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Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China
[2015-05-03]

Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China

 

The Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, adopted at the 1636th session of the Judicial Committee of the Supreme People's Court on December 18, 2014, is hereby promulgated for implementation as of February 4, 2015.

 

 

 

The Supreme People's Court

January 30, 2015

 

 

 

Contents

 

I. Jurisdiction

II. Withdrawal

III. Participants in Legal Actions

IV. Evidence

V. Time Periods and Service

VI. Mediation

VII. Preservation and Preliminary Execution

VIII. Compulsory Measures against Obstruction of Civil Actions

IX. Litigation Costs

X. Ordinary Procedure at First Instance

XI. Summary Procedure

XII. Petty Lawsuit to Which the Summary Procedure Is Applied

XIII. Public Interest Lawsuit

XIV. Lawsuit of a Third Party for Revocation

XV. Lawsuit to Object to Execution

XVI. Procedure at Second Instance

XVII. Special Procedure

XVIII. Procedure for Trial Supervision

XIX. Procedure for the Recovery of Debts

XX. Procedure for Public Invitation to Assert Claims

XXI. Execution Procedure

XXII. Special Provisions on Civil Actions Involving Foreign Parties

XXIII. Supplementary Provisions

 

On August 31 2012, the Decision on Revising the Civil Procedure Law of the People's Republic of China was adopted upon deliberation at the 28th meeting of the Standing Committee of the 11th National People's Congress. The Interpretation on the Application of the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the "Interpretation") has been formulated according to the revised Civil Procedure Law of the People's Republic of China (hereinafter referred to as the "Civil Procedure Law") and in combination with actual civil trials and execution work of people's courts.

 

I. Jurisdiction

 

Article 1 The "major cases involving foreign parties" as prescribed in Item 1 of Article 18 of the Civil Procedure Law include cases with a large sum of disputed subject matter, cases with complex circumstances, cases in which a party concerned consists of numerous persons and other cases with significant impact.

Article 2 Patent disputes are under the jurisdiction of intellectual property right courts, the intermediate people's courts and the basic people's courts determined by the Supreme People's Court.

Cases concerning maritime affairs and maritime trade are under the jurisdiction of admiralty courts.

Article 3 The domicile of a citizen refers to the place where his/her permanent residence is registered, and the domicile of a legal person or other organization refers to the place where the place of main office of the legal person or other organization is located.

Where the place of main office of a legal person or other organization cannot be determined, the registration place of the legal person or other organization is the domicile thereof.

Article 4 The place of habitual residence of a citizen refers to the place where he/she has continuously resided for no less than one year from the time when he/she left his/her domicile to the time of institution of the action, except for the place where he/she is hospitalized.

Article 5 The lawsuit filed against a partnership of individuals or a partnership association without its own office shall come under the jurisdiction of the people's court in the place where the defendant is registered. Where there is no place of registration and different defendants reside in different administrative areas, the people's courts in the domiciles of any defendants shall have the jurisdiction over the lawsuit.

Article 6 Where a defendant's residence registration has been cancelled, the jurisdiction shall be determined in accordance with Article 22 of the Civil Procedure Law; where the residence registrations of both a plaintiff and a defendant have been cancelled, the case shall come under the jurisdiction of the people's court in the place where the defendant resides.

Article 7 Where a party concerned that has removed the residence registration thereof but has not registered a new residence has a place of habitual residence, the case shall come under the jurisdiction of the people's court in the place of habitual residence of the party concerned. Where there is no place of habitual residence, the case shall come under the jurisdiction of the people's court in the place of the original place of residence registration of the party concerned.

Article 8 Where both parties concerned are imprisoned or undergo compulsory correction, the case shall come under the jurisdiction of the people's court in the defendant's original domicile. Where the defendant has been imprisoned or undergone compulsory correction for not less than one year, the case shall come under the jurisdiction of the people's court in the place of the defendant's imprisonment or compulsory correction.

Article 9 Where several defendants to a case involving claims for support payment, upbringing payment or maintenance payment reside in different administrative areas, the case may come under the jurisdiction of the people's court in the domicile of the plaintiff.

Article 10 A case of rejection of the designated guardianship or alteration of the guardian relationship shall come under the jurisdiction of the people's court in the domicile of the person under guardianship.

Article 11 A civil case with both parties concerned being soldiers or army units shall come under the jurisdiction of a military court.

Article 12 Where either the husband or the wife has been away from the domicile for more than one year, the divorce case as filed by the other party shall come under the jurisdiction of the people's court in the domicile of the petitioner.

