decide whether to file a lawsuit.
Chinese courts have created online platforms for filing cases (including WeChat, the most popular social media in China). These channels make it much easier for parties to file a lawsuit. As of May 1, 2015, the Supreme People’s Court carried out a reform, changing the “case examination system” to the “case registration system”
The court will notify the claimant of legal costs (court costs, see section 1.5) and assign the case to the appropriate tribunal and judge(s) dealing with the specific case, according to the cause of action. The online case filing platform operated by SPC for foreign parties is called “People’s Court Online Service” and is an applet embedded in WeChat. The platform also serves residents of Hong Kong, Macau and Taiwan.
Under the new rules, foreign parties can apply to Chinese courts for an “online video witness” simultaneously in the presence of a judge, a party (and its translator) and a lawyer. If this method is adopted, there is no need for notarization, authentication and other procedures.
People’s assessors are selected randomly from among permanent residents who are over 28 years of age in the court’s jurisdiction. Chinese citizens can participate in the process by joining the collegial panel. In most cases, the powers of a people’s assessor are the same as those of judges. The following matters are considered by a seven-member board. panel, people’s assessors have the right to vote only on the determination of facts, excluding the application of the law.
People’s assessors appear in court only in a symbolic sense, without expressing any opinion during the trial and post-trial meetings. SPC has developed a number of systems to help assessors perform their duties better. People’s Assessors must be Chinese citizens who are at least 28 years of age and are physically capable of normally performing their duties.
If people’s assessors are needed at a trial, the court will randomly select candidates. Moreover, citizens themselves can also act as evaluative citizens. If the defendant is a defendant, a Chinese court may serve court documents on designated personnel or organizations. To the extent permitted by domestic law, Chinese courts may also serve documents.
A court employee may serve documents directly on the person to be served, or on a designated agent to accept service, an attorney or an adult family member who lives with that person. In practice, with limited manpower, Chinese courts have difficulty serving court documents by personal service and serving by leaving rejected court documents at home on a large scale.
If the whereabouts of the person to be served are unknown or delivery is not possible in any other way, the court serves the documents by way of an announcement. Nowadays, the publication is generally published in the Journal of the People’s Court. Chinese courts will establish a unified electronic judicial publication platform. Most publications will be published online.
If the country of the person to be served has entered into a bilateral agreement with China on the service of judicial documents or has acceded to the Hague Service Convention, the Chinese court will serve the judicial documents in accordance with that convention. Chinese courts typically serve documents by sending them to the central authority of the requested state. If service is not possible in any other way, the court will ultimately apply service by announcement.
If service by other methods is not possible, the Chinese court will ultimately use the method of service by publication. However, the publication period is 3 months, which is approximately 2 months longer than in the case of the Service via publication on Chinese websites. Publication may take place in newspapers with national and/or international circulation.
China has concluded 38 bilateral agreements on service of court documents with France, Italy, Spain, Russia, South Korea, Singapore and other countries. When deciding specific cases, Chinese courts will be guided by the principle of reciprocity. The stages of a court hearing usually include: an investigation by the court, debates in court, closing arguments and mediation.
In first-instance cases in ordinary mode is 6 months and may be extended twice to 15 months. Chinese courts will hear cases with few disputes and simple legal relationships through a simplified procedure. Simplified procedure cases are heard by only one judge, with shorter hearing times and more flexible and simpler procedural procedures.
Even though the defendant does not file a defense response within the defense deadline, he or she does not lose the right to defend himself or herself in further proceedings. The term “exchange of evidence” in Chinese law mainly refers to the court organizing the parties to exchange and verify evidence. Chinese law provides that the court may prepare for the trial by organizing an exchange of evidence and convening a pre-trial conference.
China has adopted an inquisitorial system in its judicial processes. Parties should express their opinions to the judges, not to the other side.
In most cases, court hearings must be held in public. The public can ask the court to allow him to be present at the court hearing. Some court hearings will also be available live online via China Court Trial Online (http://tingshencourt.gov.cn/).
