Civil
Procedure Law of the People's Republic of China
NPC.gov.cn
(Adopted at the Fourth Session of the
Seventh National People's Congress and promulgated by Order No. 44 of the
President of the People's Republic of China on April 9, 1991)
Contents
Part
One General
Provisions
Chapter I The Aim, Scope of Application and Basic Principles
Chapter II
Jurisdiction
Section
1 Jurisdiction by Forum Level
Section
2 Territorial Jurisdiction
Section
3 Transfer and Designation of Jurisdiction
Chapter III
Trial Organization
Chapter IV
Withdrawal
Chapter V
Participants in Proceedings
Section
1 Parties
Section
2 Agents ad Liter
Chapter VI
Evidence
Chapter VII Time
Periods and Service
Section
1 Time Periods
Section
2 Service
Chapter VIII
Conciliation
Chapter IX
Property Preservation and Advance Execution
Chapter X
Compulsory Measures Against Obstruction of Civil
Proceedings
Chapter XI
Litigation Costs
Part
Two Trial
Procedure
Chapter XII
Ordinary Procedure of First Instance
Section
1 Bringing a Lawsuit and Entertaining a Case
Section
2 Preparations for Trial
Section
3 Trial in Court
Section
4 Suspension and Termination of Litigation
Section
5 Judgment and Order
Chapter XIII
Summary Procedure
Chapter XIV
Procedure of Second Instance
Chapter XV
Special Procedure
Section
1 General Provisions
Section
2 Cases Concerning the Qualification of Voters
Section 3 Cases
Concerning the Proclamation of a Person as Missing or Dead
Section 4 Cases
Concerning the Determination of Legal Incapacity or Restricted Legal Capacity
of Citizens
Section 5 Cases
Concerning the Determination of a Property as Ownerless
Chapter XVI
Procedure for Trial Supervision
Chapter XVII Summary Procedure
for Hastening Recovery of a Debt
Chapter XVIII Procedure for
Publicizing Public Notice for Assertion of Claims
Chapter XIX Bankruptcy and Debt
Repayment Proceedings for Legal Person Enterprises
Part
Three Procedure
of Execution
Chapter XX
General Stipulations
Chapter XXI
Application for Execution and Referral
Chapter XXII
Execution Measures
Chapter XXIII
Suspension and Termination of Execution
Part
Four Special
Provisions for Civil Proceedings of Cases Involving Foreign Element
Chapter XXIV
General Principles
Chapter XXV
Jurisdiction
Chapter XXVI
Service and Time Periods
Chapter XXVII
Property Preservation
Chapter XXVIII
Arbitration
Chapter XXIX
Judicial Assistance
Part
One General Provisions
Chapter
I The Aim, Scope of Application and Basic Principles
Article 1 The
Civil Procedure Law of the People's Republic of China is formulated on the
basis of the Constitution and in the light of the experience and actual
conditions of our country in the trial of civil cases.
Article 2 The
Civil Procedure Law of the People’s Republic of China aims to protect the
exercise of the litigation rights of the parties and ensure the ascertaining of
facts by the people's courts, distinguish right from wrong, apply the law
correctly, try civil cases promptly, affirm civil rights and obligations,
impose sanctions for civil wrongs, protect the lawful rights and interests of
the parties, educate citizens to voluntarily abide by the law, maintain the
social and economic order, and guarantee the smooth progress of the socialist
construction.
Article 3 In
dealing with civil litigation arising from disputes on property and personal
relations between citizens, legal persons or other organizations and between
the three of them, the peoples' courts shall apply the provisions of this Law.
Article 4 Whoever
engages in civil litigation within the territory of the People's Republic of
China must abide by this Law.
Article 5
Aliens, stateless persons, foreign enterprises and organizations that bring
suits or enter appearance in the people's courts shall have the same litigation
rights and obligations as citizens, legal persons and other organizations of
the People's Republic of China.
If
the courts of a foreign country impose restrictions on the civil litigation
rights of the citizens, legal persons and other organizations of the People’s
Republic of China, the people's courts of the People's Republic of China shall
follow the principle of reciprocity regarding the civil litigation rights of
the citizens, enterprises and organizations of that foreign country.
Article 6 The
people's courts shall exercise judicial powers with respect to civil cases.
The
people's courts shall try civil cases independently in accordance with the law,
and shall be subject to no interference by any administrative organ, public
organization or individual.
Article 7 In
trying civil cases, the people's courts must base themselves on facts and take
the law as the criterion.
Article 8 The
parties in civil litigation shall have equal litigation rights. The people's
courts shall, in conducting the trials, safeguard their rights, facilitate
their exercising the rights, and apply the law equally to them.
Article 9 In
trying civil cases, the people's courts shall conduct conciliation for the
parties on a voluntary and lawful basis; if conciliation fails, judgments shall
be rendered without delay.
Article 10 In
trying civil cases, the people's courts shall, according to the provisions of
the law, follow the systems of panel hearing, withdrawal, public trial and the
court of second instance being that of last instance.
Article 11
Citizens of all nationalities shall have the right to use their native spoken
and written languages in civil proceedings.
Where
minority nationalities live in aggregation in a community or where several
nationalities live together in one area, the people's courts shall conduct
hearings and issue legal documents in the spoken and written languages commonly
used by the local nationalities.
The
people's courts shall provide translations for any participant in the
proceedings who is not familiar with the spoken or written languages commonly
used by the local nationalities.
Article 12 Parties
to civil actions are entitled in the trials by the people's courts to argue for
themselves.
Article 13 The
parties are free to deal with their own civil rights and litigation rights the
way they prefer within the scope provided by the law.
Article 14 The
people's procuratorates shall have the right to
exercise legal supervision over civil proceedings.
Article 15 Where
an act has infringed upon the civil rights and interests of the State, a
collective organization or an individual, any State organ, public organization,
enterprise or institution may support the injured unit or individual to bring
an action in a people's court.
Article 16 The
people's conciliation committees shall be mass organizations to conduct
conciliation of civil disputes under the guidance of the grass-roots level
people's governments and the basic level people's courts.
The
people's conciliation committee shall conduct conciliation for the parties
according to the Law and on a voluntary basis. The parties concerned shall
carry out the settlement agreement reached through conciliation; those who
decline conciliation or those for whom conciliation has failed or those who
have backed out of the settlement agreement may institute legal proceedings in a
people's court.
If
a people's conciliation committee, in conducting conciliation of civil
disputes, acts contrary to the law, rectification shall be made by the people's
court
Article 17 The
people's congresses of the national autonomous regions may formulate, in
accordance with the Constitution and the principles of this Law, and in
conjunction with the specific circumstances of the local nationalities,
adaptive and supplementary provisions. Such provisions made by an autonomous
region shall be submitted to the Standing Committee of the National People's
Congress for approval; those made by an autonomous prefecture or autonomous
county shall be submitted to the standing committee of the people's congress of
the relevant province or autonomous region for approval and to the Standing
Committee of the National People's Congress for the record.
Chapter
II Jurisdiction
Section
1 Jurisdiction
by Forum Level
Article 18 The
basic people's courts shall have jurisdiction as courts of first instance over
civil cases, unless otherwise provided in this Law.
Article 19 The
intermediate people's courts shall have jurisdiction as courts of first
instance over the following civil cases:
(1)
major cases involving foreign element;
(2)
cases that have major impact on the area under their
jurisdiction; and
(3)
cases as determined by the Supreme People's Court to
be under the jurisdiction of the intermediate people's courts.
Article 20 The
high people's courts shall have jurisdiction as courts of first instance over
civil cases that have major impact on the areas under their jurisdiction.
Article 21 The
Supreme People's Court shall have jurisdiction as the court of first instance
over the following civil cases:
(1)
cases that have major impact on the whole country; and
(2)
cases that the Supreme People's Court deems it should
try.
Section
2 Territorial Jurisdiction
Article 22 A
civil lawsuit brought against a citizen shall be under
the jurisdiction of the people's court of the place where the defendant has his
domicile; if the place of the defendant's domicile is different from that of
his habitual residence, the lawsuit shall be under the jurisdiction of the
people's court of the place of his habitual residence.
A
civil lawsuit brought against a legal person or any other organization shall be
under the jurisdiction of the people's court of the place where the defendant
has his domicile.
Where
the domiciles or habitual residences of several defendants in the same lawsuit
are in the areas under the jurisdiction of two or more people's courts, all of
those people's courts shall have jurisdiction over the lawsuit.
Article 23 The
civil lawsuits described below shall be under the jurisdiction of the people's
court of the place where the plaintiff has his domicile; if the place of the
plaintiff’s domicile is different from that of his habitual residence, the
lawsuit shall be under the jurisdiction of the people's court of the place of
the plaintiff's habitual residence:
(1)
those concerning personal status brought against
persons not residing within the territory of the People's Republic of China;
(2)
those concerning the personal status of persons whose
whereabouts are unknown or who have been declared as missing.
(3)
those brought against persons who are undergoing
rehabilitation through labour; and
(4)
those brought against persons who are in imprisonment.
Article 24 A lawsuit brought on a contract dispute shall be under the
jurisdiction of the people's court of the place where the defendant has his
domicile or where the contract is performed.
Article 25 The
parties to a contract may agree to choose in their written contract the
people's court of the place where the defendant has his domicile, where the
contract is performed, where the contract is signed, where the plaintiff has
his domicile or where the object of the action is located to exercise
jurisdiction over the case, provided that the provisions of this Law regarding
jurisdiction by forum level and exclusive jurisdiction are not violated.
Article 26 A lawsuit brought on an insurance contract dispute shall be
under the jurisdiction of the people's court of the place where the defendant
has his domicile or where the insured object is located.
Article 27 A lawsuit brought on a bill dispute shall be under the
jurisdiction of the people's court of the place where the bill is to be paid or
where the defendant has his domicile.
Article 28 A lawsuit arising from a dispute over a railway, road, water,
or air transport contract or over a combined transport contract shall be under
the jurisdiction of the people's court of the place of dispatch or the place of
destination or where the defendant has his domicile.
Article 29 A lawsuit brought on a tortious act shall be under the
jurisdiction of the people's court of the place where the tort is committed or
where the defendant has his domicile.
Article 30 A
lawsuit brought on claims for damages caused by a railway, road, water
transport or air accident shall be under the jurisdiction of the people's court
of the place where the accident occurred or where the vehicle or ship first
arrived after the accident or where the aircraft first landed after the
accident, or where the defendant has his domicile.
Article 31 A
lawsuit brought on claims for damages caused by a collision at sea or by any
other maritime accident shall be under the jurisdiction of the people's court
of the place where the collision occurred or where the ship in collision first
docked after the accident or where the ship at fault was detained, or where the
defendant has his domicile.
Article 32 A lawsuit instituted for expenses of maritime salvage shall be
under the jurisdiction of the people's court of the place where the salvage
took place or where the salvaged ship first docked after the disaster.
Article 33 A lawsuit brought for general average shall be under the
jurisdiction of the people's court of the place where the ship first docked or
where the adjustment of general average was conducted or where the voyage
ended.
Article 34 The
following cases shall be under the exclusive jurisdiction of the people's
courts herein specified:
(1)
a lawsuit brought on a dispute over real estate shall
be under the jurisdiction of the people's court of the place where the estate
is located;
(2)
a lawsuit brought on a dispute over harbour operations shall be under the jurisdiction of the
people's court of the place where the harbour is
located; and
(3)
a lawsuit brought on a dispute over succession shall
be under the jurisdiction of the people's court of the place where the decedent
had his domicile upon his death, or where the principal part of his estate is
located.
Article 35 When
two or more people's courts have jurisdiction over a lawsuit, the plaintiff may
bring his lawsuit in one of these people's courts; if the plaintiff brings the
lawsuit in two or more people's courts that have jurisdiction over the lawsuit,
the people's court in which the case was first entertained shall have
jurisdiction.