Where both the husband and the wife have been away from their domicile for more than one year, the case filed by one party shall come under the jurisdiction of the people's court in the place of habitual residence of the respondent; where there is no place of habitual residence, the case shall come under the jurisdiction of the people's court in the place where the respondent resides at the time of the petitioner's filing of the complaint.

Article 13 For overseas Chinese who marry in China but reside abroad, where the court in the place of their residence rejects their divorce lawsuit for the reason that the lawsuit shall come under the jurisdiction of the court in the place where the marriage is registered, and the party concerned files a divorce lawsuit with the people's court, the lawsuit shall come under the jurisdiction of the people's court in the place where the marriage is registered or the last domestic residence of either party concerned.

Article 14 For overseas Chinese who marry and reside abroad, where the court in the place of their residence rejects their divorce lawsuit for the reason that the lawsuit shall come under the jurisdiction of the court of the country of their nationality, and the party concerned files a divorce lawsuit with the people's court, the lawsuit shall come under the jurisdiction of the people's court in the former domicile or the last domestic residence of either party concerned.

Article 15 Where the parties to a divorce case live at home and abroad respectively and both of them are Chinese citizens, the people's court in the domicile of the party residing in China shall have jurisdiction over the lawsuit, no matter which party files the divorce lawsuit with the people's court. Where the party residing abroad files a lawsuit with the court in the country of his or her residence and the party residing in China files a lawsuit with the people's court, the people's court accepting the lawsuit shall have jurisdiction over the lawsuit.

Article 16 Where both overseas Chinese stay but do not settle abroad and one party concerned files a divorce lawsuit with a people's court, the lawsuit shall come under the jurisdiction of the people's court in the original domicile of the petitioner or the respondent.

Article 17 Where both divorced overseas Chinese settle abroad and one party files a lawsuit only for the division of domestic property, the lawsuit shall come under the jurisdiction of the people's court in the place where the main property is located.

Article 18 Where a contract stipulates a place of performance, the place of performance so stipulated shall be the place where the contract is performed.

Where a contract does not stipulate a place of performance or does not stipulate it clearly, if the disputed subject matter is payment of money, the place where the party receiving the money is located shall be the place where the contract is performed; if the disputed subject matter is delivery of immovable property, the place where the immovable property is located shall be the place where the contract is performed; as for any other disputed subject matter, the place where the party fulfilling obligations is located shall be the place where the contract is performed. As for a contract with instant settlement, the place of transaction shall be the place where the contract is performed.

Where a contract has not been actually performed and the domiciles of both parties concerned are not in the place of performance as stipulated by the contract, the dispute shall come under the jurisdiction of the people's court in the domicile of the defendant.

Article 19 For a contract for property leasing or a contract for financial leasing, the place where the leased property is used shall be the place where the contract is performed. Where the contract stipulates the place of performance, such agreement shall prevail.

Article 20 Where a subject is delivered through an information network under a sales contract concluded by means of an information network, the domicile of the buyer shall be the place where the contract is performed; where the subject is delivered otherwise, the place of receipt shall be the place where the contract is performed. Where the contract stipulates the place of performance, such agreement shall prevail.

Article 21 For a lawsuit filed due to a dispute over a property insurance contract, where the subject matter of insurance is a transport vehicle or the goods in transit, the lawsuit may come under the jurisdiction of the people's court in the place of the transportation's registration, the place of destination or the place where the insured accident occurs.

A lawsuit filed due to a dispute over a personal insurance contract may come under the jurisdiction of the people's court in the domicile of the insured.

Article 22 For a lawsuit filed due to a dispute over any record in the register of members, request for change of any registered item of a company, the right to know of shareholders, a resolution of a company, or combination, division, capital decrease or capital increase of a company, the people's court with jurisdiction shall be determined in accordance with Article 26 of the Civil Procedure Law.

Article 23 The application for a payment order by a creditor shall be governed by Article 21 of the Civil Procedure Law and come under the jurisdiction of the basic people's court in the domicile of the debtor.

Article 24 The "place of tort" as prescribed in Article 28 of the Civil Procedure Law includes the place where the tort is committed and the place where the tortious consequence takes place.

Article 25 Places where a tort is committed through an information network include the location of information equipment including the computer used to commit the alleged tort, while places where the tortious consequence takes place include the domicile of the infringed person.

