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Law of Civil Procedure of the People's Republic of China (civil procedure Law) |
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(Adopted by the fourth session of the seventh National
People's Congress on 9th April 1991)
TOP Part One General Principles Chapter I. Tasks, Application Scope and Basic Principles Chapter II. Jurisdiction Section One Differentiated Jurisdiction Section Two Regional Jurisdiction Section Three Transferred Jurisdiction and Designated Jurisdiction Chapter III. Trial Group Chapter IV. Withdrawal Chapter V. Litigant Participants Section One Litigants Section Two Litigant Representatives Chapter VI. Evidence Chapter VII. Period and Service Section One Period Section Two Service Chapter VIII. Mediation Chapter IX. Custody of Property and Prior Execution Chapter X. Coercive Measures Against Hindrance to Civil Actions Chapter XI. Litigation Fees
Part Two Trial Procedure
Chapter XII. Ordinary Procedure of First Instance Section One Starting an Action and Accepting a Case Section Two Pre-Hearing Preparations Section Three Hearing Section Four Suspension and Termination of Action Section Five Judgment and Ruling Chapter XIII. Simple Procedure Chapter XIV. Procedure of Second Instance Chapter XV. Special Procedure Section One General Provisions Section Two Cases Regarding the Register of Electors Section Three Cases of Pronouncing Missing Persons, or Pronouncing Death Section Four Cases of Ascertaining Citizens' Incapacity and Restricting Capacity for Civil Action Section Five Cases of Ascertaining Ownerless Property Chapter XVI. Procedure of Judicial Supervision Chapter XVII. Supervising and Pressing Procedure Chapter XVIII. Procedure of Publicizing Pressing Notice Chapter XIX. Procedure of Bankrupt Legal Entity's Debt Payment Part Three Procedure of Execution Chapter XX. General Provisions Chapter XXI. Request of Execution and Transfer of Execution Chapter XXII. Measures of Execution Chapter XXIII. Suspension and Termination of Execution Part Four Special Provisions for Procedure of Civil Actions Involving Foreigners Chapter XXIV. General Principles Chapter XXV. Jurisdiction Chapter XXVI. Service and Period Chapter XXVII. Custody of Property Chapter XXVIII. Arbitration Chapter XXIX. Judicial Assistance Part One General Principles Chapter I. Tasks, Scope of Application and Basic Principles TOP Article 1. The Law of Civil Procedure of the PRC takes the Constitution as its basis. It is enacted in the light of China's experience in handling civil cases and the actual conditions. Article 2. The tasks of the Law of Civil Procedure of the PRC are to protect the party from a lawsuit in exercising its litigant rights and to ensure that the People's Court establishes the truth based on facts, distinguishes right from wrong, applies laws correctly, handles civil cases promptly, ascertains the relationship between civil rights and obligations, takes sanctions against civil violations, safeguards the legitimate rights and interests of the party to a lawsuit, educates the citizens to abide conscientiously by the law, safeguards social and economic order and ensures the smooth progress of socialist construction. Article 3. Provisions of the Law apply to civil lawsuits between citizens, between legal persons and between other organizations, as well as among them, filed because of property and personal relationship, and are handled by the People's Court. Article 4. Civil proceedings within the territory of the PRC shall abide by this Law. Article 5. In filing a lawsuit and responding to a lawsuit in the People's Court, foreigners, people without nationality, foreign enterprises and other organizations shall have the same equal litigant rights and obligations as the citizens, legal persons and other organizations of the PRC. Should the court of a foreign country restrict the civil litigant rights of the citizens, legal persons and other organizations of the PRC, the People's Court of the PRC shall exercise a reciprocal principle on the civil litigant rights of the citizens, enterprises and other organizations of that country. Article 6. The judicial authority over civil cases is exercised by the People's Court. In civil proceedings, the People's Court administers justice independently according to law, subject to no interference by administrative organs, organizations or individuals. Article 7. In civil proceedings, the People's Court shall base itself on facts and take the law as the criterion. Article 8. In civil proceedings, the litigants shall have equal litigant rights. In handling a civil case, the People's Court shall ensure and make it convenient for the litigants to exercise their litigant rights; in the application of the law, the litigants are deemed as equals. Article 9. In civil proceedings, the People's Court shall promote mediation in accordance with the principle of voluntariness and legitimacy; a court decision shall be made promptly when mediation has failed. Article 10. In civil proceedings, the People's Court practices the system of collegiate bench, withdrawal and public trial, and the system of two instances, the first and the final. Article 11. Citizens of all nationalities have the right to use their own languages, spoken or written, in civil proceedings. In districts compactly inhabited by a minority nationality or by a number of nationalities, the People's Court shall hear cases and issue legal documents in the commonly used language in the locality. The People's Court shall provide interpretation for a litigant participant unacquainted with the spoken or written language commonly used in the locality. Article 12. When the People's Court is hearing a civil case, the litigant has the right of debate. Article 13. Litigants have the right of disposing of their own civil rights and litigant rights within the limits prescribed by law. Article 14. The People's Procuratorate has the right of legal supervision over the trials of civil cases. Article 15. Organs, social organizations, enterprises and institutions may support the injured units or individuals to file a suit with the People's Court against acts that damaged the civil rights or interests of the state, collectives or individuals. Article 16. The People's Mediation Committee is a mass organization that mediates civil disputes under the guidance of the ground-level people's government and ground-level people's court. The People's Mediation Committee conducts mediation according to the law and the principle of voluntariness. Litigants shall honor the agreement reached through mediation; those who do not wish to mediate, or fail to reconcile their difference, or go back on their word, may file a suit at the People's Court. The People's Court shall correct any violations of law committed by the People's Mediation Committee during mediation. Article 17. The People's Congress of ethnic autonomous regions may draft flexible or supplementary provisions in accordance with the principles incorporated in the Constitution and this Law, as well as the specific ethnic