China Civil Procedure Law: Overview and Key Features

If you are doing business or involved in legal matters in China, it is important to know about the China Civil Procedure Law. This law governs the trial of civil cases and covers topics like jurisdiction, parties, procedures, evidence, judgment, and enforcement.

The China Civil Procedure Law was first introduced in 1991 and has been updated several times. The latest update, effective January 1, 2024, is the first major revision in 30 years. This amendment aims to protect the rights of the parties involved, ensure facts are accurately determined by the courts, apply the law correctly, resolve cases quickly, affirm civil rights and duties, and impose penalties for civil wrongdoing.

The China Civil Procedure Law is created by the National People's Congress, the highest authority in China. Whether you are a Chinese citizen or a foreign national doing business in China, understanding this law is key to protecting your legal rights and interests.

What is the Civil Law in China?

China's civil law is a set of rules that govern relationships between people and organizations. It covers issues like property rights, contracts, injuries, and family matters. The civil law system in China is based on the Civil Procedure Law.

The Civil Procedure Law is based on the Constitution and the country's experience in handling civil cases. Its goals are to protect the rights of the parties involved, ensure courts find facts and apply the law correctly, resolve cases quickly, affirm civil rights and duties, and impose penalties for civil violations.

In China, civil law is separate from criminal law. Civil disputes are resolved through court cases or alternative methods like mediation or arbitration. Chinese courts can enforce judgments, and those who do not comply with court orders may face legal consequences.

China's civil law is influenced by Confucianism, which values social harmony and moral principles. This influence is seen in the emphasis on mediation and reconciliation to resolve disputes peacefully.

Structure of the China Civil Procedure Law

The China Civil Procedure Law is divided into several sections, each of which outlines the different stages of a civil proceeding. Below are the main subsections of the China Civil Procedure Law:

Principles of Civil Procedure

The principles of civil procedure in China are designed to ensure that the proceedings are fair, efficient, and accessible to all parties involved. The principles include the following:

• The right to a fair trial
• The right to be heard
• The right to legal representation
• The right to evidence
• The right to appeal

Jurisdiction and Competence

The jurisdiction of a court refers to its power to hear and decide a case. In China, the jurisdiction of a court is determined by several factors, including the type of case, the location of the parties, and the amount of money at stake. The competence of a court refers to its ability to hear a case based on its subject matter. The China Civil Procedure Law outlines the rules for determining jurisdiction and competence, which vary depending on the type of case.

Parties to Civil Proceedings

The parties to a civil proceeding in China include legal persons and natural persons. Legal persons include companies, organizations, and other entities that have legal rights and responsibilities. Natural persons include individuals who are involved in the proceedings either as plaintiffs or defendants. The China Civil Procedure Law outlines the rights and responsibilities of each party, as well as the procedures for initiating and defending a civil action.

Jurisdictional Framework: China Civil Procedure Law

When it comes to civil procedure law in China, the jurisdictional framework is a crucial aspect that determines which court has the authority to hear a case. The jurisdictional framework in China is divided into three categories: territorial jurisdiction, subject matter jurisdiction, and exclusive jurisdiction.

Territorial Jurisdiction

Territorial jurisdiction refers to the geographical area over which a court has the authority to hear a case. In China, the jurisdictional framework is based on the principle of the defendant's domicile. This means that the court located in the defendant's domicile has the jurisdiction to hear the case. However, there are exceptions to this rule, such as when the defendant's domicile is unclear or when the case involves multiple defendants with different domiciles.

Subject Matter Jurisdiction

Subject matter jurisdiction refers to the types of cases that a court has the authority to hear. In China, the jurisdictional framework is divided into three levels of courts: basic, intermediate, and higher. Basic courts have jurisdiction over cases involving minor civil disputes, while intermediate courts have jurisdiction over cases involving more complex civil disputes. Higher courts have jurisdiction over cases involving significant civil disputes or those that have a significant impact on society.

Exclusive Jurisdiction

Exclusive jurisdiction refers to cases that can only be heard by a specific court or type of court. In China, several types of cases fall under exclusive jurisdiction, such as maritime disputes, intellectual property disputes, and foreign-related civil and commercial disputes.

Litigation Participants: China Civil Procedure Law

In China, the Civil Procedure Law governs the process of resolving civil disputes. The law aims to protect the litigation rights of parties and ensure that the people's courts find facts, distinguish right from wrong, apply the law correctly, and try civil cases promptly. As a participant in civil litigation, it is important to understand your rights and obligations.

Rights and Obligations

Citizens, legal persons, and organizations may become parties to a civil action. Legal persons must be represented by their legal representatives in the litigation, while other organizations must be represented by their principal heads in the proceedings. As a party to a civil case, you have the right to:

• Present evidence and arguments to support your case
• Cross-examine witnesses
• Appeal a decision made by the court

However, you also have obligations as a participant in civil litigation. These include:

• Cooperating with the court and other parties in the litigation
• Complying with court orders and judgments
• Paying court fees and other expenses related to the litigation

Representation and Assistance

In civil litigation, parties may be represented by agents ad litem or lawyers. An agent ad litem is appointed by the court to represent a party who is unable to do so themselves, such as a minor or someone with limited capacity. Lawyers may represent parties in civil cases, but they must be licensed to practice law in China.