Article 26 A lawsuit concerning property damage or personal injury resulting from poor quality of products or services shall come under the jurisdiction of the people's court in the place where the products are manufactured, the place where the products are sold, the place where the services are provided, the place of tort or the domicile of the defendant.

Article 27 Where an applicant fails to file a lawsuit or application for arbitration within the statutory term after applying for property preservation before the institution of an action, and a lawsuit arises from loss to the respondent and interested parties, the lawsuit shall come under the jurisdiction of the people's court that took the measures for property preservation before the institution of an action.

Where an applicant files a lawsuit within the statutory term or applies for arbitration after applying for property preservation before the institution of an action, and a lawsuit arises from loss to the respondent and interested parties, the lawsuit shall come under the jurisdiction of the people's court that accepts the lawsuit or the people's court that took the measures for property preservation before the institution of an action.

Article 28 The "dispute over immovable property" as prescribed in Item 1 of Article 33 of the Civil Procedure Law refers to any property right dispute arising from the confirmation of rights, division and neighboring relations of immovable property.

The jurisdiction of the people's court for any dispute over a rural land contractual operation contract, any dispute over a house lease contract, any dispute over a construction engineering contract or any dispute over a policy-based house sales contract shall be determined as per a dispute over immovable property.

Where the immovable property has been registered, the place of location recorded in the immovable property register shall be the place of location of the immovable property; where the immovable property has not been registered, the actual place of location of the immovable property shall be the place of location of the immovable property.

Article 29 The "agree in writing" as prescribed in Article 34 of the Civil Procedure Law includes the negotiated jurisdiction clause under a written contract or the agreement on selection of jurisdiction reached in writing before litigation.

Article 30 Where the people's court with jurisdiction can be determined in accordance with a jurisdiction agreement at the time of litigation, the relevant agreement shall prevail; where the people's court with jurisdiction cannot be determined, the jurisdiction shall be determined in accordance with the relevant provisions of the Civil Procedure Law.

Where a jurisdiction agreement stipulates the jurisdiction of not less than two people's courts in the places actually related to a dispute, the plaintiff may file a lawsuit with one of such people's courts.

Article 31 Where an operator uses standard terms to conclude a jurisdiction agreement with a consumer but does not prompt the caution of the consumer in a reasonable way, and the consumer claims the jurisdiction agreement to be void, the people's court shall support such claim.

Article 32 Where a jurisdiction agreement stipulates the jurisdiction of the people's court in the domicile of one party concerned, but the domicile of the said party concerned changes after the conclusion of the agreement, a lawsuit shall come under the jurisdiction of the people's court at the domicile of the said party concerned at the time of conclusion of the agreement, save as otherwise agreed by the parties concerned.

Article 33 Where a contract is transferred, the jurisdiction agreement of the contract shall be valid for the transferee of the contract, unless the transferee does not know about the jurisdiction agreement at the time of transfer or the transfer agreement has any other stipulation and the original counterpart of the contract agrees to the stipulation.

Article 34 Where a dispute over property occurs between the parties concerned due to cohabitation or after revocation of marriage or an adoptive relationship, and a jurisdiction agreement has been concluded, the jurisdiction of the people's court may be determined in accordance with Article 34 of the Civil Procedure Law.

Article 35 Where a party concerned does not respond to a lawsuit within the period for filing a defense, and the people's court finds that the case does not come under its jurisdiction before the hearing of the case of first instance begins, the people's court shall forward the case in a ruling to the people's court of competent jurisdiction.

Article 36 Where two or more people's courts have jurisdiction over the same case, the people's court putting the case on file first shall not transfer the case to another people's court of competent jurisdiction. Where the people's court finds before putting a case on file that the case has been put on file by another people's court of competent jurisdiction, it shall not put the case on its file again; and where it finds that another people's court of competent jurisdiction has put this case on file earlier, it shall forward the case to such people's court in a ruling.

Article 37 After a case has been accepted, the jurisdiction of the people's court with which the case is filed shall not be affected by the change of the domicile or the place of habitual residence of the party concerned.

Article 38 After a people's court of competent jurisdiction has accepted a case, it shall not transfer the case to other people's courts of competent jurisdiction after alternation as an excuse for the change of administrative area. The appellate case after adjudication or the case brought up for trial in accordance with the procedure for trial supervision shall be tried by the higher people's court of the people's court of original trial; and the case directed for retrial or remanded for retrial by the people's court at a higher level shall be so retried by the people's court of original trial.