conditions in their localities. The provisions of an autonomous region shall be reported to the NPC Standing Committee for ratification. The provisions of an autonomous prefecture and county shall be reported to the standing committee of the provincial or autonomous regional people's congress for ratification, and to the NPC Standing Committee for the record. TOP Chapter II. Jurisdiction TOP Section One: Differentiated Jurisdiction Article 18. Unless otherwise stipulated in this Law, the ground-level people's court is competent to rule on the first instance of civil cases. Article 19. The intermediate people's court is competent to rule on the first instance of the following cases (1) Major cases involving foreigners; (2) Cases of great impact within its jurisdiction; (3) Cases determined by the Supreme People's Court as coming under its jurisdiction. Article 20. The Higher People's Court is competent to rule on the first instance of civil cases having great impact within its jurisdiction. Article 21. The Supreme People's Court is competent to rule on the first instance of the following civil cases (1) Cases having great impact nationwide; (2) Cases it deems necessary to try. TOP Section Two: Regional Jurisdiction TOP Article 22. A civil suit against a citizen comes under the jurisdiction of the people's court at the place where the defendant is domiciled; where the defendant's domicile and regular abode is different, the case comes under the jurisdiction of the people's court at the place of his regular abode. A civil suit against an institution or any other organization comes under the jurisdiction of the people's court at the place where the defendant is registered. When the domiciles and regular abodes of several defendants in the same civil suit come under the jurisdiction of two or more people's courts, they all have the right of jurisdiction. Article 23. The following civil suits come under the jurisdiction of the people's court at the place where the plaintiff is domiciled; where the plaintiff's domicile and regular abode is different, the case comes under the jurisdiction of the people's court at the place of his regular abode (1) Actions concerning the identity of persons who do not reside within the domain of the PRC; (2) Actions concerning the identity of persons whose whereabouts are unknown or who have been declared missing; (3) Actions against persons undergoing re-education through labor; (4) Actions against persons in prison. Article 24. Actions arising from disputes over contracts come under the jurisdiction of the people's court at the place of their signing or the place of their implementation. Article 25. The two parties to a contract may specify in writing, the jurisdiction of the people's court of their choice with regard to the defendant's registered address, the place for honoring the contract, the place where the contract is signed, the plaintiff's registered address and the place of the tendered object, but they must not violate the provisions on differentiated jurisdiction and special jurisdiction in this Law. Article 26. Actions arising from disputes over insurance contracts come under the jurisdiction of the people's court at the place of the defendant's registered address, or at the place of the insured objects. Article 27. Actions arising from disputes over negotiable instruments come under the jurisdiction of the people's court at the place where the payment is to be made, or at the place where the defendant domiciled. Article 28. Actions arising from disputes over contracts concerning rail, road, water, air or through transportation come under the jurisdiction of people's court at the place of departure, destination or the place where the defendant is registered. Article 29. Actions against acts of encroachment come under the jurisdiction of the people's court at the place where such acts are committed or at the place where the defendant is domiciled. Articles 30. Actions claiming compensation for damage arising from rail, road, water and air accidents come under the jurisdiction of the people's court at the place where such accidents occurred, or at the place where the vehicles or ships first arrived, or at the place where the aircraft first landed, or at the place where the defendant is registered. Article 31. Actions claiming compensation for damage from ship collisions or other maritime accidents come under the jurisdiction of the people's court at the place where such collisions took place, or at the port where the damaged ship first arrived, or at the port where the ship responsible for the damage is detained or registered. Article 32. Actions claiming salvage money come under the jurisdiction of the people's court at the place of the salvage or at the port where the salvaged ship first arrived. Article 33. Actions claiming common sea damage come under the jurisdiction of the people's court at the port where the ship first arrived, or at the place where common sea damage is settled, or at the port where the journey ends. Article 34. The following cases come under the special jurisdiction of the people's court provided for by this article: (1) Actions started on account of disputes over immovable property come under the jurisdiction of the people's court at the place of the immovable property; (2) Actions started on account of disputes arising from harbor operations come under the jurisdiction of the people's court at the place of the harbor; (3) Actions started on account of disputes over inheriting property come under the jurisdiction of the people's court at the place of the residence of the benefactor at the time of his death or the place of the principal property. Article 35. Where an action comes under the jurisdiction of two or more people's courts, the plaintiff may file a suit at any of them; where the plaintiff brings an action with two or more people's courts which are competent, the case shall be handled by the people's court that is the first to place the case on file . TOP Section Three: Transferred Jurisdiction and Designated Jurisdiction TOP Article 36. When a people's court becomes aware that the case it is handling does not come under its jurisdiction, it shall transfer the case to the competent people's court which shall handle the case. When a people's court considers that, according to the rules, it does not have the right of jurisdiction over a case referred to it, it shall request the superior people's court level to designate the jurisdiction and shall make no further transfer by itself. Article 37. Where the competent people's court is unable to perform its right of jurisdiction on special accounts. Where the right of jurisdiction is in dispute between people's courts, it shall be resolved through consultation by the two parties involved; where consultation has failed, they shall request their common superior people's court to designate the jurisdiction. Article 38. Where a party has an objection to the right of jurisdiction after the case is accepted by the people's court, the party shall raise its objection at the time of