Section
3 Transfer and Designation of Jurisdiction
Article 36 If a
people's court finds that a case it has entertained is not under its
jurisdiction, it shall refer the case to the people's court that has
jurisdiction over the case. The people's court to which a case has been
referred shall entertain the case, and if it considers that, according to the
relevant regulations, the case referred to it is not under its jurisdiction, it
shall report to a superior people's court for the designation of jurisdiction
and shall not independently refer the case again to another people's court.
Article 37 If a
people's court which has jurisdiction over a case is unable to exercise the
jurisdiction for special reasons, a superior people's court shall designate
another court to exercise jurisdiction.
In
the event of a jurisdictional dispute between two or more people's courts, it
shall be resolved by the disputing parties through consultation; if the dispute
cannot be so resolved, it shall be reported to their common superior people's
court for the designation of jurisdiction.
Article 38 If a
party to an action objects to the jurisdiction of a people's court after the
court has entertained the case, the party must raise the objection within the
period prescribed for the submission of defence. The
people's court shall examine the objection. If the objection is established,
the people's court shall order the case to be transferred to the people's court
that has jurisdiction over it; if not, the people's court shall reject it.
Article 39 The
people’s courts at higher levels shall have the power to try civil cases over
which the people's courts at lower levels have jurisdiction as courts of first
instance; they may also transfer civil cases over which they themselves have
jurisdiction as courts of first instance to people's courts at lower levels for
trial.
If
a people's court at a lower level that has jurisdiction over a civil case as
court of first instance deems it necessary to have the case to be tried by a
people's court at a higher level, it may submit it to and request the people's
court at a higher level to try the case.
Chapter
III Trial Organization
Article 40 The
people's court of first instance shall try civil cases by a collegial panel
composed of both judges and judicial assessors or of judges alone. The
collegial panel must have an odd number of members.
Civil
cases in which summary procedure is followed shall be tried by a single judge
alone.
When
performing their duties, the judicial assessors shall have equal rights and
obligations as the judges.
Article 41 The
people's court of second instance shall try civil cases by a collegial panel of
judges. The collegial panel must have an odd number of members.
For
the retrial of a remanded case, the people's court of first instance shall form
a new collegial panel in accordance with the procedure of first instance.
If
a case for retrial was originally tried at first instance, a new collegial
panel shall be formed according to the procedure of first instance; if the case
was originally tried at second instance or was brought by a people's court at a
higher level to it for trial, a new collegial panel shall be formed according
to the procedure of second instance.
Article 42 The
president of the court or the chief judge of a division of the court shall
designate a judge to serve as the presiding judge of the collegial panel; if
the president or the chief judge participates in the trial, he himself shall
serve as the presiding judge.
Article 43 When
deliberating a case, a collegial panel shall observe the rule of majority. The
deliberations shall be recorded in writing, and the transcript shall be signed
by the members of the collegial panel. Dissenting opinions in the deliberations
must be truthfully entered in the transcript.
Article 44 The
judicial officers shall deal with all cases impartially and in accordance with
the law.
The
judicial officers shall not accept any treat or gift from the parties or their agents ad litem.
Any
judicial officer who commits embezzlement, accepts bribes, engages in
malpractice for personal benefits or who perverts the law in passing judgment
shall be investigated for legal responsibility; if the act constitutes a crime,
the offender shall be investigated for criminal responsibility according to the
law. Chapter IV Withdrawal
Article 45 A
judicial officer shall of himself withdraw from the
case, and the parties thereto shall be entitled to apply orally or in writing
for his withdrawal in any of the following circumstances:
(1)
he being a party to the case or a near relative of a
party or an agent ad litem in the case;
(2)
he being an interested party in the case; or
(3)
he having some other kind of relationship with a party
to the case, which might affect the impartiality of the trial.
The
above provisions shall also apply to clerks, interpreters, expert witnesses and
inspection personnel.
Article 46 In
applying for the withdrawal, the party shall state the reason and submit the
application at the beginning of the proceedings; the application may also be
submitted before the closing of arguments in court if the reason for the
withdrawal is known to him only after the proceedings begin.
Pending
a decision by the people’s court regarding the withdrawal applied for, the
judicial officer concerned shall temporarily suspend his participation in the
proceedings, with the exception, however, of cases that require the taking of
emergency measures.
Article 47 The
withdrawal of the presiding judge who is president of the court shall be
decided by the judicial committee; the withdrawal of judicial officers shall be
decided by the court president; and the withdrawal of other personnel by the
presiding judge.
Article 48 The
decision of a people's court on an application made by any party for withdrawal
shall be made orally or in writing within three days after the application was
made. If the applicant is not satisfied with the decision, he may apply for
reconsideration which could be granted only once. During the period of
reconsideration, the person whose withdrawal has been applied for shall not
suspend his participation in the proceedings. The decision of a people's court
on the reconsideration shall be made within three days after receiving the
application and the applicant shall be notified of it accordingly.
Chapter
V Participants in Proceedings
Section
1 Parties
Article 49 Any
citizen, legal person and any other organization may become a party to a civil
action.
Legal
persons shall be represented by their legal representatives in the litigation.
Other organizations shall be represented by their principal heads in the proceedings.
Article 50
Parties to an action shall have the right to appoint agents, apply for
withdrawals, collect and provide evidence, proffer arguments, request
conciliation, file an appeal and apply for execution.
Parties
to an action may have access to materials pertaining to the case and make
copies thereof and other legal documents pertaining to the case. The scope of
and rules for consulting and making copies of them shall be specified by the
Supreme People's Court.
Parties
to an action must exercise their litigation rights in accordance with the law,
observe the procedures and carry out legally effective written judgments or
orders and conciliation statements.
Article 51 The
two parties may reach a compromise of their own accord.
Article 52 The
plaintiff may relinquish or modify his claims. The defendant may admit or rebut
the claims and shall have the right to file counterclaims.
Article 53 When
one party or both parties consist of two or more than two persons, their object
of action being the same or of the same category and the people's court
considers that, with the consent of the parties, the action can be tried
combined, it is a joint action.
If
a party of two or more persons to a joint action have common rights and
obligations with respect to the object of action and the act of any one of them
is recognized by the others of the party, such an act shall be valid for all
the rest of the party; if a party of two or more persons have no common rights
and obligations with respect to the object of action, the act of any one of
them shall not be valid for the rest.
Article 54 If
the persons comprising a party to a joint action is
large in number, the party may elect representatives from among themselves to
act for them in the litigation. The acts of such representatives in the
litigation shall be valid for the party they represent. However, modification
or waiver of claims or admission of the claims of the other party or pursuing a
compromise with the other party by the representatives shall be subject to the
consent of the party they represent.
Article 55 Where
the object of action is of the same category and the persons comprising one of
the parties is large but uncertain in number at the commencement of the action,
the people's court may issue a public notice, stating the particulars and
claims of the case and informing those entitled to participate in the action to
register their rights with the people's court within a fixed period of time.
Those
who have registered their rights with the people's court may elect
representatives from among themselves to proceed with the litigation; if the
election fails its purpose, such representatives may be determined by the
people's court through consultation with those who have registered their rights
with the court.
The
acts of such representatives in the litigation shall be valid for the party
they represent; however, modification or waiver of claims or admission of the
claims of the other party or pursuing a compromise with the other party by the
representatives shall be subject to the consent of the party they represent.
The
judgments or written orders rendered by the people's court shall be valid for
all those who have registered their rights with the court. Such judgments or
written orders shall apply to those who have not registered their rights but
have instituted legal proceedings during period of limitation of the action.
Article 56 If a
third party considers that he has an independent claim to the object of action
of both parties, he shall have the right to bring an
action.
Where
the outcome of the case will affect a third party's legal interest, such party,
though having no independent claim to the object of action of both parties, may
file a request to participate in the proceedings or the people's court shall
notify the third party to participate. A third party that is to bear civil
liability in accordance with the judgment of the people's court shall be
entitled to the rights and obligations of a party in litigation.
Section
2 Agents ad Litem
Article 57 Any
person with no legal capacity to engage in litigation shall have his guardian
or guardians as statutory agents to act for him in a lawsuit. If the statutory
agents try to shift responsibility as agents ad litem
upon one another, the people's court shall appoint one of them to represent the
person in litigation.
Article 58 A party to an action, or statutory agent may appoint one or
two persons to act as his agents ad litem.
A
lawyer, a near relative of the party, a person recommended by a relevant social
organization or a unit to which the party belongs or any other citizen approved
by the people's court may be appointed as the party's agent ad litem.
Article 59 When
a person appoints another to act on his behalf in litigation, he must submit to
the people's court a power of attorney bearing his signature or seal.
The
power of attorney must specify the matters entrusted and the powers conferred.
An agent ad litem must obtain special powers from his principal to admit, waive
or modify claims, or to compromise or to file a counterclaim or an appeal.
A
power of attorney mailed or delivered through others by a citizen of the
People's Republic of China residing abroad must be certified by the Chinese
embassy or consulate accredited to that country. If there is no Chinese embassy
or consulate in that country, the power of attorney must be certified by an
embassy or a consulate of a third country accredited to that country that has
diplomatic relations with the People's Republic of China, and then transmitted
for authentication to the embassy or consulate of the People's Republic of
China accredited to that third country, or it must be certified by a local
patriotic overseas Chinese organization.
Article 60 A party to an action shall inform the people's court in
writing if he changes or revokes the powers of an agent ad litem, and the court
shall notify the other party of the change or revocation.
Article 61 A lawyer who serves as an agent ad litem and other agents ad
litem shall have the right to investigate and collect evidence, and may have
access to materials pertaining to the case. The scope of and rules for
consulting materials pertaining to the case shall be specified by the Supreme
People's Court.
Article 62 In a
divorce case in which the parties to the action have been represented by their agents ad litem, the parties themselves shall still appear
in court in person, unless they are incapable of expressing their own will. A
party who is truly unable to appear in court due to a special reason shall
submit his views in writing to the people's court.
Chapter
VI Evidence
Article 63
Evidence shall be classified as follows:
(1)
documentary evidence;
(2)
material evidence;
(3)
audio-visual material;
(4)
testimony of witnesses;
(5)
statements of the parties;
(6)
expert conclusions; and
(7)
records of inspection.
The
above-mentioned evidence must be verified before it can be taken as a basis for
ascertaining a fact.
Article 64 It
is the duty of a party to an action to provide evidence in support of his
allegations.
If,
for objective reasons, a party and his agent ad litem are unable to collect the
evidence by themselves or if the people's court
considers the evidence necessary for the trial of the case, the people's court
shall investigate and collect it.
The
people's court shall, in accordance with the procedure prescribed by the law,
examine and verify evidence comprehensively and objectively.
Article 65 The
people's court shall have the right to make investigation and collect evidence
from the relevant units or individuals; such units or individuals may not
refuse to provide information and evidence.
The
people's court shall verify the authenticity, examine and determine the
validity of the certifying documents provided by the relevant units or
individuals.
Article 66 Evidence
shall be presented in court and cross-examined by the parties concerned. But
evidence that involves State secrets, trade secrets and personal privacy shall
be kept confidential. If it needs to be presented in court, such evidence shall
not be presented in an open court session.
Article 67 The
people's court shall take the acts, facts and documents legalized by
notarization according to legal procedures as the basis for ascertaining facts,
unless there is evidence to the contrary sufficient to invalidate the
notarization.
Article 68 Any
document submitted as evidence must be the original. Material evidence must
also be original. If it is truly difficult to present the original document or
thing, then reproductions, photographs, duplicates or extracts of the original
may be submitted.
If
a document in a foreign language is submitted as evidence, a Chinese
translation must be appended.
Article 69 The
people's court shall verify audio-visual materials and determine after their
examination in the light of other evidence in the case whether they can be
taken as a basis for ascertaining the facts.
Article 70 All
units and individuals who have knowledge of a case shall be under the
obligation of giving testimony in court. Responsible heads of the relevant
units shall support the witnesses to give testimony. When it is truly difficult
for a witness to appear in court, he may, with the consent of the people's
court, submit a written testimony.
Any
person who is incapable of expressing his will properly shall not give
testimony.
Article 71 The
people's court shall examine the statements of the parties concerned in the
light of other evidence in the case to determine whether the statements can be
taken as a basis for ascertaining the facts.