Article 39 Where a people's court is confirmed as having jurisdiction upon examination of an objection to jurisdiction, the jurisdiction shall not change, for a party concerned makes a countersuit, increases or changes claims, unless any provision on court-level jurisdiction or exclusive jurisdiction is violated.

Where a party concerned raises an objection to jurisdiction in relation to a case remanded by the people's court for retrial or a case to be retried as per the procedure at first instance, the people's court shall not examine the jurisdiction.

Article 40 When two people's courts between which there is a jurisdictional dispute cannot reach unanimity upon negotiations and report the dispute to their common superior people's court to designate the jurisdiction in accordance with Paragraph 2 of Article 37 of the Civil Procedure Law, where both courts are basic people's courts under the jurisdiction of the same district or city, the intermediate people's court of that district or city shall timely designate the jurisdiction; where both courts are the people's courts in the same province, autonomous region or municipality directly under the Central Government, the higher people's court of that province, autonomous region or municipality directly under the Central Government shall timely designate the jurisdiction; where both courts are the people's courts in two provinces, autonomous regions or municipalities directly under the Central Government and the higher people's courts cannot reach unanimity upon negotiation, the Supreme People's Court shall timely designate the jurisdiction.

The application for designation of jurisdiction by superior people's courts in accordance with the preceding paragraph shall be made level by level.

Article 41 Where a people's court designates the jurisdiction in accordance with Paragraph 2 of Article 37 of the Civil Procedure Law, the people's court shall make a ruling.

The people's court at a lower level shall suspend the trial of a case submitted to the superior people's court for designation of jurisdiction.  Where the people's court at a lower level has made a judgment or ruling before a ruling of designation of jurisdiction is made, the superior people's court shall revoke the judgment or ruling of the people's court at a lower level while ruling on the designation of jurisdiction.

Article 42 In accordance with Paragraph 1 of Article 38 of the Civil Procedure Law, a people's court may forward the following civil cases of first instance to the people's court at a lower level before the hearing of the case begins:

1. cases concerning debtors in bankruptcy proceedings;

2. cases with a large number of parties concerned and inconvenient litigation; and

3. cases of other types determined by the Supreme People's Court.

Before forwarding a case to the people's court at a lower level for trial, a people's court shall report this to its superior people's court for approval. After approval by the superior people's court, the people's court shall forward the case to the people's court at a lower level for trial.

 

 

II. Withdrawal

 

Article 43 Any member of the judicial officers under any of the following circumstances shall voluntarily withdraw from the case, and a party concerned has the right to apply for the withdrawal of such a judicial officer from the case:

1. the judicial officer is a party concerned or a close relative of a party concerned in the case;

2. the judicial officer or a close relative thereof is an interested party in the case;

3. the judicial officer worked as a witness, expert, defender, agent ad litem or interpreter of the case;

4. the judicial officer is a close relative of the agent ad litem in the case;

5. the judicial officer or a close relative thereof holds shares or equity of the non-listed company which is a party concerned in the case; and

6. the judicial officer has any other relation of interest with a party concerned or agent ad litem in the case, which may obstruct a fair hearing.

Article 44 With regard to any member of the judicial officers under any of the following circumstances, a party concerned has the right to apply for the withdrawal of such judicial officer from the case:

1. the judicial officer receives the entertainment of a party concerned in the case or agent thereof or takes part in any activity at the cost of the party concerned in the case or agent thereof;

2. the judicial officer asks for or receives any property or other interest from a party concerned in the case or agent thereof;

3. the judicial officer meets with a party concerned or agent ad litem in the case in violation of the relevant provisions;

4. the judicial officer recommends or introduces an agent ad litem to a party concerned in the case, or introduces the case to a lawyer or any other person;

5. the judicial officer borrows money or any material from a party concerned in the case or agent thereof; and

6. the judicial officer commits any other illegal act, which may obstruct a fair hearing.

Article 45 A judicial officer who participates in a judicial procedure of the trial of a case shall not participate in any other procedure of trial of the case.

Where a case remanded for retrial enters into procedures of second instance after the people's court of first instance makes a ruling, members of the collegiate bench of original procedures of second instance shall not be subject to the restrictions in the preceding paragraph.

Article 46 Where a judicial officer falls under a circumstance of withdrawal, but he neither voluntarily withdraws from a case nor a party concerned applies for his withdrawal, a court president or judicial committee shall decide his withdrawal.

Article 47 A people's court shall lawfully inform the parties concerned that they have the right to apply for the withdrawal of any member of the collegiate bench, a single judge or clerk, or any other person.