If any of the parties is not satisfied with the first instance judgment, they may submit a written appeal to initiate proceedings in the second instance within 15 days. For a foreign entity not domiciled in mainland China, the deadline for filing an appeal will be extended to 30 days. If the parties do not present new facts, evidence and reasons, the court will find that for certain reasons there is no need to hold a formal court hearing.
Chinese courts will regularly assess the number and percentage of unsealed cases of each judge. Most Chinese judges will use various methods, including mediation, to close the case as quickly as possible. Reforming the division of cases into ordinary and simplified procedures may help Chinese courts continuously improve trial efficiency.
Cases covered by the formal procedure are heard by a collegiate panel of three or more judges (and people’s assessors, if any), unless special conditions for consideration by a single judge are met. All cases in the simplified procedure are heard by only one judge. In ordinary cases, the defendant’s defense deadline after being served is 15 days, and the deadline for presenting evidence set by the court cannot be shorter than 15 days.
As for the trial period, for small claims it is only 2 months, with one extension up to 3 months. The small claims procedure does not apply to foreign cases, regardless of their value in dispute. Foreign-owned enterprises, including Joint Ventures (JVs) and Wholly Foreign-Owned Enterprises (WFOEs), established in China by foreign entities are registered in China and therefore cannot be considered foreign organizations.
The rules for serving court documents to foreign entities are more stringent and complicated. Chinese courts promote centralized handling of foreign-related commercial cases. We believe that as China continues to open up to the outside world, Chinese courts will apply more flexible standards.
We believe that as China continues to open up to the outside world, Chinese courts will apply more flexible standards when deciding foreign cases. Most facts that must be proven are subject to the “preponderance of the evidence” standard, and some specific facts that must be proven are subject to “beyond a reasonable doubt.” Fraud, duress and malicious collusion are statutory grounds for parties to claim rescission or invalidation of a contract.
The standard of proof refers to the degree of proof necessary to establish evidence in a legal proceeding. Most facts requiring proof are subject to a “preponderance of the evidence” standard. Some specific facts that must be proven must meet “beyond a reasonable doubt” and only apply in criminal cases. “The burden of proof rests with the party making the proposal” is the basic principle regarding the burden of proof in Chinese legal proceedings.
The burden of proof is not static and may shift from one party to another during the trial. Only in exceptional circumstances may parties ask the court for assistance in obtaining evidence. Chinese law reverses the burden of proof, which rests with the opposing party rather than the party making such a claim or representation.
In some cases, there is a large discrepancy between the two parties in terms of legal knowledge and ability to present evidence. To prove some particular facts, it is often difficult for the plaintiff to produce evidence. In such circumstances, the normal rule of presenting evidence no longer applies. The burden of proof will be borne by the opposing party.
Some parties may adopt the strategy of a surprise attack, i.e. presenting evidence without prior disclosure during the court hearing. In the case of general evidence, the parties may conduct an on-site preliminary examination and explain to the judge that they reserve the right to supplement and modify the examination opinion in the future. In the case of crucial or complex evidence, we advise our clients to ask the court for additional time to examine the evidence.
Some judges do not strictly specify the deadline for presenting evidence. Some parties may adopt the strategy of a surprise attack, i.e. presenting evidence without prior disclosure during the court hearing. Under Chinese law, a party’s statement or explicit admission of incriminating facts during legal proceedings constitutes an admission of guilt.
Under Chinese law, a party’s statement or explicit admission of incriminating facts during legal proceedings constitutes an admission of guilt. If one party admits unfavorable facts, the other party no longer has to bear the burden of proof, and the court can directly determine the facts of the case based on the admission itself. The principle of self-admission does not apply to facts relating to personal status, national interests and social/public interests.
It should be noted that the court has the right not to admit a fact it has admitted if it is inconsistent with the fact proven by other evidence. Chinese law encourages parties to resolve disputes by compromise to save time and money for everyone. Under Chinese law, the losing party covers the costs of the witness’s testimony.
A witness generally gives evidence in court, but Chinese law does not have specific provisions on cross-examination. The role of witness testimony in civil proceedings in China is relatively limited for various reasons, and documentary evidence remains the most important source of evidence. In China, only persons other than the interested parties can be witnesses.