The
refusal of a party to make statements shall not prevent the people's court from
ascertaining the facts of a case on the basis of other evidence.
Article 72 When
the people's court deems it necessary to make an expert evaluation of a problem
of a technical nature, it shall refer the problem to a department authorized by
the law for the evaluation. In the absence of such a department, the people's
court shall appoint one to make the expert evaluation.
The
authorized department and the experts designated by the department shall have
the right to consult the case materials necessary for the evaluation and
question the parties and witnesses when circumstances so require.
The
authorized department and the experts it designated shall present a written
conclusion of the evaluation duly sealed or signed by both. If the evaluation
is made by an expert alone, the unit to which the expert belongs shall certify
his status by affixing its seal to the expert's conclusion.
Article 73 When
inspecting material evidence or a site, the inspector must produce his
credentials issued by a people's court. He shall request the local grass-roots
organization or the unit to which the party to the action belongs to send
persons to participate in the inspection. The party concerned or an adult
member of his family shall be present; their refusal to appear on the scene,
however, shall not hinder the inspection.
Upon
notification by the people's court, the relevant units and individuals shall be
under the obligation of preserving the site and assisting the inspection.
The
inspector shall make a written record of the circumstances and results of the
inspection, which shall be duly signed or sealed by the inspector, the party
concerned and the participants requested to be present.
Article 74
Under circumstances where there is a likelihood that
evidence may be destroyed or lost, or difficult to obtain later, the
participants in the proceedings may apply to the people's court for
preservation of the evidence. The people's court may also on its own initiative
take measures to preserve such evidence.
Chapter
VII Time Periods and Service
Section
1 Time Periods
Article 75 Time
periods shall include those prescribed by the law and those designated by a
people's court.
Time
periods shall be calculated by the hour, the day, the month and the year. The
hour and day from which a time period begins shall not be counted as within the
time period.
If
the expiration date of a time period falls on a holiday, then the day
immediately following the holiday shall be regarded as the expiration date.
A
time period shall not include travelling time. A litigation document that is
mailed before the deadline shall not be regarded as overdue.
Article 76 In
case of failure on the part of a party to an action to meet a deadline due to
force majeure or for other justified reasons, the party concerned may apply for
an extension of the time limit within 10 days after the obstacle is removed.
The extension applied for shall be subject to approval by a people's court.
Section
2 Service
Article 77 A receipt shall be required for every litigation document that
is served and it shall bear the date of receipt noted by the signature or seal
of the person on whom the document was served.
The
date noted on the receipt by the person on whom the document was served shall
be regarded as the date of service of the document.
Article 78 Litigation
documents shall be sent or delivered directly to the person on whom they are to
be served. If that person is a citizen, the documents shall, in case of his
absence, be receipted by an adult member of his family living with him. If the
person on whom they are to be served is a legal person or any other
organization, the documents shall be receipted by the legal representatives of
the legal person or the principal heads of the other organization or anyone of
the legal person or the other organization responsible for receiving such
documents; if the person on whom they are to be served has an agent ad litem,
the documents may be receipted by the agent ad litem; if the person on whom
they are to be served has designated a person to receive litigation documents
on his behalf and has informed the people's court of it, the documents may be
receipted by the person designated.
The
date put down in the receipt and signed by the adult family member living with
the person or whom the litigation documents are to be served, or by the person
responsible for receiving documents of a legal person or any other
organization, or by the agent ad litem , or the person
designated to receive documents shall be deemed the date of service of the
documents.
Article 79 If
the person on whom the litigation documents are to be served or the adult
family member living with him refuses to receive the documents, the person
serving the documents shall ask representatives from the relevant grass-roots
organization or the unit to which the person on whom the documents are to be
served belongs to appear on the scene, explain the situation to them, and
record on the receipt the reasons of the refusal and the date of it. After the
person serving the documents and the witnesses have affixed their signatures or
seals to the receipt, the documents shall be left at the place where the person
on whom they are to be served lives and the service shall be deemed completed.
Article 80 If
direct service proves to be difficult, service of litigation documents may be
entrusted to another people's court, or done by mail. If the documents are
served by mail, the date stated on the receipt for postal delivery shall be
deemed the date of service of the documents.
Article 81 If
the person on whom the litigation documents are to be served is a serviceman,
the documents shall be forwarded to him through the political organ of the unit
at or above the regimental level in the force to which he belongs.
Article 82 If
the person on whom the litigation documents are to be served is in
imprisonment, the documents shall be forwarded to him through the prison
authorities or the unit of reform through labour
where the person is serving his term.
If
the person on whom the litigation documents are to be served is undergoing
rehabilitation through labour, the documents shall be
forwarded to him through the unit of his rehabilitation through labour.
Article 83 The
organization or unit that receives the litigation documents to be forwarded
must immediately deliver them to and have them receipted by the person on whom
they are to be served. The date stated on the receipt shall be deemed the date of
service of the documents.
Article 84 If
the whereabouts of the person on whom the litigation documents are to be served
is unknown, or if the documents cannot be served by the other methods specified
in this Section, the documents shall be served by public announcement. Sixty
days after the public announcement is made, the documents shall be deemed to
have been served.
The
reasons for service by public announcement and the process gone through shall
be recorded in the case files.
Chapter
VIII Conciliation
Article 85 In
the trial of civil cases, the people's court shall distinguish between right
and wrong on the basis of the facts being clear and conduct conciliation
between the parties on a voluntary basis.
Article 86 When a
people's court conducts conciliation, a single judge or a collegial panel may
preside over it. Conciliation shall be conducted on the spot as much as
possible.
When
a people's court conducts conciliation, it may employ simplified methods to
notify the parties concerned and the witnesses to appear in court.
Article 87 When
a people's court conducts conciliation, it may invite the units or individuals
concerned to come to its assistance. The units or individuals invited shall
assist the people's court in conciliation.
Article 88 A
settlement agreement reached between the two parties
through conciliation must be of their own free will and without compulsion. The
content of the settlement agreement shall not contravene the law.
Article 89 When
a settlement agreement through conciliation is reached, the people's court
shall draw up a conciliation statement. The conciliation statement shall
clearly set forth the claims, the facts of the case, and the result of the
conciliation.
The
conciliation statement shall be signed by the judge and the court clerk, sealed
by the people's court, and served on both parties.
Once
it is receipted by the two parties concerned, the conciliation statement shall
become legally effective.
Article 90 The
people's court need not draw up a conciliation statement for the following
cases when a settlement agreement is reached through conciliation:
(1)
divorce cases in which both parties have become
reconciled after conciliation;
(2)
cases in which adoptive relationship has been
maintained through conciliation;
(3)
cases in which the claims can be immediately
satisfied; and
(4)
other cases that do not require a conciliation
statement.
Any
settlement agreement that needs no conciliation statement shall be entered into
the written record and shall become legally effective after being signed or
sealed by both parties concerned, by the judge and by the court clerk.
Article 91 If no
agreement is reached through conciliation or if either party backs out of the
settlement agreement before the conciliation statement is served, the people's
court shall render a judgment without delay.
Chapter
IX Property Preservation and Advance Execution
Article 92 In
the cases where the execution of a judgment may become impossible or difficult
because of the acts of either party or for other reasons, the people's court
may, at the application of the other party, order the adoption of measures for
property preservation. In the absence of such application, the people's court
may of itself, when necessary, order the adoption of
measures for property preservation.
In
adopting property preservation measures, the people's court may enjoin the
applicant to provide security; if the applicant fails to do so, his application
shall be rejected.
After
receiving an application, the people's court must, if the case is urgent, make
an order within 48 hours; if the order for the adoption of property
preservation measures is made, the execution thereof shall begin immediately.
Article 93 Any
interested party whose lawful rights and interests would, due to urgent
circumstances, suffer irretrievable damage without immediately applying for
property preservation, may, before filing a lawsuit, apply to the people's
court for the adoption of property preservation measures. The applicant must
provide security; if he fails to do so, his application shall be rejected.
After
receiving an application, the people's court must make an order within 48
hours; if the court orders the adoption of property preservation measures, the
execution thereof shall begin immediately.
If
the applicant fails to bring an action within 15 days after the people's court
has adopted the preservation measures, the people's court shall cancel the property preservation.
Article 94
Property preservation shall be limited to the scope of the claims or to the
property relevant to the case.
Property
preservation shall be effected by sealing up, distraining,
freezing or other methods as prescribed by the law.
After
the people's court has frozen the property, it shall promptly notify the person
whose property has been frozen.
The
property that has already been sealed up or frozen shall not be sealed up or
frozen for a second time.
Article 95 If the person against whom the application for property
preservation is made provides security, the people's court shall cancel the
property preservation.
Article 96 If an
application for property preservation is wrongfully made, the applicant shall
compensate the person against whom the application is made for any loss
incurred from property preservation.
Article 97 The
people's court may, upon application of the party concerned, order advance
execution in respect of the following cases:
(1)
those involving claims for alimony, support for
children or elders, pension for the disabled or the family of a decedent, or
expenses for medical care;
(2)
those involving claims for remuneration for labour; and
(3)
those involving urgent circumstances that require
advance execution.
Article 98 Cases
in which advance execution is ordered by the people's court shall meet the
following conditions:
(1)
the relationship of rights and obligations between the
parties concerned is clear and definite, and denial of advance execution would
seriously affect the livelihood or production operations of the applicant; and
(2)
the person against whom the application for advance
execution is made is capable of fulfilling his obligations.
The
people's court may enjoin the applicant to provide security; if the applicant
fails to do so, his application shall be rejected. If the applicant loses the
lawsuit, he shall compensate the person against whom the application is made
for any loss of property incurred from the advance execution.
Article 99 If the
party concerned is not satisfied with the order made on property preservation
or execution, he may apply for reconsideration which could be granted only
once. Execution of the order shall not be suspended during the time of
reconsideration.
Chapter
X Compulsory Measures Against Obstruction of Civil
Proceedings
Article 100 If a
defendant is required to appear in court, but, having been served twice with
summons, still refuses to do so without justified reason, the people's court
may constrain him to appear in court by a peremptory writ.
Article 101
Participants and other persons in the court proceedings shall abide by the
court rules.
If
a person violates the court rules, the people's court may reprimand him, or
order him to leave the courtroom, or impose a fine on or detain him.
A
person who seriously disrupts court order by making an uproar in the court or
rushing at it, or insulting, slandering, threatening, or assaulting the
judicial officers, shall be investigated for criminal responsibility by the
people's court according to the law; if the offence is a minor one, the
offender may be detained or a fine imposed on him.
Article 102 If a
participant or any other person in the proceedings commits any one of the
following acts, the people's court shall, according to the seriousness of the
act, impose a fine on him or detain him; if the act constitutes a crime, the
offender shall be investigated for criminal responsibility according to law.
(1)
forging or destroying important evidence, which would
obstruct the trial of a case by the people's court;
(2)
using violence, threats or subornation to prevent a
witness from giving testimony, or instigating, suborning, or coercing others to
commit perjury;
(3)
concealing, transferring, selling or destroying property that has been sealed
up or distrained, or property of which an inventory
has been made and which has been put under his care according to court
instruction, or transferring the property that has been frozen;
(4)
insulting, slandering, incriminating with false charges, assaulting or
maliciously retaliating against judicial officers or personnel, participants in
the proceedings, witnesses, interpreters, evaluation experts, inspectors, or
personnel assisting in execution;
(5)
using violence, threats or other means to hinder
judicial officers or personnel from performing their duties; or
(6)
refusing to carry out legally effective judgments or
orders of the people's court.
With
respect to a unit that commits any one of the acts specified above, the
people's court may impose a fine on or detain its principal heads or the person
who are held actually responsible for the act; if the act constitutes a crime,
investigations for criminal responsibility shall be made according to the law.
Article 103 Where
a unit which is under an obligation to assist in investigation and execution
commits any one of the following acts, the people's court may, apart from
enjoining it to perform its obligation, also impose a fine:
(1)
refusing or obstructing the investigation and
collection of evidence by the people's court;
(2)
refusing by banks, credit cooperatives or other units
dealing with savings deposit, after receiving a notice for assistance in
execution from the people's court, to assist in inquiring into, freezing or
transferring the relevant deposit.