submitting a written reply. The people's court shall examine the objection raised by the party. Where the objection is tenable, a ruling shall be made to transfer the case to the competent people's court; where the objection is untenable, it shall reject the objection. Article 39. A superior people's court has the right to conduct as the first instance the trial of a civil case which is under the jurisdiction of an inferior people's court; it may also refer a civil case under its own jurisdiction of first instance to an inferior people's court for trial. Where an inferior people's court considers that a civil case of first instance under its jurisdiction should be tried by a superior people's court, it may request that the case be referred to the latter. TOP Chapter III. Trial Group TOP Article 40. In civil cases of first instance in the people's court, justice is administered by a collegiate bench made up of either judges and assessors, or only of judges. Members of the collegiate bench must total an odd number. In civil cases where simple procedures are applicable, justice is administered by one judge independently. Assessors during the exercise of their functions have equal rights and obligations with the judges. Article 41. In civil cases of second instance in the people's court, justice is administered by a collegiate bench made up of judges. Members of the collegiate bench must total an odd number. The trial de novo of a case returned shall be conducted by a newly organized collegiate bench in the trial court in accordance with the procedure of first instance. A case originally of first instance shall be tried de novo by a newly organized collegiate bench in accordance with the procedure of first instance; a case originally of second instance shall be tried de novo by a newly organized collegiate bench in accordance with the procedure of second instance. Article 42. The presiding judge of the collegiate bench shall be appointed by the president of the court or by a chief judge from among the judges; where the president of the court or the chief judge takes part in the trial, he shall act as the presiding judge. Article 43. The principle of the minority being subordinate to the majority is followed in the deliberation of the collegiate bench. The minutes of the deliberation shall be made and signed by all members of the collegiate bench. Differing opinions must be recorded accurately. Article 44. Judges shall handle cases impartially and in accordance with the law. Judges may not accept dinner invitations or gifts from the litigants or their legal representatives. The legal liability of judges, who take bribes, practice favouritism, engage in fraudulent practices and bend the law in administering justice, shall be pursued. In cases where such acts constitute crimes, the criminal liability involved shall be investigated pursuant to the law. TOP Chapter IV. Withdrawal TOP Article 45. In any of the following circumstances, a judge must withdraw from the exercise of his functions, and a litigant is entitled to challenge him in verbal or written form (1) Where he is a litigant in the case or a close relative of a litigant or his legal representative; (2) Where he has an interest in the case; (3) Where he has other relations with a litigant, which may affect fairness in the administration of justice. The provisions of the preceding paragraph are applicable to recording clerks, interpreters, expert witnesses and inspectors. Article 46. In challenging, a litigant shall submit the reasons at the beginning of the hearing; where the cause of the withdrawal is learned after the hearing commences, the challenge may be raised before the conclusion of arguments in court. Except for emergency measures required by the case, the person who is thus challenged shall temporarily stop exercising his functions in the case before a people's court makes a decision on the challenge. Article 47. The withdrawal of a court president who serves as the presiding judge shall be decided by a judicial committee, while that of a judge shall be decided by the president; the withdrawal of other personnel shall be decided by the presiding judge. Article 48. A people's court shall make a verbal or written decision on a litigant's application for withdrawal within three days of filing the application. If the applicant is dissatisfied with the decision, he may apply for reconsideration upon receipt of the decision. During the period of reconsideration, the person who is challenged shall not stop exercising his functions in the case. The people's court shall make a decision on reconsideration and notify the applicant accordingly within three days of receiving the application. TOP Chapter V. Litigant Participants Section One: Litigants TOP Article 49. Citizens, legal persons and other organizations may act as litigants in civil proceedings. A legal person shall be represented by his legal representative in the proceedings, while other organizations shall be represented by their principal leaders. Article 50. A litigant has the right to entrust his representative with applying for withdrawal, collecting and presenting evidence, taking part in arguments, requesting mediation, filing an appeal and requesting execution. A litigant may inspect materials pertaining to the case, and copy such materials and legal documents. The extent to which materials pertaining to the case can be inspected and copied, and the methods for doing so, shall be specified by the Supreme People's Court. A litigant must exercise his rights in accordance with the law, observe procedural order, and implement any legally binding verdict, ruling and mediation agreement. Article 51. Litigants of the two parties may reconcile of their own accord. Article 52. The plaintiff may abandon or alter his request for litigation. The defendant may admit or retort the request, and has the right to file a counter suit. Article 53. A joinder is a case in which the litigants of one or both parties involve two or more people with common litigant objects or objects of the same type, and which a people's court deems appropriate to handle together after obtaining the litigants' consent. Where the litigants of one party in a joinder have common rights and obligations regarding the litigant objects, the litigant acts of one of them are binding on the others if the latter recognize the acts; where the litigants have no common rights or obligations regarding the litigant objects, the litigant acts of any of them are not binding on the others. Article 54. The litigants of one party involving many people in a joinder may name a representative to handle the litigation. The representative's litigant acts are binding on the litigants he represents. However, the consent of the litigants thus represented must be obtained when it comes to changing the representative, abandoning the request for litigation, recognizing the other party's request for litigation and seeking reconciliation. Article 55. Where a case exists in which the litigants are two or more in number with litigant objectives of the