Representative offices of foreign enterprises may also participate in civil litigation in China, but they must follow certain regulations and procedures.

China Civil Procedure Law: Evidence System

The Evidence System is an integral part of China's Civil Procedure Law. It ensures that the facts of a case are established and that the decision made is based on reliable evidence. The Evidence System is divided into two main stages: Collection and Submission, and Examination and Preservation.

Collection and Submission

The collection and submission of evidence are key steps in the Evidence System. Both parties gather all relevant evidence and submit it to the court. Evidence can include documents, physical items, witness statements, and expert opinions.

According to the Civil Procedure Law, both parties have the right to collect and submit evidence. The court ensures that all submitted evidence is relevant, admissible, and reliable. Parties must also disclose any evidence that may not support their case.

Examination and Preservation

Once evidence is submitted, the court examines it to determine its relevance and admissibility. The court may also request additional evidence if necessary. It then preserves the evidence to prevent tampering or destruction.

The Civil Procedure Law includes Property Preservation, allowing the court to safeguard property involved in the dispute or used as evidence. This ensures the property is not destroyed or disposed of before the case is resolved.

The Ascertainment of Facts is another crucial part of the Evidence System. The court must determine the facts of the case based on the evidence presented and ensure these facts are established beyond a reasonable doubt.

Civil Trial Procedures in China

When it comes to civil trial procedures in China, there are three main stages: first instance procedure, second instance procedure, and trial supervision procedure. Each of these stages has its own specific rules and regulations that must be followed to ensure a fair and just trial.

First Instance Procedure

The first instance procedure is the initial stage of a civil dispute trial. It is conducted by an Intermediate People's Court, which has jurisdiction over the case. During this stage, the court will hear evidence and arguments from both parties and make a judgment based on the facts presented.

In order to ensure a fair trial, both parties have the right to present their case and evidence, cross-examine witnesses, and request the court to investigate and collect evidence. The court will also appoint a judge to preside over the case and make a final decision.

Second Instance Procedure

If either party is dissatisfied with the judgment made in the first instance procedure, they have the right to appeal to a higher court for a second instance procedure. This is usually the Provincial Higher People's Court, which has the power to review and overturn the decision made by the Intermediate People's Court.

During the second instance procedure, the higher court will review the evidence and arguments presented in the first instance procedure and make a new judgment based on the facts. The parties also have the right to present new evidence and arguments that were not presented in the first instance procedure.

Trial Supervision Procedure

The trial supervision procedure is the final stage of a civil dispute trial in China. It is conducted by the Supreme People's Court, which has the power to review and supervise the decisions made by lower courts.

During this stage, the Supreme People's Court will review the evidence and arguments presented in the first and second instance procedures and make a final judgment based on the facts. The parties do not have the right to present new evidence or arguments during this stage.

Arbitration System

In China, arbitration is a common method of dispute resolution in civil and commercial matters. The Arbitration Law of the People's Republic of China governs arbitration proceedings in China. This law was promulgated by the Standing Committee of the National People's Congress on August 31, 1994, and came into effect on September 1, 1995.

Read more: China International Arbitration: An Overview of the Process and Procedures

Arbitration Proceedings

Arbitration proceedings in China can start through an arbitration agreement between the parties or a submission agreement. The arbitration agreement must be in writing and can be made before or after a dispute arises. A submission agreement is a written agreement to submit an existing dispute to arbitration.

The arbitration tribunal consists of one or more arbitrators, appointed by the parties or by the arbitration institution named in the arbitration agreement. Arbitrators must be independent, impartial, and qualified to resolve the dispute.

The arbitration tribunal has the power to determine its own jurisdiction, conduct the proceedings as it sees fit, and make an award based on the evidence. The arbitration award is final and binding on the parties.

Recognition and Enforcement of Arbitral Awards

China is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This convention allows foreign arbitral awards to be recognized and enforced in China.

A foreign arbitral award can be recognized and enforced in China if it meets certain requirements, such as the validity of the arbitration agreement, the fairness of the arbitration process, and the award's compatibility with Chinese law.

The recognition and enforcement of foreign arbitral awards in China are overseen by Chinese courts. Parties can apply to the Intermediate People's Court where the respondent is located for recognition and enforcement of the award.

Legal Remedies and Appeals

If you are not satisfied with the outcome of a civil case in China, there are legal remedies available to you. This section will discuss the appeal process and judicial review.

Appeal Process

If you believe the lower court's decision is incorrect, you have the right to appeal. The appeal must be filed within 15 days of the lower court's decision. A higher court will then review the case and make a decision.

During the appeal, you can present new evidence or arguments that were not presented in the lower court. The higher court will consider this new evidence and may request additional information if needed.