(3)
refusing by the unit concerned, after receiving a notice for assistance in
execution from the people's court, to assist in withholding the income of the
party subject to execution, in going through the formalities of transferring
the relevant certificates of property rights or in transferring the relevant negotiable
instruments, certificates, or other property; or
(4)
refusing to provide other obligatory assistance in the
execution.
With
respect to a unit that commits any one of the acts specified above, the
people's court may impose a fine on its principal heads or the persons who are
held actually responsible for the act. The people's court may also put forward
a judicial proposal to the supervisory organ or any relevant organ for the
imposition of disciplinary sanctions.
Article 104 A fine on an individual shall not exceed Renminbi
1,000 yuan. A fine on a unit shall not be less than
1,000 yuan and shall not exceed 30,000 yuan.
The
period of detention shall not be longer than 15 days.
The
people's court shall deliver detained persons to a public security organ for
custody. The people's court may decide to advance the time of release, if the
detainee admits and mends his wrongdoings.
Article 105 Constrained
appearance in court, imposition of a fine or detention shall be subject to the
approval of the president of the people’s court.
A
peremptory writ shall be issued for constraining appearance in court.
A
decision in writing shall be made for the imposition of a fine or detention.
The offender, if dissatisfied with the decision, may apply to a people's court
at a higher level for reconsideration which could be granted only once. The
execution of the decision shall not be suspended during the time of
reconsideration.
Article 106
Decision on the adoption of compulsory measures against obstruction of proceedings
shall be made only by the people's court. Any unit or individual that extorts
repayment of a debt by illegal detention of a person or illegal distrainment of
property shall be investigated for criminal responsibility according to the
law, or shall be punished with detention or a fine.
Chapter
XI Litigation Costs
Article 107 Any
party filing a civil lawsuit shall pay court costs according to the rules. For
property cases, the party shall pay other fees in addition to the court costs.
Any
party that has genuine difficulty in paying litigation costs may, according to
the relevant rules, apply to the people's court for deferment or reduction of
the payment or for its exemption.
Particulars
for payment of litigation costs shall be laid down separately.
Part
Two Trial Procedure
Chapter
XII Ordinary Procedure of First Instance
Section
1 Bringing a Lawsuit and Entertaining a Case
Article 108 The
following conditions must be met when a lawsuit is brought:
(1)
the plaintiff must be a citizen, legal person or any
other organization that has a direct interest in the case;
(2)
there must be a definite defendant;
(3)there must be specific claim or claims, facts, and cause or
causes for the suit; and
(4)
the suit must be within the scope of acceptance for
civil actions by the people's courts and under the jurisdiction of the people's
court where the suit is entertained.
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 defendants.
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
transcribe the complaint and inform the other party of it accordingly.
Article 110 A
statement of complaint shall clearly set forth the following:
(1)
the name, sex, age, ethnic 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.
(2)
the claim or claims of the suit, the facts and grounds
on which the suit is based; and
(3)
the evidence and its source, as well as the names and
home addresses of the witnesses.
Article 111 The
people's court must entertain the lawsuits filed in conformity 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:
(1)
For a lawsuit within the scope of administrative actions in accordance with the
provisions of the Administrative Procedure Law, the people's court shall advise
the plaintiff to institute administrative proceedings;
(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
arbitration, 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;
(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;
(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;
(5)
With respect to cases in which a judgment 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 withdrawal of a suit;
(6)
with respect to an action that may not be filed within
a specified period according to the law, it shall not be entertained, if it is
filed during that period.
(7)
In a divorce case in which a judgment has been made disallowing the divorce, or
in which both parties have become reconciled after conciliation, or in a case
concerning adoptive relationship in which a judgment has been made or
conciliation has been successfully conducted to maintain the adoptive
relationship, 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.
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; if it does not meet the requirements for acceptance, the
court shall make an order within seven days to reject it. The plaintiff, if not
satisfied with the order, may file an appeal.
Section
2 Preparations for Trial
Article 113 The
people's court shall send a copy of the statement of complaint to the defendant
within five days after docketing the case, and the defendant shall file a defence within 15 days from receipt of the copy of the
statement of complaint.
When
the defendant files a defence, the people's court
shall send a copy of it to the plaintiff within five days from its receipt.
Failure by the defendant to file a defence shall not
prevent the case from being tried by the people's court.
Article 114 The
people's court shall, with respect to cases whose acceptance has been decided,
inform the parties in the notification of acceptance and in the notification
calling for response to the action of their relevant litigation rights and
obligations of which the parties may likewise be informed orally.
Article 115 The
parties shall be notified within three days after the members of the collegial
panel are determined.
Article 116 The
judicial officers must carefully examine and verify the case materials and
carry out investigations and collection of necessary evidence.
Article 117 The
personnel sent by a people's court to conduct investigations shall produce
their credentials before the person to be investigated.
The
written record of an investigation shall be checked by the person investigated
and then signed or sealed by both the investigator and the investigated.
Article 118 A
people's court may, when necessary, entrust a people's court in another
locality with the investigations.
The
entrusting people's court shall clearly set out the matters for and
requirements of the entrusted investigations. The entrusted people's court may
on its own initiative conduct supplementary investigations.
The
entrusted people's court shall complete the investigations within 30 days after
receiving the commission in writing. If for some reason it cannot complete the
investigations, the said people's court shall notify the entrusting people's
court in writing within the above-mentioned time limit.
Article 119 If a
party who must participate in a joint action fails to participate in the
proceedings, the people's court shall notify him to participate.
Section
3 Trial in Court
Article 120 Civil
cases shall be tried in public, except for those that involve State secrets or
personal privacy or are to be tried otherwise as provided by the law.
A
divorce case or a case involving trade secrets may not be heard in public if a
party so requests.
Article 121 For
civil cases, the people's court shall, whenever necessary, go on circuit to
hold trials on the spot.
Article 122 For
civil cases, the people's court shall notify the parties and other participants
in the proceedings three days before the opening of a court session. If a case
is to be tried in public, the names of the parties, the cause of action and the
time and location of the court session shall be announced publicly.
Article 123
Before a court session is called to order, the court clerk shall ascertain
whether or not the parties and other participants in the proceedings are
present and announce the rules of order of the court.
At
the beginning of a court session, the presiding judge shall check the parties
present, announce the cause of action and the names of the judicial officers
and court clerks, inform the parties of their relevant litigation rights and
obligations and ask the parties whether or not they wish to apply for the
withdrawal of any court personnel.
Article 124
Court investigation shall be conducted in the following order:
(1)
statements by the parties;
(2)
informing the witnesses of their rights and
obligations, giving testimony by the witnesses and reading of the written
statements of absentee witnesses;
(3)
presentation of documentary evidence, material
evidence and audio-visual material;
(4)
reading of expert conclusions; and
(5)
reading of records of inspection.
Article 125 The
parties may present new evidence during a court session.
With
the permission of the court, the parties may put questions to witnesses, expert
witnesses and inspectors.
Any
request by the parties concerned for a new investigation, expert evaluation or
inspection shall be subject to the approval of the people's court.
Article 126 Additional
claims by the plaintiff, counterclaims by the defendant and third-party claims
related to the case may be tried in combination.
Article 127 Court
debate shall be conducted in the following order:
(1)
oral statements by the plaintiff and his agents ad
litem;
(2)
defence by the defendant and his agents
ad litem;
(3)
oral statement or defence by
the third party and his agents ad litem;
(4)
debate between the two sides.
At
the end of the court debate, the presiding judge shall ask each side, first the
plaintiff, then the defendant, and then the third party, for their final
opinion respectively.
Article 128 At
the end of the court debate, a judgment shall be made according to the law.
Where conciliation is possible prior to the rendering of a judgment,
conciliation efforts may be made; if conciliation proves to be unsuccessful, a
judgment shall be made without delay.
Article 129 If a
plaintiff, having been served with a summons, refuses to appear in court
without justified reasons, or if he withdraws during a court session without
the permission of the court, the case may be considered as withdrawn by him; if
the defendant files a counterclaim in the mean time,
the court may make a judgment by default.
Article 130 If a
defendant, having been served with a summons, refuses to appear in court
without justified reasons, or if he withdraws during a court session without
the permission of the court, the court may make a judgment by default.
Article 131 If a
plaintiff applies for withdrawal of the case before the judgment is pronounced,
the people's court shall decide whether to approve or disapprove it.
If
withdrawal of the case is not allowed by an order of the people's court, and
the plaintiff, having been served with a summons, refuses to appear in court
without justified reasons, the people's court may make a judgment by default.
Article 132
Under any of the following circumstances, the trial may be adjourned:
(1)
the parties concerned and other participants in the
proceedings required to appear in court fail to do so for justified reasons;
(2)
any party concerned makes an extempore application for
the withdrawal of a judicial officer; or
(3)
it is necessary to summon new witnesses to court,
collect new evidence, make a new expert evaluation, new inspection, or to make
a supplementary investigation; or
(4)
other circumstances that warrant the adjournment.
Article 133 The
court clerk shall make a written record of the entire court proceedings, which
shall be signed by him and the judicial officers.
The
court record shall be read out in court, or else the parties and other
participants in the proceedings may be notified to read the record while in
court or within five days. If they consider that there are omissions or errors
in the record of their own statements, the parties or other participants in the
proceedings shall have the right to apply for rectifications. If such
rectifications are not made, the application shall be placed on record in the
case file.
The
court record shall be signed or sealed by the parties and other participants in
the proceedings. Refusal to do so shall be put on record in the case file.
Article 134 The
people's court shall publicly pronounce its judgment in all cases, whether
publicly tried or not.
If
a judgment is pronounced in court, the written judgment shall be issued and
delivered within ten days; if a judgment is pronounced later on a fixed date,
the written judgment shall be issued and given immediately after the
pronouncement.
Upon
pronouncement of a judgment, the parties concerned must be informed of their
right to file an appeal, the time limit for appeal and the court to which they
may appeal.
Upon
pronouncement of a divorce judgement, the parties
concerned must be informed not to remarry before the judgment takes legal
effect.
Article 135 A
people's court trying a case in which the ordinary procedure is followed, shall
conclude the case within six months after docketing the case. Where an
extension of the period is necessary under special circumstances, a six-month
extension may be allowed subject to the approval of the president of the court.
Further extension, if needed, shall be reported to the people's court at a
higher level for approval.
Section
4 Suspension and Termination of Legal Proceedings
Article 136
Legal Proceedings shall be suspended in any of the following circumstances:
(1)
one of the parties dies and it is necessary to wait
for the heir or heiress to make clear whether to participate or not in the
proceedings;
(2)
one of the parties has lost the capacity to engage in
litigation and his agent ad litem has not been designated yet;
(3)
the legal person or any other organization as one of
the parties has dissolved, and the successor to its rights and obligations has
not been determined yet;
(4)
one of the parties is unable to participate in the
proceedings for reasons of force majeure;
(5)
the adjudication of the case pending is dependent on
the results of the trial of another case that has not yet been concluded; or
(6)
other circumstances that warrant the suspension of the
litigation.
The
proceedings shall resume after the causes of the suspension have been
eliminated.
Article 137
Legal proceedings shall be terminated in any of the following circumstances:
(1)
the plaintiff dies without a successor, or the
successor waives the right to litigate;
(2)
the decedent leaves no estate, nor any
one to succeed to his obligations;
(3)
one of the parties in a divorce case dies; or
(4)
one of the parties dies who is a claimant to alimony,
support for elders or children or to the termination of adoptive relationship.
Section
5 Judgment and Order
Article 138 A judgment shall clearly set forth the following:
(1)
cause of action, the claims, facts and cause or causes
of the dispute;
(2)
the facts and causes as found in the judgment and the
basis of application of the law;
(3)
the outcome of adjudication and the costs to be borne;
and
(4)
the time limit for filing an appeal and the appellate
court with which the appeal may be filed.