A witness may only testify in court if the witness suffers from health problems, traffic disruptions, natural disasters or other legitimate reasons. If the court agrees to the witness’s failure to appear in court, the witness may testify by submitting written testimony, audio and video materials or by videoconferencing. The costs of witness testimony are borne by the losing party. Necessary expenses for transportation, accommodation and meals will be calculated in accordance with travel costs and grant standards.
Under the CPL, the cost of witness testimony is borne by the losing party. These expenses include necessary expenses for transportation, accommodation, food and other necessary expenses. Lost wages will be calculated based on the average daily wage standard for Chinese government personnel. The above economic compensation rules were added in 2012.
Litigation often involves highly professional issues that are usually beyond the expertise of judges, lawyers and the parties themselves. To solve these problems, the judge may use expert opinions, and the parties may use the assistance of an expert. The judicial interpretation on civil evidence provides for the first time that parties may ask the court to have one or two “persons with expertise” appear in court.
Chinese law does not specify the professional qualifications of expert assistants. Expert assistants may express their opinions only on expert reports and professional issues. In practice, typical situations involve commenting on expert opinions. Secret recording is a common method of gathering evidence in Chinese courts. If the other party meets certain conditions, the court may admit it as evidence.
In the Qihoo 360 v. Tencent series of abuse of market dominance cases, both the plaintiff and the defendant engaged expert counsel. In 2001, Chinese courts relaxed restrictions on secret recording and granted it status as evidence. From 2015, a secret recording will be able to be widely used as evidence, unless it “seriously” violates the legitimate rights and interests of other people or violates prohibitive legal provisions.
In China, the Internet and social media are recognized by Chinese courts as sources of evidence. As evidence, the parties may submit to the court printouts of content found on the Internet or social media. However, given the nature of digital evidence, which can be easily manipulated and destroyed, Chinese courts are very concerned about the authenticity of such evidence.
Timestamping of evidence has been widely recognized by Chinese courts. Based on the timestamp, blockchain evidence collection increases the reliability of the timestamp through the use of blockchain technology. Chinese courts have recognized blockchain as a method of collecting evidence and are strengthening research on it. A timestamp is an electronic certificate issued by an institution providing a timestamp service to confirm that electronic data existed at a specific point in time.
A timeline is an electronic certificate issued by an institution providing a timestamp service to confirm that electronic data existed at a specific point in time. Timestamps issued by a credible, neutral institution can be recognized by Chinese courts and are therefore legally effective. Based on the timestamp, blockchain evidence collection increases the reliability of the timestamp through the use of blockchain technology. It is worth noting that the three existing courts in China have considered themselves as a node in building their own system.
The parties transmit electronic data to the blockchain institution’s network platform, which will timestamp it. The parties then store copies of them on the servers of other collaboration platforms. The standard rate for collecting evidence on one website is CNY 5. For screen recording or computer operation process recording, the rate is CNY 50/10 min.
Many blockchain platforms have developed self-help evidence collection features. On December 31, 2014, China piloted the technical examination officer system in three intellectual property courts in Beijing, Shanghai and Guangzhou. In May 2019, the Supreme People’s Court issued the Provisions of the Supreme People’s Court regarding the participation of technical examination officials in intellectual property disputes.
On December 31, 2014, China piloted the technical examination officer system in three intellectual property courts in Beijing, Shanghai and Guangzhou. In May 2019, the Supreme People’s Court issued the Provisions of the Supreme People’s Court regarding the participation of technical examination officials in intellectual property disputes.
Expert testimony is one of the eight types of statutory evidence provided for in the CPL and therefore plays an important role in Chinese civil proceedings. Expert reports have long been held in high esteem by judges, and the practice of “replacing a hearing with an assessment or examination” is often observed. Although Chinese courts are trying to reverse this practice, expert opinions will still play a very important role.