If the higher court upholds the lower court's decision, you may still have the option to request a judicial review.

Judicial Review

If you believe the higher court's decision is incorrect, you can request a judicial review. A judicial review examines the legal process used in the case, not the decision itself.

During a judicial review, the court checks if the legal process was fair and followed the law. It also reviews the evidence to ensure it was properly handled and considered.

If the court finds the process was unfair or the evidence mishandled, it may order a retrial. If the process was fair and the evidence properly handled, the court will uphold the lower or higher court's decision.

The judicial review process is not available in all cases and is usually reserved for cases with serious concerns about the legal process.

Enforcement of Judgments

When it comes to enforcing judgments in China, the Civil Procedure Law governs the process. Under Article 288 of the law, foreign judgments can only be enforced if the PRC and the country where the judgment originated have signed an international treaty that mandates the enforcement of the judgment.

Enforcement Procedures

To enforce a foreign judgment in China, the judgment creditor must file an application with the Intermediate People's court where the judgment debtor is located. The application should include the following documents:

• The original or a certified copy of the foreign judgment
• A certificate issued by the competent authority of the country where the judgment was made, certifying that the judgment is final and enforceable
• A Chinese translation of the foreign judgment and the certificate

Once the court accepts the application, it will notify the judgment debtor and give them a chance to respond. If the judgment debtor does not respond within the specified time limit, the court will proceed with enforcement.

Compulsory Measures

If the judgment debtor fails to comply with the enforcement order, the court can take compulsory measures to enforce the judgment. These measures include:

• Seizure and auction of the judgment debtor's property
• Freezing of the judgment debtor's bank account
• Prohibition of the judgment debtor from engaging in certain activities, such as traveling abroad or transferring property

The execution officer responsible for enforcing the judgment must follow the procedures set out in the Civil Procedure Law. If they fail to do so, they may be held liable for any losses incurred by the judgment creditor.

International Judicial Assistance

When dealing with foreign-related civil and commercial cases, the China Civil Procedure Law allows for international judicial assistance. This assistance can be provided and requested through international treaties or the principle of reciprocity.

Service of Process Abroad

If you need to serve process abroad, you can do so through diplomatic channels, embassy or consulate. Alternatively, you can use the appropriate service under the Hague Service Convention, which China has ratified. The service must comply with the requirements of the foreign jurisdiction and the Hague Service Convention.

Recognition of Foreign Judgments

China recognizes foreign judgments based on the principle of reciprocity. For a foreign judgment to be recognized and enforced in China, it must meet certain conditions. The judgment must be final and conclusive and must not violate the basic principles of Chinese law.

International treaties are important for international judicial assistance. China has signed 170 bilateral treaties on judicial assistance with 82 countries and has joined nearly 30 international conventions on judicial assistance and extradition.

Conclusion

In conclusion, understanding the China Civil Procedure Law is crucial for anyone involved in legal matters in China. This law covers important aspects like evidence collection, property preservation, and the rights of the parties involved. It also outlines the processes for arbitration and judicial review. 

Given the complexity of these legal procedures, it is essential to seek professional advice to navigate them effectively. 

Choi & Partners can provide the expertise needed to protect your legal rights and interests. Always consult with legal professionals to ensure you are well-informed and prepared for any legal challenges in China.

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Frequently Asked Questions

What is the civil procedure law amendment in China?

The civil procedure law amendment in China was passed in 2017 and updated the previous version of the law that had been in place since 1991. The amendment aimed to improve the efficiency and fairness of civil trials in China by introducing new procedures, such as pre-trial conferences, and clarifying existing ones. The amendment also introduced measures to protect the rights of parties involved in civil cases, such as the right to legal representation and the right to appeal.

What are the civil rights in China?

The civil rights in China are protected under the Constitution of the People's Republic of China and include the right to equality, freedom of speech, freedom of religion, and the right to a fair trial. However, the Chinese government has been criticized for its record on human rights, including restrictions on freedom of expression and association, and the treatment of ethnic and religious minorities.

How many amendments does China have?

China has made several amendments to its civil procedure law since it was first introduced in 1991. The most recent amendment was passed in 2017, but there have been other amendments in 2007, 2012, and 2015. In addition to amendments to the civil procedure law, China has made significant changes to other areas of its legal system, including criminal law and intellectual property law.

What is Article 29 of patent law in China?

Article 29 of the patent law in China sets out the requirements for a patent application to be granted. To be granted a patent, an invention or utility model must be novel, involve an inventive step, and have practical applicability. The article also sets out the grounds on which a patent application may be rejected, such as if the invention is not new or if it is contrary to public order or morality.

What are the three laws in China?

China has many laws covering a wide range of topics, but the three most important laws are the Constitution of the People's Republic of China, the Criminal Law of the People's Republic of China, and the Civil Procedure Law of the People's Republic of China. The Constitution is the highest law in China and sets out the fundamental principles of the country's legal system. The Criminal Law sets out the criminal offenses and their corresponding penalties, while the Civil Procedure Law governs the procedures for civil trials in China.

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