The
judgment shall be signed by the judicial officers and the court clerk, with the
seal of the people's court affixed to it.
Article 139 If
some of the facts in a case being tried by the people's court are already
evident, the court may pass judgment on that part of the case first.
Article 140 An
order in writing is to be made in any of the following conditions:
(1)refusal to entertain a case;
(2)objection to the jurisdiction of a court;
(3)rejection of a complaint;
(4)property preservation and advance execution;
(5)
approval or disapproval of withdrawal of a suit;
(6)
suspension or termination of legal proceedings;
(7)
correction of errata in the judgment;
(8)
suspension or termination of execution;
(9)
refusal to enforce an arbitration award;
(10)refusal to enforce a document of a notary office evidencing
the rights of a creditor and entitling him to its compulsory execution;
(11)
other matters to be decided in the form of an order in
writing.
An
appeal may be lodged against an order in writing in Item(1),
(2) and (3) mentioned above.
An
order in writing shall be signed by the judicial officers and the court clerk,
with the seal of the people's court affixed to it. If it is issued orally, the
order shall be entered in the record.
Article 141 All
judgments and written orders of the Supreme People's Court, as well as
judgments and written orders that may not be appealed against according to the
law or that have not been appealed against within the prescribed time limit,
shall be legally effective.
Chapter
XIII Summary Procedure
Article 142 When
trying simple civil cases in which the facts are evident, the rights and
obligations clear and the disputes trivial in character, the basic people's
courts and the tribunals dispatched by them shall apply the provisions of this
Chapter.
Article 143 In
simple civil cases, the plaintiff may lodge his complaint orally.
The
two parties concerned may at the same time come before a basic people's court
or a tribunal dispatched by it for a solution of their dispute. The basic
people's court or the tribunal it dispatched may try the case immediately or
set a date for the trial.
Article 144 In
trying a simple civil case, the basic people's court or the tribunal dispatched
by it may use simplified methods to summon at any time the parties and
witnesses.
Article 145 Simple
civil cases shall be tried by a single judge alone and the trial of such cases
shall not be bound by the provisions of Articles 122, 124, and 127 of this Law.
Article 146 The
people's court trying a case in which summary procedure is followed shall
conclude the case within three months after placing the case on the docket.
Chapter
XIV Procedure of Second Instance
Article
147
If a party refuses to accept a judgment of first instance of a local people's
court, he shall have the right to file an appeal with the people's court at the
next higher level within 15 days after the date on which the written judgment
was served.
If
a party refuses to accept a written order of first instance of a local people's
court, he shall have the right to file an appeal with a people's court at the
next higher level within 10 days after the date on which the written order was
served.
Article 148 For
filing an appeal, a petition for the purpose shall be submitted. The content of
the appeal petition shall include the names of the parties, the names of the
legal persons and their legal representatives or names of other organizastions and their principal heads; the name of the
people's court where the case was originally tried; file number of the case and
the cause of action; and the claims of the appeal and the reasons.
Article 149 The
appeal petition shall be submitted through the people's court which originally
tried the case, and copies of it shall be provided according to the number of
persons in the other party or of the representatives thereof.
If
a party appeals directly to a people's court of second instance, the said court
shall within five days transmit the appeal petition to the people's court which
originally tried the case.
Article 150 The
people's court which originally tried the case shall, within five days after
receiving the appeal petition, serve a copy of it on the other party, who shall
submit his defence within 15 days from the receipt of
such copy. The people's court shall, within five days after receiving the defence, serve a copy of it on the appellant. Failure by
the other party to submit a defence shall not prevent
the case from being tried by the people's court.
After
receiving the appeal petition and the defence, the
people's court which originally tried the case shall, within five days, deliver
them together with the entire case file and evidence to the people's court of
second instance.
Article 151 With
respect to an appealed case, the people's court of second instance shall review
the relevant facts and the application of the law.
Article 152 With
respect to a case on appeal, the people's court of second instance shall form a
collegial panel to conduct the trial. After verification of the facts of the
case through consulting the files, making investigations and questioning the
parties, if the collegial panel considers that it is not necessary to conduct a
trial, it may make a judgment or a written order directly.
The
people's court of second instance may try a case on appeal at its own site or
in the place where the case originated or where the people's court which
originally tried the case is located.
Article 153
After trying a case on appeal, the people's court of second instance shall, in
the light of the following situations, dispose of it accordingly:
(1)
if the facts were clearly ascertained and the law was
correctly applied in the original judgment, the appeal shall be rejected in the
form of a judgment and the original judgment shall be affirmed;
(2)
if the application of the law was incorrect in the
original judgment, the said judgment shall be amended according to the law;
(3)
if in the original judgment the facts were incorrectly or not clearly
ascertained and the evidence was insufficient, the people's court of second
instance shall make a written order to set aside the judgment and remand to
case to the original people's court for retrial, or the people's court of
second instance may amend the judgment after investigating and clarifying the
facts; or
(4)
if there was violation of legal procedure in making
the original judgment, which may have affected correct adjudication, the
judgment shall be set aside by a written order and the case remanded to the
original people's court for retrial.
The
parties concerned may appeal against the judgment or written order rendered in
a retrial of their case.
Article 154 The
people's court of second instance shall decide in the form of orders in writing
all cases of appeal against the written orders made by the people's courts of
first instance.
Article 155 In
dealing with a case on appeal, a people's court of second instance may conduct
conciliation. If an agreement is reached through conciliation, a conciliation
statement shall be made and signed by the judicial officers and the court
clerk, with the seal of the people's court affixed to it. After the
conciliation statement has been served, the original judgment of the lower
court shall be deemed as set aside.
Article 156 If an
appellant applies for withdrawal of his appeal before a people's court of
second instance pronounces its judgment, the court shall decide whether to
approve the application or not.
Article 157 In
the trial of a case on appeal, the people's court of second instance shall,
apart from observing the provisions of this Chapter, follow the ordinary
procedure for trials of first instance.
Article 158 The
judgment and the written order of a people's court of second instance shall be
final.
Article 159 The
people's court trying a case on appeal shall conclude the case within three
months after docketing the case. Any extension of the period necessitated by
special circumstances shall be subject to the approval of the president of the
court.
The
people's court trying a case on appeal against a written order shall, within 30
days after docketing the case for second instance trial, make a written order
which is final.
Chapter
XV Special Procedure
Section
1 General Provisions
Article 160 When
the people's courts try cases concerning the qualification of voters, the
declaration of a person as missing or dead, the adjudgment
of legal incapacity or restricted legal capacity of a citizen and the adjudgment of a property as ownerless, the provisions of
this Chapter shall apply. For matters not covered in this Chapter, the relevant
provisions of this Law and other laws shall apply.
Article 161 In
cases tried in accordance with the procedure provided in this Chapter, the
judgment of first instance shall be final. A collegial panel of judges shall be
formed for the trial of any case involving the qualification of voters or of
any major, difficult or complicated case; other cases shall be tried by a
single judge alone.
Article 162 If a
people's court, while trying a case in accordance with the procedure provided
in this Chapter, finds that the case involves a civil dispute over rights and
interests, it shall make a written order to terminate the special procedure and
inform the interested parties to otherwise institute an action.
Article 163 A
people's court trying a case in which special procedure is followed shall
conclude the case within 30 days after placing the case on the docket or within
30 days after expiration of the period stated in the public notice. Any
extension of the time limit necessitated by special circumstances shall be
subject to the approval of the president of the court, excepting, however, a
case concerning the qualification of voters.
Section
2 Cases Concerning the Qualification of Voters
Article 164 If a
citizen refuses to accept an election committee's decision on an appeal
concerning his voting qualification, he may, five days before the election day, bring a suit in the basic people's court
located in the electoral district.
Article 165
After entertaining a case concerning voting qualification, a people's court
must conclude the trial before the election day.
The
party who brings the suit, the representative of the election committee and
other citizens concerned must participate in the proceedings.
The
written judgment of the people's court shall be served on the election
committee and the party who brings the suit before the election
day; other citizens concerned shall be notified of the judgment.
Section
3 Cases Concerning the Declaration of a Person as Missing or Dead
Article 166 With
respect to a citizen whose whereabouts are unknown for two years in full, if
the interested party applies for declaring the person as missing, the
application shall be filed with the basic people's court in the locality where
the missing person has his domicile.
The
application shall clearly state the facts and time of the disappearance of the
person missing as well as the motion; documentary evidence from a public
security organ or other relevant organs concerning the disappearance of the
citizen shall be appended to the application.
Article 167 With
respect to a citizen whose whereabouts are unknown for four years in full or
whose whereabouts are unknown for two years in full after an accident in which
he was involved, or with respect to a citizen whose whereabouts are unknown
after such an accident, and, upon proof furnished by the relevant authorities
that it is impossible for him to survive, if the interested party applies for
declaring such person as dead, the application shall be filed with the basic
people's court in the locality where the missing person has his domicile.
The
application shall clearly state the facts and time of the disappearance as well
as the motion; documentary evidence from a public security organ or other
relevant organs concerning the disappearance of the citizen shall be appended
to the application.
Article 168
After entertaining a case concerning the declaration of a person as missing or
dead, the people's court shall issue a public notice in search of the person
missing. The period of the public notice for declaring a person as missing
shall be three months, and that for declaring a person as dead shall be one
year. Where a citizen's whereabouts are unknown after an accident in which he
was involved and, upon proof furnished by the relevant authorities that it is
impossible for him to survive, the period of the public notice for proclaiming
such person as dead shall be three months.
On
the expiration of the period of the public notice, the people's court shall,
depending on whether the fact of the missing or death of the person has been
confirmed, make a judgment declaring the person missing or dead or make a
judgment rejecting the application.
Article 169 If a
person who has been declared missing or dead by a people's court reappears, the
people's court shall, upon the application of that person or of an interested
party, make a new judgment and annul the previous one.
Section
4 Cases Concerning the Adjudgment of Legal Incapacity
or Restricted Legal Capacity of Citizens
Article 170 An
application for adjudgment of legal incapacity or
restricted legal capacity of a citizen shall be filed by the citizen's near
relatives or any other interested party with the basic people's court in the
locality where the citizen has his domicile.
The
application shall clearly state the fact and grounds of the citizen's legal
incapacity or restricted legal capacity.
Article 171
After accepting such an application, the people's court shall, when necessary,
have an expert evaluation of the citizen of whom the determination of legal
incapacity or restricted legal capacity is sought; if the applicant has already
provided an evaluation conclusion, the people's court shall examine such
conclusion.
Article 172 In
the trial by the people's court of a case for the determination of legal
incapacity or restricted legal capacity of a citizen, a near relative of the
citizen shall be his agent, the applicant being excluded. If the near relatives
of the citizen shift responsibility onto one another, the people's court shall
appoint one of them as agent for the citizen. If the citizen's condition of
health permits, the people's court shall also seek the opinion of the citizen
on the matter.
If,
through the trial, the people's court finds that the application is based on
facts, a judgment of legal incapacity or restricted legal capacity of the
citizen shall be made; if the court finds that the application is not based on
facts, it shall make a judgment rejecting the application.
Article 173 If,
upon the application of a person who has been determined as one of legal
incapacity or restricted legal capacity or upon the application of his
guardian, the people's court confirms that the causes of that person's legal
incapacity or restricted legal capacity have been eliminated, a new judgment
shall be made annulling the previous one.
Section
5 Cases Concerning the Determination of Property as Ownerless
Article 174 An
application for determining a property as ownerless shall be filed by a
citizen, legal person or any other organization with the basic people's court
in the place where the property is located.
The
application shall clearly state the type and quantity of the property and the
grounds on which the application for determining the property as ownerless is
filed.
Article 175 The
people's court shall, after accepting such an application and upon examination
and verification of it, issue a public notice calling on the owner to claim the
property. If no one claims the property one year after the issue of the public
notice, the people's court shall make a judgment determining the property as
ownerless and turn it over to the State or the collective concerned.
Article 176 If,
after a property has been determined by a judgment as ownerless, the owner of
the property or his successor appears, such a person
may file a claim for the property within the period of limitation specified in
the General Principles of the Civil Law. The people's court shall, after
examination and verification of the claim, make a new judgment, annulling the
previous one.