same type, but the exact number is still not determined at the time of litigation, the people's court may issue a public notice explaining the case and litigant request and notifying those who have the right to join the litigation to register with the people's court within a prescribed period. The registered litigants may elect a representative; if they are unable to elect a representative, the court shall choose a representative through consultation with the registered litigants. The litigation acts of the representative are binding on the litigants he represents. When the representative acts to alter or abandon the litigant request, recognize the litigant request of the other party, or reconcile, he must have the approval of the litigants he represents. The judgment or ruling of the people's court is binding on all the registered individuals who have the right to join; it is also binding on those with the right to join who did not take part in the registration but apply to start an action within the prescribed litigation period. Article 56. A third party who deems himself entitled to an independent request with regard to the litigant objectives of both parties has the right to start an action. Where a third party is not entitled to an independent request as regards the litigant objectives in dispute, but is legally interested in the results of the civil proceedings, he may apply to take part in the action or the people's court may notify him to do so. A third party who is ordered to accept civil responsibility by the people's court has the rights and obligations of a litigant. TOP Section Two: Litigant Representatives TOP Article 57. Where the litigant is incapable of litigant action, he may be represented by his legal representative; where he has no legal representatives, the people's court shall appoint a representative for him. Where the legal representatives shirk the representation responsibilities among themselves, the people's court shall appoint one of them to represent the litigant in the action. Article 58. Litigants or legal representatives may entrust one or two persons to represent them in the action. Lawyers, close relatives of the litigants, persons recommended by social organizations or the units where the litigants work, or other citizens approved by the people's court may be entrusted as litigant representatives. Article 59. Where a representative is entrusted in the action, a letter of attorney signed or sealed by the party that entrusted the representative must be presented to the people's court. The letter of attorney must list the items of trust and the limit of powers. Where the litigant representative acts to recognize, abandon or alter the litigant request, lodge a counter-charge or file an appeal, he must have the special authorization of the represented. The letter of attorney from a Chinese citizen residing abroad must be certified by the Chinese embassy or consulate in the said country. If there is no Chinese embassy or consulate, it should be certified by the embassy or consulate of a third country that has diplomatic relations with China and then delivered to the Chinese embassy or consulate in that third country for certification, or it may be certified by a patriotic overseas Chinese organization. Article 60. Where the power of a litigant representative is changed or removed, the litigant shall inform the people's court in writing, and the latter shall notify the litigant of the other party. Article 61. Lawyers acting as litigant representatives or other representatives of the litigant have the rights to investigate, collect evidence and inspect the files of the case in question. The scope and procedure for inspecting the files of the case in question shall be formulated by the Supreme People's Court. Article 62. The parties involved in divorce cases shall appear before the court, except those incapable of expressing themselves, even though there are litigant representatives; where the party is unable to appear before the court in special circumstances, he or she must present his or her views in written form to the people's court. TOP Chapter VI. Evidence TOP Article 63. Evidence falls into the following categories (1) Documentary evidence;
(2) Material evidence;
(3) Video and audio material; (4) Testimony of witnesses; (5) Statement by litigants; (6) Conclusion of expert corroborations; (7) Records of inspection. None of the aforementioned evidence shall serve as the basis of establishment of facts before it has been ascertained and verified. Article 64. Litigants are obliged to present evidence for their assertions. The people's court shall investigate and collect evidence which litigants and their representatives cannot collect because of objective reasons, or evidence which the people's court deems necessary for the hearing. The people's court shall, in accordance with the legal procedure, examine and verify the evidence fully and objectively. Article 65. The people's court has the right to acquire evidence from the relevant units and individuals, and they shall not refuse it. The people's court shall examine the documents provided as evidence by relevant units and individuals, distinguish the true from the false and determine validity. Article 66. The evidence shall be displayed and cross-examined by the litigants at the court. Evidence involving state secrets, commercial secrets and personal secrets shall be kept confidential. Where it is necessary to display such evidence, it shall not be done in public hearing. Article 67. The people's court shall acknowledge the validity of legal acts, legal facts and documents that have been notarized through legal procedure, except those that can be overturned by counter-evidence. Article 68. Originals shall be presented as documentary or material evidence. Where there is indeed difficulty in presenting the originals, reproductions, photos, copies or abridged versions may be presented. Documentary evidence in foreign languages must be accompanied by a Chinese translation. Article 69. The people's court shall distinguish the true from the false video and audio material, and, in conjunction with other evidence, determine whether they can serve as the basis for the establishment of facts. Article 70. Whoever knows something about the case in question has the obligation to testify at the hearing. Leaders of the relevant units shall support the witnesses to testify. Where the witness has difficulty in appearing at a hearing, he may present written testimony upon the permission of the people's court. Those who are unable to express themselves accurately are unqualified to act as witnesses. Article 71. The people's court shall examine the statement of a litigant in the light of the other evidence in the case and determine whether it can serve as the basis of establishment of a fact. Where a litigant refuses to make a statement, it shall not affect the establishment of facts in the case by the people's court on the basis of the evidence. Article 72. When the people's court needs to corroborate special problems, it shall