Article 48 The "judicial officers" as prescribed in Article 44 of the Civil Procedure Law include the president, vice president, members of the judicial committee, presiding judge, vice presiding judge, judges, assistant judges and people's jurors of the people's court participating in the trial of a case.

Article 49 The relevant provisions on withdrawal of judicial officers shall apply to clerks and execution officers.

 

III. Participants in Legal Actions

 

Article 50 The legal representative of a legal person shall be subject to that registered according to law, save as otherwise provided by the law.  The chief in charge of a legal person, which does not need to go through registration in accordance with the law, is its legal representative; where the legal person does not have a chief in charge, the deputy head in charge of the relevant work shall be its legal representative.

Where a legal representative has changed but registration has not been completed, and the legal representative after the change requires to join in an action on behalf of the legal person, the people's court shall permit this.

With regard to any other organization, the person chiefly in charge shall be its representative.

Article 51 In litigation, where the legal representative of a legal person is changed, the new legal representative shall process the litigation, and the identity certification of the new legal representative shall be submitted to the people's court. The litigation conducted by the original legal representative shall be still valid.

The preceding paragraph shall apply to the lawsuits participated in by other organizations.

Article 52 The "other organizations" as prescribed in Article 48 of the Civil Procedure Law refer to the organizations that are lawfully established, have certain organizational bodies and property but do not have the status of legal person, and include:

1. sole proprietorships that have been registered and obtained business licenses in accordance with the law;

2. partnerships that have been registered and obtained business licenses in accordance with the law;

3. Chinese-foreign contractual joint ventures and foreign-funded enterprises that have been registered and obtained Chinese business licenses in accordance with the law;

4. branches and representative offices that are established by social organizations in accordance with the law;

5. branches that are established by legal persons and have obtained business licenses in accordance with the law;

6. branches of commercial banks, policy-based banks and non-banking financial institutions that are established and have obtained business licenses in accordance with the law;

7. enterprises run by towns and sub-districts that have been registered and have obtained business licenses in accordance with the law; and

8. other organizations meeting the requirements set out in the present article.

Article 53 For a branch established by a legal person not in accordance with the law or a branch of a legal person that is established in accordance with the law but has not obtained a business license, the legal person that has established the branch shall be the party concerned.

Article 54 Where civil activities are conducted in the form of affiliation, and a party concerned requests the affiliate and the affiliated entity to accept civil liability in accordance with the law, the said affiliate and affiliated entity shall be co-litigants.

Article 55 Where, in litigation, a party concerned is deceased and it is necessary to await the statement of the inheritor thereof whether he will participate in the litigation, the litigation shall be ruled for suspension. The people's court shall timely notify the inheritor to participate in the litigation as a party concerned, and the litigation conducted by the deceased shall be valid for the inheritor that participates in the litigation.

Article 56 Where any worker of a legal person or any other organization causes damage to any other person when conducting any work task, the said legal person or other organization shall be a party concerned.

Article 57 Where a party providing labor services causes damage to any other person due to labor services, and a victim institutes litigation, the party receiving such services shall be the defendant.

Article 58 Where a worker dispatched causes damage to any other person when conducting any task within the period of labor dispatch, the employer receiving the labor dispatch shall be a party concerned. Where a party concerned claims that the labor dispatch entity shall bear liability, the said labor dispatch entity shall be a co-defendant.

Article 59 In litigation, the operator registered on the business license of an individual business shall be a party concerned. Where the individual business has a trade name, such trade name registered on the business license shall be a party concerned, and the basic information of the operator of the said trade name shall be marked simultaneously.

Where the operator registered on the business license is inconsistent with the actual operator, the operator registered and the actual operator shall be co-litigants.

Article 60 In litigation, all the partners in an individual partnership, which has not been registered and has not obtained a business license in accordance with the law, shall be co-litigants. Where the individual partnership has a trade name as approved and registered in accordance with the law, such trade name shall be stated in legal documents. All the partners can elect representatives, and shall work out the relevant papers for the representatives as elected.

Article 61 Where both parties concerned reach an agreement on a dispute between them after mediation by the people's mediation committee, if one party concerned fails to perform the mediation agreement, and the other party files a lawsuit with a people's court, the counterpart shall be the defendant.