Chapter
XVI Procedure for Trial Supervision
Article 177 If
the president of a people's court at any level finds definite error in a
legally effective judgment or written order of his court and deems it necessary
to have the case retried, he shall refer it to the judicial committee for
discussion and decision.
If
the Supreme People's Court finds definite error in a legally effective judgment
or written order of a local people's court at any level, or if a people's court
at a higher level finds some definite error in a legally effective judgment or
written order of a people's court at a lower level, it shall respectively have
the power to bring the case up for trial by itself or direct the people's court
at a lower level to conduct a retrial.
Article 178 If a
party to an action considers that there is error in a legally effective judgment
or written order, he may apply to the people's court which originally tried the
case or to a people's court at the next higher level for a retrial; however,
execution of the judgment or order shall not be suspended.
Article 179 If an
application made by a party meets any of the following conditions, the people's
court shall retry the case:
(1)
there is sufficient new evidence to set aside the
original judgment or written order;
(2)
the main evidence on which the facts were ascertained
in the original judgment or written order was insufficient;
(3)
there was definite error in the application of the law
in the original judgment or written order;
(4)
there was violation by the people's court of the legal
procedure which may have affected the correctness of the judgment or written
order in the case; or
(5)
the judicial officers have committed embezzlement,
accepted bribes, done malpractices for personal benefits and perverted the law
in the adjudication of the case.
The
people's court shall reject the application that meets none of the conditions
specified above.
Article 180 With
respect to a legally effective conciliation statement, if evidence furnished by
a party proves that the conciliation violates the principle of voluntariness or
that the content of the conciliation agreement violates the law, the party may
apply for a retrial. If the foregoing proves true after its examination, the
people's court shall retry the case.
Article 181 With
respect to a legally effective judgement on
dissolution of marriage, neither of the two parties shall apply for retrial.
Article 182 Application
for a retrial made by a party must be submitted within two years after the
judgment or written order becomes legally effective.
Article 183 When
a decision is made to retry a case in accordance with the procedure for trial
supervision, the execution of the original judgment shall be suspended by a
written order which shall be signed by the president of the court with the seal
of the people's court affixed to it.
Article 184 With
respect to a case pending retrial by a people's court in accordance with the
procedure for trial supervision, if the legally effective judgment or written
order was made by a court of first instance, the case shall be tried in
accordance with the procedure of first instance, and the parties concerned may
appeal against the new judgment or order; if the legally effective judgment or
written order was made by a court of second instance, the case shall be tried
in accordance with the procedure of second instance, and the new judgment or
written order shall be legally effective; if it is a case which was brought up
for trial by a people's court at a higher level, it shall be tried in
accordance with the procedure of second instance, and the new judgment or written
order shall be legally effective.
The
people's court shall form a new collegial panel for the purpose of the retrial.
Article 185 If
the Supreme People's Procuratorate finds that a
legally effective judgment or written order made by a people's court at any
level involves any of the following circumstances, or if a people's procuratorate at a higher level finds that a legally
effective judgment or written order made by a people's court at a lower level
involves any of the following circumstances, the Supreme People's Procuratorate or the people's procuratorate
at a higher level shall respectively lodge a protest in accordance with the
procedure for trial supervision:
(1)the main evidence for ascertaining the facts in the
previous judgment or written order was insufficient;
(2)
there was definite error in the application of the law
in the previous judgment or written order ;
(3)
there was violation by the people's court of the legal
procedure which may have affected the correctness of the judgment or written
order; or
(4)
the judicial officers have committed embezzlement,
accepted bribes, done malpractice for personal benefits and perverted the law
in the trial of the case.
If
a local people's procuratorate at any level finds
that a legally effective judgment or written order made by a people's court at
the corresponging level involves any of the
circumstances specified above, it shall refer the matter to the people's procuratorate at a higher level with the request that a
protest be lodged by the latter in accordance with the procedure for trial
supervision.
Article 186
Cases in which protest was made by the people's procuratorate
shall be retried by the people's court.
Article 187 When
a people's procuratorate decides to lodge a protest
against a judgment or written order made by a people's court, it shall make the
protest in writing.
Article 188 The
people's court shall, in retrying a case in which protest was lodged by a
people's procuratorate, notify the procuratorate to send representative to attend the court
session.
Chapter
XVII Procedure for Hastening Debt Recovery
Article 189 When
a creditor requests payment of a pecuniary debt or recovery of negotiable
instruments from a debtor, he may, if the following requirements are met, apply
to the basic people's court that has jurisdiction for an order of payment:
(1)
no other debt disputes exist between the creditor and
the debtor; and
(2)
the order of payment can be served on the debtor.
The
application shall clearly state the requested amount of money or of the
negotiable instruments and the facts and evidence on the basis of which the
application is made.
Article 190 After
the creditor has submitted his application, the people's court shall within
five days inform the creditor whether it accepts the application or not.
Article 191 After
accepting the application and upon examination of the facts and evidence
provided by the creditor, the people's court shall, if the rights and
obligations relationship between the creditor and the debtor is clear and
legitimate, issue within 15 days after accepting the application, an order of
payment to the debtor; if the application is unfounded, the people's court
shall make an order to reject it.
The
debtor shall, within 15 days after receipt of the order of payment, clear off
his debts or submit to the people's court his dissent in writing.
If
the debtor has neither dissented from nor complied with the order of payment
within the period specified in the preceding paragraph, the creditor may apply
to the people's court for execution.
Article 192 The
people's court shall, on receiving the dissent in writing submitted by the
debtor, make an order to terminate the procedure for hastening debt recovery
and the order of payment shall of itself be invalidated. The creditor may bring
an action in the people's court.
Chapter
XVIII Procedure for Publicizing Public Notice for Assertion of Claims
Article 193 Any
holder of a bill transferable by endorsement according to the law may, if the
bill is stolen, lost, or destroyed, apply to the basic people's court of the
place where the bill is to be paid for publication of public notice for
assertion of claims. The provisions of this Chapter shall apply to other
matters for which, according to the law, an application for publication of a
public notice for assertion of claims may be made.
The
applicant shall submit to the people's court an application which clearly
states the main contents of the bill such as the face amount, the drawer, the
holder, the endorser, and the facts and reasons in respect of the application.
Article 194 The
people's court shall, upon deciding to accept the application , notify the
payer concerned in the meantime to suspend the payment, and shall, within 3
days, issue a public notice for the interested parties to assert their rights.
The period of the public notice shall be decided at the discretion of the
people's court; however, it shall not be less than 60 days.
Article 195 The
payer shall, upon receiving the notification by the people's court to suspend
the payment, do so accordingly till the conclusion of the procedure for
publicizing public notice for assertion of claims.
Within
the period of the public notice, assignment of rights on the bill shall be
void.
Article 196
Interested party or parties as claimants shall report their claims to the
people's court within the period of the public notice.
After
receiving the report on the claims by interested party or parties, the people's
court shall make a written order to terminate the procedure for publicizing
public notice for assertion of claims, and notify the applicant and the payer.
The
applicant or the claimants may bring an action in the people's court.
Article 197 If no
claim is asserted, the people's court shall make a judgment on the basis of the
application to declare the bill in question null and void. The judgment shall
be published and the payer notified accordingly. As of the date of publication
of the judgment, the applicant shall be entitled to payment by the payer.
Article 198 If
an interested party for justified reasons was unable to submit his claim to the
people's court before the judgment is made, he may, within one year after the
day he knows or should know the publication of the judgment,
bring an action in the people's court which has made the judgment.
Chapter
XIX Procedure for Bankruptcy and Debt Repayment of Legal Person Enterprises
Article 199 If a
legal person enterprise has suffered serious losses and is unable to repay the
debts at maturity, the creditors may apply to a people's court for declaring
the debtor bankrupt for debts to be repaid; the debtor may likewise apply to a
people's court for declaring bankruptcy for debts to be repaid.
Article 200
After making an order to declare the initiation of the bankruptcy and debt
repayment proceedings, the people's court shall notify the debtor and the known
creditors within ten days and also make a public announcement.
Creditors
who have been notified shall, within 30 days after receiving the notice, and
those who have not been notified shall, within three months after the date of
the announcement, lodge their claims with the people's court. Creditors who
fail to lodge their claims during the respective periods shall be deemed to
have abandoned their rights.
Creditors
may organize a creditors' meeting to discuss and approve of a formula for the
disposition and distribution of bankrupt property, or for a composition
agreement.
Article 201 The
people's court may appoint a liquidation commission formed by relevant state
organs and persons concerned. The liquidation commission shall take charge of
the custody of the bankrupt property, its liquidation, assessment, disposition
and distribution. The liquidation commission may also engage in necessary
activities of a civil nature according to the law.
The
liquidation commission shall be responsible and report its work to the people's
court.
Article 202 If
the legal person enterprise and the creditors reach a composition agreement,
the people's court shall, after approving the agreement, make a public
announcement of it and terminate the bankruptcy and debt repayment proceedings.
The composition agreement shall be legally effective as of the date of the
public announcement.
Article 203 With
respect to the property mortgaged or otherwise used as security for bank loans
or other obligations, the bank and other creditors shall have priority in the
repayment of debts as regards the property mortgaged or used as security for
other kinds of obligations. If the money value of the property mortgaged or
used as security for other kinds of obligations exceeds the amount of loans
secured, the surplus shall go to the bankrupt property for debt repayment.
Article 204 After
deduction of bankruptcy proceedings expenses from the bankrupt property, first
repayment shall be made in the following order of priority:
(1)
wages and salaries of staff and workers and labour insurance expenses that are owed by the bankrupt
enterprise;
(2)
taxes owed by the bankrupt enterprise;
(3)
claims by creditors in the bankruptcy proceedings.
Where
the bankrupt property is insufficient to meet the repayment claims of the same
order of priority, it shall be distributed on a pro-rata basis.
Article 205 The
debt repayment of a bankrupt legal person enterprise shall be under the
jurisdiction of the people's court of the place where the legal person
enterprise is located.
Article 206 The
provisions of the Law of the People's Republic of China on Enterprise
Bankruptcy shall apply to bankruptcy and debt repayment of enterprises owned by
the whole people.
The
provisions of this Chapter shall not apply to non-legal person enterprises,
individual businesses, leaseholding farm households
and partnerships by private individuals.
Part
Three Procedure of Execution
Chapter
XX General Provisions
Article 207 Legally
effective judgments or written orders in civil cases, as well as the parts of
judgments or written orders that relate to property in criminal cases, shall be
executed by the people's court of first instance.
Other
legal documents which are to be executed by a people's court as prescribed by
the law shall be executed by the people's court of the place where the person
subjected to execution has his domicile or where the property subject to
execution is located.
Article 208 If,
in the course of execution, an outsider raises an objection with respect to the
object subjected to execution, the execution officer shall examine the
objection in accordance with the procedure prescribed by the law. If the
reasons for the objection are untenable, the objection shall be rejected; if
otherwise, execution shall be suspended with the approval of the president of
the court. If definite error is found in the judgment or the written order, it
shall be dealt with in accordance with the procedure for trial supervision.
Article 209
Execution work shall be carried out by the execution officer.
When
carrying out a compulsory execution measure, the execution officer shall
produce his credentials. After the execution is completed, the execution
officer shall make a record of the particulars of the execution, and have it
signed or sealed by the persons concerned on the scene.
The
basic people's court and the intermediate people's court may, when necessary,
establish execution organs, whose functions shall be defined by the Supreme
People's Court.
Article 210 If a
person or property subjected to execution is in another locality, the people's
court in that locality may be entrusted with the carrying out of the execution.
The entrusted people's court shall begin the execution within 15 days after
receiving a letter of entrustment and shall not refuse to do so. After the
execution has been completed, the entrusted people's court shall promptly
inform the entrusting people's court, by letter, of the result of the
execution. If the execution has not been completed within 30 days, the
entrusted people's court shall also inform the entrusting people's court, by
letter, of the particulars of the execution.