refer them to a legal corroboratory department; where there is no legal corroboratory department, the people's court shall designate a corroboratory department. The corroboratory department and its designated expert witness have the right to acquaint themselves with the files of the case requiring corroboration, and question the litigants and witnesses when necessary. The corroboratory department and the expert witness shall submit a written conclusion of corroboration and sign or seal the corroboration bill. Where it is corroborated by an expert witness, the bill shall be sealed by the unit where he works to prove his identity. Article 73. In inspecting material evidence or the scene, the inspector must produce the document of the people's court and invite the local basic organization or the litigant's unit to send people to take part. The litigant or an adult member of his family shall be present on the scene; if he refuses to be present, it shall not affect the inspection. The relevant units and individuals, in accordance with the notice of the people's court, have the obligation to protect the scene and assist the inspection. The inspector shall prepare a written record of the inspection and its results, which shall be signed or sealed by the inspector, the litigant and the invited participants. Article 74. If the evidence should possibly be destroyed or lost, or if it would be difficult to obtain afterwards, the litigant participant may request the people's court for security of evidence; the people's court may also take security measures on its own initiative. TOP Chapter VII. Period and Service Section I: Period TOP Article 75. The period includes the legal period and the period designated by the people's court. The period is computed in hours, days, months and years. The hour and the day from which the period begins are not included therein. When the final day of the period falls on a holiday, the first day after the holiday shall be the date of the expiration of the period. The period does not include the time of travel. Litigant documents which have been collected by the post office prior to the expiration of the period are not deemed to be overdue. Article 76. Where the time limit has been exceeded owing to force majeure or other legitimate grounds, the litigant may, within 10 days after the obstacle is removed, request an extension of the time limit; the people's court shall decide on granting such a request. Section II: Service TOP Article 77. The service of litigant documents must be accompanied by a certificate of delivery upon which the addressee shall mark the date of delivery and sign or seal. The delivery date marked by the addressee on the certificate of delivery is the date of service. Article 78. Litigant documents shall be delivered directly to the addressee in person. When the addressee is a citizen and is absent, the documents may be delivered to an adult member of his family who lives with him, and he shall sign upon delivery; when the addressee is a legal person or other organizations, the legal representative of the legal person, the principal persons in charge of the organizations or persons delegated by them shall accept the delivery and sign on their behalf; when the addressee delegates a litigant representative, the documents shall be served upon this representative who shall sign upon delivery; and when the addressee already delegates a person on his behalf, the documents shall be served upon this person who shall sign upon delivery. The date marked on the certificate of delivery by the adult member of the addressee's family who lives with him, by persons delegated by the legal person or other organizations, by the litigant representative or by other persons delegated to accept delivery is the date of delivery. Article 79. When the addressee or the adult member of his family who lives with him rejects the service, the deliverer shall invite the representative of the relevant basic organization or others to the spot, give an account of the matter, mark the particulars and the date of the refusal and sign or seal the certificate of delivery together with the witnesses, and leave the documents behind at the addressee's residence. This service is thus deemed to be effected. Article 80. When it is difficult to effect a personal service, the litigant documents may be entrusted to another people's court for delivery or be delivered by mail. For a service by mail, the date of acceptance marked on the receipt of the mail is the date of service. Article 81. When the addressee is a serviceman, the service shall be effected via the political organ of the unit at the regimental rank or above where he works. Article 82. Where the addressee is in prison, the service shall be effected via the prison or reform-through-labor unit where he stays. Where the addressee is placed under re-education through labor, the service shall be effected via the reformatory. Article 83. The aforementioned organ or unit, upon receiving the litigant documents, must promptly forward them to the addressee, who shall sign on receipt. The date marked on the receipt is the date of delivery. Article 84. Where the whereabouts of the addressee is unknown, or the service cannot be effected in the other ways provided for in this chapter, the service may be made by way of announcement. Sixty days after the date the announcement is made, the service is deemed to be effected. The cause and details of the service by way of announcement shall be recorded in the files of the case. TOP Chapter VIII Mediation TOP Article 85. Where a civil case it has accepted can be mediated, the people's court shall resolve it through mediation on the basis of litigants' voluntary participation and by ascertaining the facts and distinguishing right from wrong. Article 86. Mediation by the people's court may be presided over by a judge or a collegiate bench, and it shall be conducted on the spot as far as possible. For the sake of mediation, the people's court may use simple ways to summon the litigants and witnesses to the court. Article 87. The people's court may, according to the requirements of the case, invite the relevant units and people to assist in the mediation. The invited units and individuals shall assist the people's court in the mediation. Article 88. Agreement in mediation must be reached between the two parties of their own accord and no coercion is allowed. Contents of the agreement shall not go against the law. Article 89. The people's court shall prepare a bill of mediation for an agreement reached through mediation. The bill of mediation shall include the request of litigation, facts of the case and the results of the mediation. The bill of mediation shall be signed by the judge and the recording clerk, sealed by the people's court and delivered to the litigants. The bill of mediation becomes legally effective after it has been delivered to the litigants and signed by them. Article 90. A bill of mediation prepared by the people's court may not be necessary when agreement of mediation is reached for the