An expert opinion is an opinion, commissioned by the court, issued by a designated judicial expert institution on the professional facts of the case. The expert’s opinion should only concern the facts of the case, and only the judge can decide on the application of the law. The parties have the right to request the exclusion of an expert.
Expert opinions are generally assigned to judges largely due to the neutrality of judicial expert institutions and experts. The expert opinion was called an “expert conclusion” in the CPL before its revision in 2012. In 2014, the SPC issued Guiding Case No. 24 to remind judges of the need to distinguish issues of fact from legal issues.
By weakening the role of expert testimony, Chinese law has strengthened the right of parties to challenge expert testimony. Chinese law states that a court can conduct an investigation and collect evidence under certain circumstances. Assessment and examination (or credentialing) costs vary by issue and location.
Chinese courts are obliged to assist foreign courts in investigations and gathering evidence. Pursuant to Art. 9 of the Hague Convention on the Taking of Evidence, Chinese courts may comply with the request of the requesting state. Chinese courts have also set certain requirements regarding the connection between the target evidence and the foreign case. In the absence of a special request from the state, the Chinese court will provide assistance in the investigation in accordance with the methods and procedures provided under Chinese law.
China is a contracting state to the Hague Convention on the Taking of Evidence. Chinese courts hear requests for assistance in investigation and gathering of evidence submitted by other contracting states. In the absence of a special request from the requesting country, the Chinese court will provide assistance. In practice, common methods of investigation and evidence collection by Chinese courts include, among others: obtaining files and interviewing witnesses.
Evidence preservation is a measure used by a court to examine, collect and preserve evidence when it may be destroyed or difficult to collect in the future. China does not allow the courts of the requesting country to independently conduct investigations and collect evidence in China. Before filing a case, the parties may ask the court to secure evidence.
Evidence protection mainly focuses on securing evidence that may be destroyed for subjective and objective reasons. In contrast, the investigation and collection of evidence by courts focuses more on helping parties obtain evidence. China is gradually introducing a system of order of presentation of evidence. Some call it China’s “evidence discovery and disclosure” system.
China is gradually introducing a system of order of presentation of evidence. Its purpose is to force the evidence administrator to provide evidence. Some call it China’s “evidence discovery and disclosure” system. But there is a clear difference between them. The parties must ask the court to examine and collect or preserve evidence.
The scope of application of China’s production of evidence order is limited to documentary evidence, audiovisual materials and electronic data. If there is a need to obtain evidence from persons not participating in the case, the parties will request the court to examine and collect or secure evidence, the rules of which are different.
There have also been cases in which the courts dismissed the application because the evidence requiring disclosure was not crucial to establishing the facts. Based on the prevailing principle that the “burden of proof rests with the proposing party” in Chinese civil proceedings, parties should continue to focus on collecting evidence themselves for the foreseeable future.
In China, parties can submit evidence selectively, but once submitted, a copy of the evidence will be obtained by the other party and the judge. If a hearing is held in public, this means that the evidence may be known to the public (including online viewers). Parties should exercise caution when submitting evidence and try to avoid evidence containing confidential information.
In China, representative proceedings are a system in which certain members represent all plaintiff members in legal proceedings. China has established a set of complete and effective rules for representative proceedings in securities disputes. We expect a gradual increase in the number of representative court cases in China, especially in the securities field.
In China, representative proceedings are a system in which certain members represent all plaintiff members in legal proceedings. The court’s judgment will be legally binding on all represented members. There have been few representative court cases in China due to the lack of detailed legal provisions and other reasons. China has established a set of complete and effective rules for representative proceedings in securities disputes.
In 1991, China announced the CPL, giving rise to China’s representative dispute resolution system. The number of representative court cases in China has remained very small for a long time. In 2019, China revised its Securities Law and introduced new regulations on representative proceedings in the securities field.
In June 2011, an oil spill accident occurred at ConocoPhillips’ Penglai 19-3 oil field in the Bohai Sea. Many farmers living near the polluted marine area have filed a lawsuit against Conoco Phillips. Ultimately, the case was considered individually, based on the applications submitted by each farmer. In 2019, China revised its Securities Act and introduced new regulations on representative disputes.