If
the entrusted people's court does not carry out the execution within 15 days
after receiving the letter of entrustment, the entrusting people's court may
request the people's court at a higher level over the entrusted people's court
to instruct the entrusted people's court to carry out the execution.
Article 211 If in
the course of execution the two parties become reconciled and reach a
settlement agreement on their own initiative, the execution officer shall make
a record of the contents of the agreement, and both parties shall affix their
signatures or seals to the record.
If
either party fails to fulfil the settlement
agreement, the people's court may, at the request of the other party, resume
the execution of the legal document which was originally effective.
Article 212 In
the course of execution, if the person subjected to execution provides a
guaranty, the people's court may, with the consent of the person who has
applied for execution, decide on the suspension of the execution and the time
limit for such suspension. If the person subjected to execution still fails to
perform his obligations after the time limit, the people's court shall have the
power to execute the property he provided as security or the property of the
guarantor.
Article 213 If
the citizen subjected to execution dies, his debts shall be paid off from the
deceased estate; if a legal person or any other organization subjected to
execution dissolves, the party that succeeds to its rights and obligations
shall fulfil the obligations.
Article 214
After the completion of execution, if definite error is found in the executed
judgment, written order or other legal documents resulting in the annulment of
such judgment, order or legal documents by the people's court, the said court
shall, with respect to the property which has been executed, make a written
order that persons who have obtained the property shall return it. In the event
of refusal to return such property, compulsory execution shall be carried out.
Article 215 The
provisions of this Part shall be applicable to the execution of the
conciliation statement as drawn up by the people's court.
Chapter
XXI Application for Execution and Referral
Article 216 The
parties concerned must comply with legally effective judgments or written
orders in civil cases. If a party refuses to do so, the other party may apply
to the people's court for execution, or the judge may refer the matter to the
execution officer for enforcement.
The
parties concerned must comply with the conciliation statement and other legal
documents that are to be executed by the people's court. If a party refuses to
do so, the other party may apply to the people's court for enforcement.
Article 217 If a
party fails to comply with an award of an arbitral organ established according
to the law, the other party may apply for execution to the people's court which
has jurisdiction over the case. The people's court applied to shall enforce the
award.
If
the party against whom the application is made furnishes proof that the
arbitral award involves any of the following circumstances, the people's court
shall, after examination and verification by a collegial panel, make a written
order not to allow the enforcement:
(1)
the parties have had no arbitration clause in their
contract, nor have subsequently reached a written agreement on arbitration;
(2)
the matters dealt with by the award fall outside the
scope of the arbitration agreement or are matters which the arbitral organ has
no power to arbitrate;
(3)the composition of the arbitration tribunal or the
procedure for arbitration contradicts the procedure prescribed by the law.
(4)the main evidence for ascertaining the facts is
insufficient;
(5)
there is definite error in the application of the law;
or
(6)
the arbitrators have committed embezzlement, accepted
bribes or done malpractice for personal benefits or perverted the law in the
arbitration of the case;
If
the people's court determines that the execution of the arbitral award is
against the social and public interest, it shall make an order not to allow the
execution.
The
above-mentioned written order shall be served on both parties and the arbitral
organ.
If
the execution of an arbitral award is disallowed by a written order of the
people's court, the parties may, in accordance with a written agreement on
arbitration reached between them, apply for arbitration again; they may also
bring an action in a people's court.
Article 218 If a
party fails to comply with a document evidencing the creditor's rights made
enforceable according to the law by a notary office, the other party may apply
to the people's court which has jurisdiction over the case for execution. The
people's court applied to shall enforce such document.
If
the people's court finds definite error in the document of creditor's rights,
it shall make an order not to allow the execution and serve the order on both
parties concerned as well as the notary office.
Article 219 The
time limit for the submission of an application for execution shall be one
year, if both or one of the parties are citizens; it shall be six months if
both parties are legal persons or other organizations.
The
above-mentioned time limit shall be calculated from the last day of the period
of performance specified by the legal document. If the legal document specifies
performance in stages, the time limit shall be calculated from the last day of
the period specified for each stage of performance.
Article 220 The
execution officer shall, after receiving the application for execution or the
writ of referral directing execution, send an execution notice to the person
subjected to execution, instructing him to comply within the specified time. If
the person fails to comply accordingly, compulsory execution shall be carried
out.
Chapter
XXII Execution Measures
Article 221 If
the person subjected to execution fails to fulfil
according to the execution notice the obligations specified in the legal
document, the people's court shall be empowered to make inquiries with banks,
credit cooperatives or other units that deal with savings deposit into the
deposit accounts of the person subjected to execution, and shall be empowered
to freeze or transfer his deposits; however, the inquiries, freezing or
transfer of the deposits shall not exceed the scope of the obligations to be
fulfilled by the person subjected to execution.
The
people's court shall, in deciding to freeze or transfer a deposit, make a
written order and issue a notice for assistance in execution. Banks, credit
cooperatives or other units that deal with savings deposit must comply with it.
Article 222 If
the person subjected to execution fails to fulfil
according to the execution notice the obligations specified in the legal
document, the people's court shall be empowered to withhold or withdraw part of
the income of the person subjected to execution, for the fulfillment of his
obligations. However, it shall leave out the necessary living expenses for the
person subjected to execution and his dependant
family members.
The
people's court shall, when withholding or withdrawing the income, make a
written order and issue a notice for assistance in execution. The unit in which
the person subjected to execution works, banks, credit cooperatives or other
units that deal with savings deposit must comply with the notice.
Article 223 If
the person subjected to execution fails to fulfil
according to the execution notice the obligations specified in the legal
document, the people's court shall be empowered to seal up ,
distrain, freeze, sell by public auction, or sell off
part of the property of the person subjected to execution for the fulfilment of his obligations. However, it shall leave out
the necessaries of life for the person subjected to execution and his dependant family members.
The
people's court shall make an order for the adoption of the measures specified
in the preceding paragraph.
Article 224 When
the people's court seals up or distrains a property,
it shall, if the person subjected to execution is a citizen, notify him or an
adult member of his family to appear on the scene; if the party subjected to
execution is a legal person or any other organization, it shall notify its
legal representatives or its principal heads to be present. Their refusal to
appear on the scene shall not hinder the execution. If the person subjected to
execution is a citizen, his unit or the grass-roots organization of the place
where his property is located shall send a representative to attend the
execution.
An
inventory of the sealed-up or distrained property
must be made by the execution officer and, after the inventory has been signed
or sealed by the persons on the scene, a copy of it shall be given to the
person subjected to execution. If the person subjected to execution is a
citizen, another copy may be given to an adult member of his family.
Article 225 The
execution officer may commit the sealed-up property to the person subjected to
execution for safekeeping, and the person shall be held responsible for any
losses incurred due to his fault.
Article 226
After a property has been sealed up or distrained,
the execution officer shall instruct the person subjected to execution to fulfil, within the prescribed period, the obligations
specified in the legal document. If the person has not fulfilled his
obligations upon expiration of the period, the people's court may, in
accordance with the relevant legal provisions, entrust the relevant units with
selling by public auction or selling off the sealed-up or distrained
property. Articles which are prohibited from free trading by the State shall be
delivered to and purchased by the relevant units at the price fixed by the
State.
Article 227 If
the person subjected to execution fails to fulfil his
obligations specified in the legal document and conceals his property, the
people's court shall be empowered to issue a search warrant and search him and
his domicile or the place where the property was concealed.
In
adopting the measure mentioned in the preceding paragraph, the president of the
people's court shall sign and issue the search warrant.
Article 228 With
respect to the property or negotiable instruments specified for delivery in the
legal document, the execution officer shall summon both parties concerned and
deliver them in their presence or the execution officer may forward them to the
recipient, who shall sign and give a receipt.
Any
unit concerned that has in possession the property or negotiable instruments
shall turn them over to the recipient in accordance with the notice of the
people's court for assistance in execution, and the recipient shall sign and
give a receipt.
If
any citizen concerned has in possession the property or negotiable instruments,
the people's court shall notify him to hand them over. If he refuses to do so,
compulsory execution shall be carried out.
Article 229 Compulsory
eviction from a building or a plot of land shall require a public notice signed
and issued by the president of a people's court, instructing the person
subjected to execution to comply within a specified period of time. If the
person subjected to execution fails to do so upon the expiration of the period,
compulsory execution shall be carried out by the execution officer.
When
compulsory execution is being carried out, if the person subjected to execution
is a citizen, the person or an adult member of his family shall be notified to
be present; if the party subjected to execution is a legal person or any other
organization, its legal representatives or principal heads shall be notified to
be present; their refusal to be present shall not hinder the execution. If the
person subjected to execution is a citizen, his work unit or the grass-roots
organization in the locality of the building or the plot of land shall send a
representative for attendance. The execution officer shall make a record of the
particulars of the compulsory execution, with the signatures or seals of the
persons on the scene affixed to it.
The
people's court shall assign personnel to transport the property removed in a
compulsory eviction from a building to a designated location and turn it over to
the person subjected to execution or, if the person is a citizen, to an adult
member of his family; if any loss is incurred due to such person's refusal to
accept the property, the loss shall be borne by the person subjected to
execution.
Article 230 In
the course of execution, if certain formalities for the transfer of
certificates of property right need to be gone through, the people's court may
issue a notice for assistance in execution to the relevant units, and they must
comply with it.
Article 231 If
the person subjected to execution fails to perform acts specified in a judgment
or written order or any other legal document according to the execution notice,
the people's court may carry out compulsory execution or entrust the task to a
relevant unit or other persons, and the person subjected to execution shall
bear the expenses thus incurred.
Article 232 If
the person subjected to execution fails to fulfil his
obligations with respect to pecuniary payment within the period specified by a
judgment or written order or any other legal document,
he shall pay double interest on the debt for the belated payment. If the person
subjected to execution fails to fulfil his other
obligations within the period specified in the judgment or written order or any
other legal document, he shall pay a charge for the dilatory fulfillment.
Article 233
After the adoption of the execution measures stipulated in Articles 221, 222
and 223 of this Law, if the person subjected to execution is still unable to
repay the debts, he shall continue to fulfil his obligations. If the creditor finds that the
person subjected to execution has any other property, he may at any time apply
to the people's court for execution.
Chapter
XXIII Suspension and Termination of Execution
Article 234 The
people's court shall make a written order to suspend execution under any of the
following circumstances:
(1)
the applicant indicates that the execution may be
postponed;
(2)
an outsider raises an obviously reasonable objection
to the object of the execution;
(3)
a citizen as one of the parties dies and it is
necessary to wait for the successor to inherit the rights of the deceased or to
succeed to his obligations;
(4)
a legal person or any other organization as one of the
parties dissolves, and the party succeeding to its rights and obligations has
not been determined; or
(5)
other circumstances occur under which the people's
court deems the suspension of execution necessary.
Execution
shall be resumed when the circumstances warranting the suspension of execution
have disappeared.
Article 235 The
people's court shall make a written order to terminate execution under any of
following circumstances:
(1)
the applicant has withdrawn his application;
(2)
the legal document on which the execution is based has
been revoked;
(3)
the citizen subjected to execution dies and there is
no estate that may be subjected to execution, nor anyone to succeed to his
obligations;
(4)
the person entitled to claim alimony or support for
elders or children dies;
(5)
the citizen subjected to execution is too badly off to
repay his debts, has no source of income and has lost his ability to work as
well; or
(6)
other circumstances occur under which the people's
court deems the termination of execution necessary.
Article 236 A written
order to suspend or terminate execution shall become
effective immediately after being served on the parties concerned.
Part
Four Special Provisions for Civil Procedure of Cases Involving Foreign Element
Chapter
XXIV General Principles
Article 237 The
provisions of this Part shall be applicable to civil proceedings within the
territory of the People's Republic of China in regard to cases involving
foreign element. Where it is not covered by the provisions of this Part, other
relevant provisions of this Law shall apply.
Article 238 If
an international treaty concluded or acceded to by the People's Republic of
China contains provisions that differ from provisions of this Law, the
provisions of the international treaty shall apply, except those on which China
has made reservations.