following cases (1) Divorce cases in which the parties are reconciled through mediation; (2) Adoption cases settled through mediation; (3) Cases that become effective immediately; and (4) Other cases for which bills of mediation are not necessary. Where a bill of mediation is not necessary, the agreement shall be recorded and become legally effective after being signed or sealed by the litigants of the two parties, the judge and the recording clerk. Article 91. Where mediation has failed to reach agreement or one party goes back on his word before the delivery of the bill of mediation, the people's court shall make an adjudication promptly. TOP Chapter IX. Custody of Property and Prior Execution TOP Article 92. For cases in which the act of the litigant of one party or the other makes it impossible or hard to execute the judgment, the people's court may rule for custody of property upon the application of the adverse litigant; where the litigant does not make such an application, the people's court may rule for custody of property when necessary. In deciding to take measures for custody of property, the people's court may order the applicant to provide a guarantee; where he refuses to do so, his application shall be rejected. Upon accepting the litigant's request for custody of property, the people's court must, in urgent cases, make a ruling within 48 hours. A ruling on the custody of property shall be executed immediately. Article 93. In urgent cases, the party concerned whose interests are at stake, and whose legitimate rights and interests may be damaged beyond remedy if no application for custody of property is filed immediately, may apply for custody of property with the people's court before filing an action. The applicant shall provide a guarantee; where he refuses to do so, his application shall be rejected. Upon accepting a request, the people's court shall make a ruling on measures for custody of property within 48 hours and start execution immediately. If the applicant fails to file an action within 15 days after the people's court takes measures for custody of property, the people's court shall lift the custody. Article 94. Custody of property is confined to the scope of litigant request or to the property or articles related to the case in question. Custody of property shall include seal-up, distrain, freezing and other measures provided by law. After freezing the property, the people's court shall immediately notify the person whose property is subject to the action. Property that has already been frozen shall not be distrained or frozen for a second time. Article 95. Where the applying party provides guarantee, the people's court shall immediately lift the custody of property. Article 96. If there is a mistake in the application, the applicant shall compensate the applying party for the loss in property incurred from the custody. Article 97. In the following cases, the people's court may make a ruling for prior execution in accordance with the litigant's request (1) Claiming alimony, costs of support or upbringing, pensions for the disabled and medical expenses; (2) Claiming labour remuneration; (3) Other urgent circumstances that require prior execution. Article 98. The people's court's ruling for prior execution shall meet the following conditions (1) The rights and obligations between the litigants are clear and the applicant's livelihood or business operation would be seriously affected if no prior execution is enforced; (2) The applying party is capable of fulfilling the ruling. The people's court may order the applicant to provide a guarantee; where he refuses to do so, his application shall be rejected. The applicant who loses in the suit shall compensate the other for the loss in property incurred from the custody of property. Article 99. Where the litigant protests against the ruling for custody of property or prior execution, he may apply for reconsideration; during the reconsideration, the execution of the ruling shall not stop. TOP
Chapter X. Coercive Measures against Hindrance to Civil Actions
TOP
Article 100. The people's court may summon coercively a defendant who must appear at the hearing, but has refused to do so without proper reason after two summons. Article 101. The litigant participant and others shall abide by the rules of the court. In dealing with the people who violate the rules of the court, the people's court may admonish them to leave the court, fine or detain them. In dealing with the people who stir up a noisy uproar in court, assault the court, insult, slander, threaten and beat the judges, thus seriously disrupting the order of the court, the people's court shall subject them to criminal liability according to law; if the offence committed is not a serious one, the persons involved shall be fined or detained. Article 102. If the litigant participant or others commit any of the following acts, the people's court may, according to the gravity of the case, fine or detain them; where the act constitutes an offence, they shall be subjected to criminal liability according to law (1) Perjury and destruction of important evidence in order to hinder the people's court from trying a case; (2) Obstructing witnesses to testify by resorting to the methods of violence, threat and bribery, or instructing, bribing and coercing others to falsify evidence; (3) Concealment, transfer, sale or destruction of the property that has been sealed up or distrained, or property that has been checked and sorted out and has been ordered for safekeeping; and transfer of property that has been frozen; (4) Insulting, slandering, framing, beating or retaliating in revenge against a judicial officer, litigant participant, witness, translator, expert witness, inspector or assistant in execution; (5) Obstructing judicial officers in exercising their functions with violence, threats or by other means; (6) Refusal to carry out the people's court's decisions and rulings that have already become legally effective. In dealing with a unit that has committed one of the acts prescribed in the previous sections, the people's court may fine or detain its principal responsible person or the person directly responsible for the act; where the act constitutes an offence, he shall be subjected to criminal liability according to law. Article 103. If a unit which is obliged to assist in investigation and execution commits one of the following acts, the people's court shall order it to carry out its assistance obligations and, in addition, may fine it (1) Refusal or attempt by the relevant unit to hinder the people's court from carrying out investigations to collect evidence; (2) After receiving a notice from the people's court requesting assistance in execution, banks, credit cooperatives and other deposit-taking establishments refuse to assist in investigation, to freeze or to transfer deposits; (3) After receiving a notice from the people's court requesting assistance in execution, a relevant unit refuses to assist in detaining the income of the person concerned and in handling the transfer of