CIVIL PROCE
DURE LAW OF THE PEOPLE'S REPUBLIC OF CHINA
(Adopted at the Fourth Session of the Seventh National People's
Congress on April 9, 1991, promulgated by Order No. 44 of
the President of the People's Republic of China on April 9,
1991, and effective as of the date of promulgation)
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 Litem
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 Declaration of a Person as
Missing or Dead
Section 4 Cases Concerning the Adjudgment 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 Procedure for Hastening Debt Recovery
CHAPTER XVIII Procedure for Publicizing Public Notice for
Assertion of Claims
CHAPTER XIX Procedure for Bankruptcy and Debt Repayment of
Legal Person Enterprises
Part Three Procedure of Execution
CHAPTER XX General Provisions
CHAPTER XXI Application for Execution and Referral
CHAPTER XXII Execution Measures
CHAPTER XXIII Suspension and Termination of Execution Part
Four Special Provisions for Civil Procedure 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
people's 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 representative 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 military-man, 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
reservation is made provides security, the people's court
shall cancel the property reservation.
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 CivilProceedings
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 subordination 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 persons
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 Renminbi 1,000
yuan and shall not exceed Renminbi 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 court 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 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 responses 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
judgment, 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 item
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 anyone 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 Items (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 organizations
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 court 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
he 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 in 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 and 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 a 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 judgement 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 judgment on dissolution
of marriage, neither of the two parties shall apply for a
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 a 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 corresponding 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 representatives 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 payor concerned in the meantime to suspend the
payment, and shall, within three 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 payor 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 a 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
payor. 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 payor notified accordingly. As of the date of publication
of the judgment, the applicant shall be entitled to payment
by the payor.
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 owned by
the bankrupt enterprise; (2) taxes owed by the bankrupt enterprise;
and (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 paeral 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 fulfilment 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 judgement 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 fulfilment.
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 the 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 INVO-LVING 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 ssistance 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 come into force 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. |