Article 239 Civil
actions brought against a foreign national, a foreign organization or an
international organization that enjoys diplomatic privileges and immunities
shall be dealt with in accordance with the relevant law of the People's
Republic of China and the provisions of the international treaties concluded or
acceded to by the People's Republic of China.
Article 240 The
people's court shall conduct trials of civil cases involving foreign element in
the spoken and written language commonly used in the People's Republic of
China. Translation may be provided at the request of the parties concerned, and
the expenses shall be borne by them.
Article 241 When
foreign nationals, stateless persons or foreign enterprises and organizations
need lawyers as agents ad litem to bring an action or enter appearance on their
behalf in the people's court, they must appoint lawyers of the People's
Republic of China.
Article 242 Any
power of attorney mailed or forwarded by other means from outside the territory
of the People's Republic of China by a foreign national, stateless person or a
foreign enterprise and organization that has no domicile in the People's
Republic of China for the appointment of a lawyer or any other person of the
People's Republic of China as an agent ad litem must be notarized by a notarial
office in the country of domicile and authenticated by the Chinese embassy or
consulate accredited to that country or, for the purpose of verification, must
go through the formalities stipulated in the relevant bilateral treaties
between China and that country before it becomes effective.
Chapter
XXV Jurisdiction
Article 243 In
the case of an action concerning a contract dispute or other disputes over
property rights and interests, brought against a defendant who has no domicile
within the territory of the People's Republic of China, if the contract is
signed or performed within the territory of the People's Republic of China, or
if the object of the action is located within the territory of the People's
Republic of China, or if the defendant has distrainable property within the
territory of the People's Republic of China, or if the defendant has its
representative office within the territory of the People's Republic of China, the
people's court of the place where the contract is signed or performed, or where
the object of the action is, or where the defendant's distrainable property is
located, or where the torts are done, or where the defendant's representative
office is located, shall have jurisdiction.
Article 244 Parties
to a dispute over a contract concluded with foreign element or over property
rights and interests involving foreign element may, through written agreement,
choose the court of the place which has practical connections with the dispute
to exercise jurisdiction. If a people's court of the People's Republic of China
is chosen to exercise jurisdiction, the provisions of this Law on jurisdiction
by forum level and on exclusive jurisdiction shall not be violated.
Article 245 If in
a civil action in respect of a case involving foreign element, the defendant
raises no objection to the jurisdiction of a people's court and responds to the
action by making his defence, he shall be deemed to
have accepted that this people's court has jurisdiction over the case.
Article 246 Actions
brought on disputes arising from the performance of contracts for
Chinese-foreign equity joint ventures, or Chinese-foreign contractual joint
ventures, or Chinese-foreign cooperative exploration and development of the
natural resources in the People's Republic of China shall fall under the
jurisdiction of the people's courts of the People's Republic of China.
Chapter
XXVI Service and Time Periods
Article 247 A
people's court may serve litigation documents on a party who has no domicile
within the territory of the People's Republic of China in the following ways:
(1)
in the way specified in the international treaties concluded or acceded to by
both the People's Republic of China and the country where the person on whom
service is to be made resides;
(2)
by making the service through diplomatic channels;
(3)
with respect to the person on whom the service is to be made and who is of the
nationality of the People's Republic of China, service may be entrusted to the
embassy or consulate of the People's Republic of China accredited to the
country where the person resides;
(4)
by making the service on the agent ad litem who is
authorized to receive the documents served;
(5)
by serving the documents on the representative office established in the
People's Republic of China by the person on whom the service is to be made or
on his branch office or business agents there who have the right to receive the
documents;
(6)
by making service by mail if the law of the country where the person on whom
the service is to be made resides so permits; in the event that the receipt of
delivery is not returned six months after the date on which the documents were
mailed, and that circumstances justify the assumption that service has been
made, the service shall be deemed completed upon the expiration of the said
time period; and
(7)
by making service by public notice, if none of the
above-mentioned methods can be employed. The service shall be deemed completed
six months after the date on which the public notice was issued.
Article
248 If
a defendant has no domicile within the territory of the People's Republic of
China, the people's court shall serve a copy of the statement of complaint on
the defendant and notify him to submit his defence
within 30 days after he receives the copy of the statement of complaint.
Extension of the period requested by the defendant shall be at the discretion
of the people's court.
Article 249 If a
party who has no domicile within the territory of the People's Republic of
China is not satisfied with a judgment or written order made by a people's
court of first instance, he shall have the right to file an appeal within 30
days from the date the written judgment or order is served. The appellee shall
submit his defence within 30 days after receipt of a
copy of the appeal petition. If a party who is unable to file an appeal or
submit a defence within the period prescribed by the
law requests an extension of the period, the people's court shall decide
whether to grant it.
Article 250 The
period for the trials of civil cases involving foreign element by the people's
court shall not be restricted by the provisions of Articles 135 and 159 of this
Law.
Chapter
XXVII Property Preservation
Article 251 The
parties to an action may, in accordance with the provisions of Article 92 of
this Law, apply to the people's court for property preservation.
Interested
parties may, in accordance with the provisions of Article 93 of this Law, apply
to the people's court for property preservation before an action is brought.
Article 252 After
a people's court makes an order granting property preservation before
litigation, the applicant shall bring an action within 30 days. If he fails to
bring the action within the period, the people's court shall cancel the
property preservation.
Article 253 After
the people's court makes an order granting property preservation, if the party
against whom the application is made provides a guaranty, the people's court
shall cancel the property preservation.
Article 254 If
the application is wrongfully made, the applicant shall compensate the party
against whom the application is made for losses incurred from the property
preservation.
Article 255 If
the property to be preserved by a people's court needs supervision, the court
shall notify the unit concerned to be responsible for the supervision, and the
party against whom the application is made shall bear the expenses.
Article 256 The
order to cancel the preservation issued by a people's court shall be carried
out by an execution officer.
Chapter
XXVIII Arbitration
Article 257 In
the case of a dispute arising from the foreign economic, trade, transport or
maritime activities of China, if the parties have had an arbitration clause in
the contract concerned or have subsequently reached a written arbitration
agreement stipulating the submission of the dispute for arbitration to an
arbitral organ in the People's Republic of China handling cases involving
foreign element, or to any other arbitral body, they may not bring an action in
a people's court.
If
the parties have not had an arbitration clause in the contract concerned or
have not subsequently reached a written arbitration agreement, they may bring
an action in a people's court.
Article 258 If a
party has applied for property preservation measures, the arbitral organ of the
People's Republic of China handling cases involving foreign element shall refer
the party's application for a decision to the intermediate people's court of the
place where the party against whom the application is made has his domicile or
where his property is located.
Article 259 In a
case in which an award has been made by an arbitral organ of the People's
Republic of China handling cases involving foreign element, the parties may not
bring an action in a people's court. If one party fails to comply with the
arbitral award, the other party may apply for its enforcement to the
intermediate people's court of the place where the party against whom the
application for enforcement is made has his domicile or where his property is
located.
Article 260 A
people's court shall, after examination and verification by a collegial panel
of the court, make a written order not to allow the enforcement of the award
rendered by an arbitral organ of the People's Republic of China handling cases
involving foreign element, if the party against whom the application for
enforcement is made furnishes proof that:
(1)the parties have not had an arbitration clause in the
contract or have not subsequently reached a written arbitration agreement;
(2)the
party against whom the application for enforcement is made was not given notice
for the appointment of an arbitrator or for the inception of the arbitration
proceedings or was unable to present his case due to causes for which he is not
responsible;
(3)the composition of the arbitration tribunal or the
procedure for arbitration was not in conformity with the rules of arbitration;
or
(4)
the matters dealt with by the award fall outside the scope
of the arbitration agreement or which the arbitral organ was not empowered to
arbitrate.
If
the people's court determines that the enforcement of the award goes against
the social and public interest of the country, the people's court shall make a
written order not to allow the enforcement of the arbitral award.
Article 261 If
the enforcement of an arbitral award is disallowed by a written order of a
people's court, the parties may, in accordance with a written arbitration
agreement reached between them, apply for arbitration again; they may also
bring an action in a people's court.
Chapter
XXIX Judicial Assistance
Article 262 In
accordance with the international treaties concluded or acceded to by the
People's Republic of China or with the principle of reciprocity, the people's
courts of China and foreign courts may make mutual requests for assistance in
the service of legal documents, in investigation and collection of evidence or
in other litigation actions.
The
people's court shall not render the assistance requested by a foreign court, if
it impairs the sovereignty, security or social and public interest of the
People's Republic of China.
Article 263 The
request for the providing of judicial assistance shall be effected
through channels provided in the international treaties concluded or acceded to
by the People's Republic of China; in the absence of such treaties, they shall
be effected through diplomatic channels.
A
foreign embassy or consulate accredited to the People's Republic of China may
serve documents on its citizens and make investigations and collect evidence
among them, provided that the laws of the People's Republic of China are not
violated and no compulsory measures are taken.
Except
for the conditions provided in the preceding paragraph, no foreign organization
or individual may, without the consent of the competent authorities of the
People's Republic of China, serve documents or make investigations and collect
evidence within the territory of the People's Republic of China.
Article 264 The
letter of request for judicial assistance and its annexes sent by a foreign
court to a people's court shall be appended with a Chinese translation or a
text in any other language or languages specified in the relevant international
treaties.
The
letter of request and its annexes sent to a foreign court by a people's court
for judicial assistance shall be appended with a translation in the language of
that country or a text in any other language or languages specified in the
relevant international treaties.
Article 265 The
judicial assistance provided by the people's courts shall be rendered in
accordance with the procedure prescribed by the laws of the People's Republic
of China. If a special form of judicial assistance is requested by a foreign
court, it may also be rendered, provided that the special form requested does
not contradict the laws of the People's Republic of China.
Article 266 If a
party applies for enforcement of a legally effective judgment or written order
made by a people's court, and the opposite party or his property is not within
the territory of the People's Republic of China, the applicant may directly
apply for recognition and enforcement to the foreign court which has
jurisdiction. The people’s court may also, in accordance with the relevant
provisions of the international treaties concluded or acceded to by China, or
with the principle of reciprocity, request recognition and enforcement by the
foreign court.
If
a party applies for enforcement of a legally effective arbitral award made by
an arbitral organ in the People's Republic of China handling cases involving
foreign element and the opposite party or his property is not within the
territory of the People's Republic of China, he may directly apply for
recognition and enforcement of the award to the foreign court which has
jurisdiction.
Article
267 If
a legally effective judgment or written order made by a foreign court requires
recognition and enforcement by a people's court of the People's Republic of
China, the party concerned may directly apply for recognition and enforcement
to the intermediate people's court of the People's Republic of China which has
jurisdiction. The foreign court may also, in accordance with the
provisions of the international treaties concluded or acceded to by that
foreign country and the People's Republic of China or with the principle of
reciprocity, request recognition and enforcement by a people's court.
Article 268 In
the case of an application or request for recognition and enforcement of a
legally effective judgment or written order of a foreign court, the people's
court shall, after examining it in accordance with the international treaties
concluded or acceded to by the People's Republic of China or with the principle
of reciprocity and arriving at the conclusion that it does not contradict the
basic principles of the law of the People's Republic of China nor violates
State sovereignty, security and social and public interest of the country,
recognize the validity of the judgment or written order, and, if required,
issue a writ of execution to enforce it in accordance with the relevant
provisions of this Law; if the application or request contradicts the basic
principles of the law of the People's Republic of China or violates State
sovereignty, security and social and public interest of the country, the
people's court shall not recognize and enforce it.
Article
269
If an award made by a foreign arbitral organ requires the recognition and
enforcement by a people's court of the People's Republic of China, the party
concerned shall directly apply to the intermediate people's court of the place
where the party subjected to enforcement has his domicile or where his property
is located. The people's court shall deal with the matter in
accordance with the international treaties concluded or acceded to by the
People's Republic of China or with the principle of reciprocity.
Article 270 This
Law shall go into effect as of the date of promulgation, and the Civil
Procedure Law of the People's Republic of China (for Trial Implementation)
shall be abrogated simultaneously.