relevant property rights, relevant negotiable instrument or other certificates; (4) Other acts of refusing to assist in execution. In dealing with a unit that commits one of the acts prescribed in the previous sections, the people's court may fine its principal responsible person or the person directly responsible for the act; it may also put forward judicial proposals to supervisory organs or other relevant organs to take disciplinary action against such a unit. Article 104. The fine is 1,000 yuan Renminbi at most for individuals and 1,000 yuan Renminbi at least, and 30,000 yuan at most for units. The time limit of detention is 15 days at most. The people's court shall commit the detainee to the public security organ for supervision. During the detention, if the detainee admits his error and repents, the people's court may decide to lift the detention ahead of time. Article 105. Coercive summons, fines or detention must be approved by the president of the people's court. Subpoena shall be issued for coercive summons. Fines and detention shall be accompanied by a written decision. The party may contest the decision and request a superior people's court to reconsider it. During the period of reconsideration, the execution of the decision shall not stop. 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. TOP Chapter XI. Litigation Fees Article 107. In civil proceedings, the litigant shall pay a fee for acceptance of the case in accordance with regulations. In cases involving property, other litigation fees shall be paid according to regulations, in addition to the fee for acceptance of the case. Where there is difficulty in paying the litigation fees, the litigants may, in accordance with the regulations, apply to the people's court for postponement, reduction or exemption of the fine. Methods of collecting the litigation fees shall be worked out separately. TOP Part Two Procedure of Trial Chapter XII. Ordinary Procedure of First Instance Section One: Starting an Action and Accepting a Case TOP Article 108. In starting an action, the following conditions must be met (1) The plaintiff is a citizen, a legal person or other organization; (2) There is an explicit plaintiff; (3) There are concrete litigant requests, facts and reasons; (4) The suit is a civil proceeding within the scope of jurisdiction of a people's court and under the jurisdiction of the people's court to which the suit is filed. Article 109. In starting an action, the litigant shall present a written indictment to the people's court with copies matching the number of the defendants. Where there is difficulty in writing an indictment, the litigant may file a suit in verbal form which the people's court shall record and notify the adverse litigant. Article 110. The written indictment shall contain the following (1) The name, sex, age, nationality, occupation, work unit and address of the litigant, the name and address of the legal person or other organization, and the name and position of the principal responsible person; (2) The litigant's requests and the facts and reasons on which the requests are based; (3) Evidence and its source, and the name and address of the witness. Article 111. The people's court shall accept and handle any actions that meet the conditions specified in Article 108; and it shall also handle the following actions according to their different circumstances (1) Where the case falls into the category of administrative litigation according to the Administrative Procedure Law, the plaintiff shall be informed to start an administrative litigation; (2) When two parties concerned are no longer permitted by law to start an action with the people's court because they have already voluntarily reached a written agreement on settling their contract dispute through arbitration by an arbitrator, the litigant shall be informed to make the arbitration request; (3) Where there is a dispute which, according to law, should be handled by other organs, the plaintiff shall be informed to present the case to the relevant organ; (4) If a people's court has no jurisdiction over a certain case, the litigant shall be informed to present the case to the people's court that has the jurisdiction over the case. (5) Where the litigant starts a second action for a case in which a judgment of ruling has already become legally effective, the litigant shall be informed that the case shall be dealt with as an appeal, with the exception of any case in which the people's court has approved the withdrawal of the suit;
(6) Where an action is started within the
limitation for which no suit is allowed according to law, it shall not
be accepted;
(7) A new suit for divorce or for termination of adoption relations shall not be accepted if it is filed within six months without new situations or reasons after a judgment of no-divorce is made or the litigants decide to make up through mediation, or after a judgment on maintaining the adoption relations is made or the litigants decide to maintain the adoption relations through mediation. Article 112. Upon receiving a written or verbal indictment, the people's court shall file a case and inform the litigants of the acceptance of the case within seven days where it meets the conditions for acceptance and hearing after examination; where it does not meet the conditions for acceptance and hearing, the people's court shall inform the plaintiff of this within seven days and explain the reason. If the plaintiff is not satisfied with the court decision, he may appeal. TOP Section Two: Pre-Hearing Preparations TOP Article 113. The people's court shall, within five days of filing a case, send a copy of the indictment to the defendant; the defendant shall, within 15 days of receiving the copy, present a written reply. The people's court shall, within five days of receiving the defendant's reply, send a copy of the reply to the plaintiff. Where the defendant does not present a written reply, it shall not affect the hearing by the people's court. Article 114. After the people's court decides to accept a case, it should inform the litigants of their rights and obligations, either verbally or in its notice of accepting the case and notice to the defendants. Article 115. The litigants should be informed of the composition of the collegiate bench within three days of deciding the composition. Article 116. The judge must seriously peruse the litigant files, make investigation and study, and collect necessary evidence. Article 117. The investigator sent by the people's court shall show the certificate of identity to the investigated. Records of the investigation shall be checked by the investigated and signed or sealed by the investigated and the investigator. Article 118. Where necessary, the people's court may entrust a people's court in another place with the investigation. In entrusting the investigation, the people's court must present the items and requirements in clear-cut terms. The entrusted people's court may take the initiative to make supplementary investigation. Upon receiving the letter of attorney, the