China has established a set of complete and effective rules for representative proceedings in securities disputes. The basic procedures for initiating representative proceedings include three stages: Investors file a lawsuit in accordance with the law; the scope and representative(s) of the plaintiff are usually also certain at the time the case is brought. A simple representative dispute refers to a dispute in which the investor protection institution does not act as a representative.
The Ordinary Representative is appointed in accordance with the following procedures. If no representatives are proposed in the claim, the court organizes elections by voting from among the plaintiff’s members who voluntarily choose to act as representatives. The principle of “One person, one vote” is adopted in elections, and the number of votes obtained by each representative cannot be less than 50% of the number of voters.
The Shanghai Financial Court has accepted a lawsuit filed jointly by 34 plaintiffs, including Wei Feng, against Shanghai Feilo Acoustics Co., Ltd. in connection with a securities dispute arising from false statements. The attorney may amend or waive the claim for compensation, accept the claim or enter into a settlement with the defendant only with the consent of the parties.
On August 18, 2020, the Shanghai Financial Court accepted a lawsuit filed jointly by 34 plaintiffs against Shanghai Feilo Acoustics Co. Ltd. Public interest litigation has certain peculiarities in terms of judicial procedures. Chinese law also requires the court to intervene more proactively in the dispute and provide certain assistance and guidance to the plaintiff.
In 2012, China revised the CPL, providing that authorities and relevant organizations can bring legal action against environmental pollution, violation of consumer rights and interests, and other actions contrary to the public interest. In China, pending public interest litigation does not influence an infringer to lawfully bring a private interest lawsuit.
If the findings of a public interest litigation are favorable to the plaintiff, the plaintiff may seek direct application of those findings. A plaintiff in a private interest action may benefit from the findings. The term “social organizations” mainly refers to social organizations, foundations and social welfare agencies etc. registered with the civil affairs department.
The main responsibility of prosecutors’ offices in China is to initiate criminal proceedings in criminal cases. There is no explicit provision in Chinese law yet for social organizations to bring other types of public interest proceedings. Chinese law classifies acts that harm the name, image, reputation and honor of heroes and martyrs as acts that violate the public interest.
Chinese law requires the court to be more proactive in public interest disputes to maximize the intended effect of such a dispute. In most cases of private interest disputes, Chinese courts will not take the initiative to investigate and collect evidence. Chinese courts generally follow the principle of “no trial without complaint” and will not inform the plaintiff of the type of claims he should make.
In China, some defendants, upon learning that they have been sued, will use various methods to transfer and/or conceal their assets or the subject matter of the dispute. To solve this problem, the plaintiff can apply to the Chinese court for a freezing order. Chinese courts will take protective measures such as sequestration, seizure and/or freezing, depending on the type of property.
Many Chinese courts will first consider the application for freezing property and take protective measures. If the court agrees to secure the property, the parties undertake to file a lawsuit within 30 days. In practice, it is quite difficult to apply for pre-trial property protection. The validity period of property security depends on the type of property to be secured.
Most banks in China are now connected to the online law enforcement inquiry and inspection system. If the defendant, contrary to the court’s decision to secure property, hides, transfers, sells or damages property intended for security, the court may impose a fine on the defendant.
Observance of a legal act is a mandatory measure of the court aimed at ordering a party to perform or refrain from performing certain actions in order to avoid harm to the other party. China introduced a legal act protection system when changing the copyright law, trademark law and patent law in 2001–2002. It is not uncommon for a defendant to transfer and/or hide his property in China.
China introduced the retention system when it amended the copyright law, trademark law and patent law in 2001–2002. Compliance with the statute often requires the defendant to immediately cease production, sales and other business activities, which has essentially the same effect as enforcing the law with an effective judgment. In recent years, most of the leading legal protection cases before Chinese courts also concern areas related to intellectual property.
Chinese courts are likely to consider applications for securing records submitted by parties to other types of cases based on the above provisions. The consequences of breaching a Property Preservation Order are the same as those of breaching a Property Preservation Order. Chinese courts also seem to be very careful when issuing appropriate rulings.