entrusted people's court shall complete the investigation within 30 days; where it cannot be done for one reason or another, the entrusted people's court shall inform the trustor in writing within the above-mentioned time limit. Article 119. Where the litigants who must take part in the proceedings together do not do so, the people's court shall notify them to take part in the proceedings. Section Three: Hearing Article 120. All civil cases in the people's court shall be heard in public except those involving state secrets, personal shameful secrets or those otherwise provided for by law. Divorce cases and cases involving commercial secrets may be heard in private if the litigants so request. Article 121. In civil proceedings, the people's court shall, where necessary and possible, dispatch itinerant tribunals to hear cases on the spot. Article 122. In civil proceedings, the people's court shall notify the litigants and other litigant participants three days before the hearing. For public hearing, the people's court shall make public the names of the litigants, the subject matter of the case and the time and place of the court session. Article 123. Before the hearing, the recording clerk shall ascertain whether the litigants and other litigant participants are present, and announce the discipline of the court. At the opening of the hearing, the presiding judge shall check the litigants, announce the subject matter of the case, announce the names of the judicial officers and the recording clerk, inform the litigants of their litigant rights and obligations, and inquire whether they wish to apply for withdrawal. Article 124. The court investigation proceeds in the following order (1) Hear litigants' statements; (2) Inform the witnesses of their rights and obligations; interrogate the witnesses and read aloud the testimony of the witnesses who fail to appear before the court; (3) Display documentary evidence, material evidence and video and audio information; (4) Read aloud the conclusion of the expert corroboration; (5) Read aloud the written record of the inspection. Article 125. The litigant may present new evidence at the court. With the permission of the court, the litigant may question the witnesses, the expert witness and the inspector. The litigant may request another expert corroboration, investigation or inspection. It is up to the people's court to decide whether the request is permitted or not. Article 126. Where the plaintiff adds litigant requests, the defendant raises a counter-claim and a third party raises a litigant request related to the case in question, they may be heard in combination. Article 127. The court debate proceeds in the following order (1) Speech by the plaintiff and his litigant representatives; (2) Reply by the defendant and his litigant representative; (3) Speech or reply by the third party and his litigant representative; (4) Debate between the two parties. At the conclusion of the debate, the presiding judge asks first the plaintiff, then the defendant and then the third party, for their final say. Article 128. After the conclusion of the debate in the court, the court shall render a judgment according to law. Mediation may be made before a judgment is rendered. If mediation fails, a judgment shall be pronounced promptly. Article 129. Where the plaintiff refuses to appear before the court without proper reason after being summoned by the people's court, or he leaves the court session halfway without permission, the court may deal with it as a case revolved; if it is a counter-claim by the defendant, the court may render a judgment by default. Article 130. Where the defendant refuses to appear before the court without proper reason after being summoned by the people's court, or he leaves the court session halfway without permission, the court may render a judgment by default. Article 131. Where the plaintiff applies to revolve the action before the judgment is pronounced, the people's court shall rule whether it is permitted. Where the people's court rules against resolving the action, and the plaintiff refuses to appear before the court without proper reason after being summoned, the people's court may render a judgment by default. Article 132. A hearing shall be postponed in any of the following circumstances (1) Where the litigant and other litigant participants who must appear before the court are absent with proper reason; (2) Where the litigant suddenly submits a request to challenge the hearing; (3) Where a new witness is to be summoned, new exhibits are to be produced, a recorroboration or reinspection is required or a supplementary investigation is deemed necessary; (4) Other circumstances that entail a postponement of the hearing. Article 133. The clerk shall enter all the proceedings of the court session in the record, which shall be signed by the judges and the recording clerk. The court record shall be read aloud before the court, or the court may inform the litigants and other litigant participants to peruse the record there and then or within five days. They have the right to request an addition or a correction where they find an omission or error in their statements. If the correction is not made, their request shall be recorded on the files. The court record shall be signed or sealed by the litigants and other litigant participants; if anyone of them refuses to do so, it shall be marked and put into the files. Article 134. The people's court shall publish the judgments of all its cases heard either in public or in private. Where a judgment is pronounced at the hearing, a copy of the written judgment shall be delivered within 10 days; where a judgment is pronounced on a fixed date, a copy of the written judgment shall be issued immediately after the pronouncement. When a judgment is pronounced, the litigant must be informed of his right to appeal, of the time limitation, and of the competent appellant court. When a judgment is pronounced in a divorce case, the litigants must be informed that neither shall marry again before the judgment becomes legally effective. Article 135. A case that is heard by the people's court in accordance with the ordinary procedure shall be concluded within six months from the day the case is filed. In special circumstances the time limitation may be extended by another six months with the approval of the president of the court; approval from the people's court at the higher level is needed for further extension. TOP Section Four: Suspension and Termination of an Action TOP Article 136. A litigant action shall be suspended in any of the following circumstances (1) Where the litigant of one party dies, and it is necessary to wait for his heir to indicate whether or not he wants to take part in the proceedings; (2) Where the litigant of one party loses his capacity to conduct litigation, and a legal representative is yet to be determined; (3)
Where the legal person or other organization serving as litigant of one
party is terminated, and a person to undertake its responsibility and
obligation is not yet determined; |