In China, if the losing party does not take the initiative to enforce an effective court judgment, arbitration award and other legal documents, the winning party may apply to the court for enforcement. The term “enforcement” refers to an action by the court to compel the party subject to enforcement to perform its obligations under applicable legal documents.
The term “enforcement” refers to an action by the court to compel the party subject to enforcement to perform its obligations under applicable legal documents. In China, enforcement power rests solely with the court. The deadline for filing an enforcement petition (called the “statute of limitations for enforcement petition” in Chinese law) is two years after the expiration of the enforcement deadline.
China has witnessed a surge in civil and commercial disputes. Between 2013 and 2015, a total of 10,132,200 enforcement cases were filed with Chinese courts. The total number of enforcement staff in Chinese courts during the same period was only about 38,000 people. Chinese courts have conducted real estate investigations in 57.46 million cases through the online law enforcement inquiry and inspection system.
As of September 2018, Chinese courts had frozen a total of RMB 299.2 billion through the online enforcement inquiry and inspection system. Many courts have also established regional inquiry and review systems covering government departments under their jurisdiction. Currently, there are seven online judicial auction platforms, among which Taobao and JD.com are more influential.
As of October 2018, Chinese courts have conducted over 747,000 online auctions. More than 221,000 auction items were sold in online auctions, with a turnover of approximately RMB 503 billion and a contribution rate of 66%. On July 13, 2018, the Chief People’s Court of Hengnan County, Hunan Province completed the online judicial auction of the expressway tolling right, and the final transaction price was RMB 10.624 billion.
If the party subject to enforcement fails to perform its obligations in accordance with the judicial enforcement order, the Chinese court may restrict its unnecessary consumption. The term “fraudulent judgment debtor” refers to those who have the opportunity to enforce the judgment but are unwilling to do so. From 2016 to September 2018, Chinese courts detained a total of 380,000 debtors who committed unfair judgments.
In 1987, China joined the New York Convention, which is the main basis for the recognition and enforcement of foreign arbitral awards by Chinese courts. From 2016 to September 2018, Chinese courts detained a total of 380,000 personal debtors of unfair judgments and found 14,647 debtors of unfair judgments guilty of the crime of refusing to comply with judgments.
The deadline for filing an application for recognition and enforcement of foreign arbitral awards is the same as the general limitation period for applications for enforcement. Most Chinese courts charge a fee of CNY 400-500, which is quite affordable for the applicant. The parties may also request the court to secure assets and request early seizure of the convicted debtor’s assets.
Chinese courts can only determine the existence of mutual relations between China and a foreign country if that foreign country has previously recognized and enforced a Chinese ruling. Such a stringent requirement prevents the recognition and enforcement of judgments from many foreign countries in China. SPC published the Summary of the 2022 Conference, which significantly relaxed the criteria for establishing mutual relations.
Chinese courts have always encouraged parties to resolve disputes through settlement and/or judicial mediation. In China, settlement means that the parties resolve their disputes themselves through negotiations. Mediation, unlike a settlement, is generally conducted under the auspices of a court.
There is no need for intervention or any method other than going through many different types of women. There are many ways to express yourself, from the most basic to the most sophisticated. There is no reason why you shouldn’t be able to reach a woman’s breasts or even a man’s buttocks.
A settlement signed under the auspices of a mediation organization is also not legally enforceable. The parties must jointly apply to the court within 30 days of signing the settlement. Some dishonest parties may record the settlement and negotiation process and claim that the purpose of the negotiations is not to reach a settlement.
Chinese law states that unless the parties agree otherwise, the mediation process and the settlement agreement reached will not be made public. The parties may black out confidential content or remove non-confidential content from documents submitted to the court or the other party in the mediation or settlement process.
Source: “I Win in Chinese Courts” is an open access publication. The use of generic descriptive names, registered names, trademarks, service marks, etc. in this publication does not mean that these names are exempt from applicable protective laws and regulations. The publisher, authors and editors can safely assume that the advice and information contained in this book is believed to be true and accurate as of the date of publication.