Article 62 In any of the following circumstances, the person conducting the relevant behaviour shall be the party concerned:

1. the party conducts civil activities in the name of a legal person or any other organization that shall be registered but is not registered;

2. the party does not have the authority of agency, overrides the authority of agency or conducts any civil activity in the name of the principal after termination of the authority of agency, unless the counterpart has reasons to believe that the party has the authority of agency; and

3. the party still conducts civil activities in the name of a legal person or any other organization after lawful termination thereof.

Article 63 In the case of amalgamation of enterprise legal persons, for a dispute over civil activities occurring before the amalgamation, the enterprise after amalgamation shall be a party concerned; in the case of division of an enterprise legal person, for a dispute over civil activities occurring before the division, the enterprises after the division shall be co-litigants.

Article 64 In the case of dissolution of an enterprise legal person, before lawful liquidation and deregistration, the said enterprise legal person shall be a party concerned; where an enterprise legal person is deregistered before lawful liquidation, the shareholders, promoters or contributors of the said enterprise legal person shall be parties concerned.

Article 65 For the borrowing of a business letter of introduction, special seal for contractual uses, blank sealed contract or bank account, the lending entity and the borrowing entity shall be co-litigants.

Article 66 For a lawsuit concerning a dispute over a guarantee contract, where the creditor claims its rights against the guarantor and the warrantee, a people's court shall take the guarantor and the warrantee as co-defendants. Where a guarantee contract stipulates a general guarantee and the creditor sues only against the guarantor, a people's court shall notify the warrantee to participate in litigation as a co-defendant; and where the creditor sues only against the warrantee, a people's court may only take the warrantee as the defendant.

Article 67 Where any person without capacity for civil acts or with limited capacity for civil acts causes damage to any other person, the said person without capacity for civil acts or with limited capacity for civil acts and the guardian thereof shall be co-defendants.

Article 68 Where there is any civil dispute between any villagers' committee or villagers' group and any other person, the villagers' committee or the villagers' group with independent property shall be a party concerned.

Article 69 Where a lawsuit is filed for any damage to the remains, osseous remains and name, portrait, reputation, honour or privacy of the deceased, a close relative of the deceased shall be a party concerned.

Article 70 Where, in a lawsuit of inheritance, only a portion of the inheritors file the lawsuit, a people's court shall notify other inheritors to participate in the litigation as co-plaintiffs; where any inheritors as notified are not willing to participate in the litigation but do not clearly express their waiver of substantive rights, the people's court shall still list them co-plaintiffs.

Article 71 Where a plaintiff sues a principal and the agent thereof and requires them to bear joint and several liability, the principal and the agent shall be co-defendants.

Article 72 Where, after a common property right is damaged by another person, and only a portion of the common property right holders file a lawsuit, the other common property right holders shall be listed co-litigants.

Article 73 Where a party concerned that should participate in litigation fails to do so, a people's court shall notify such party concerned to participate in the litigation in accordance with Article 132 of the Civil Procedure Law; the party concerned may also apply to the people's court to add the party concerned as an additional party. The people's court shall examine the application filed by the party concerned, and shall reject the application where the application reason is untenable; or shall notify in written form the additional party to participate in the litigation where the application reason is tenable.

Article 74 When a people's court adds any parties to a joint lawsuit, it shall give a notice to the other parties concerned. Where a plaintiff that should be added has clearly waived their substantial rights thereto, the plaintiff need not be added; where a plaintiff is reluctant to participate in litigation but is also reluctant to waive their substantial rights, the plaintiff shall still be added as a co-plaintiff. Such plaintiff's failure to participate in litigation will not affect the trial or decision of the people's court made in accordance with the law.

Article 75 The "numerous persons" as prescribed in Articles 53, 54 and 199 of the Civil Procedure Law generally refer to ten persons or more.

Article 76 According to Article 53 of the Civil Procedure Law, where the exact number of litigants in one party concerned consisting of numerous persons is certain at the time of filing of the lawsuit, all the parties concerned may elect common representatives, or a portion of the parties concerned may elect their own representatives; where the parties concerned cannot elect representatives, they may participate in the litigation themselves in the case of a necessary joint action, or may file another lawsuit in the case of a general joint action.

Article 77 According to Article 54 of the Civil Procedure Law, where the exact number of litigants in one party concerned consisting of numerous persons is uncertain at the time of filing of the lawsuit, the parties concerned may elect common representatives.  Where the parties concerned cannot elect representatives, a people's court may nominate representatives and then negotiate with the parties concerned; where the negotiation fails, the people's court may designate representatives among the parties concerned that file the lawsuit.

Article 78 The number of representatives prescribed in Articles 53 and 54 of the Civil Procedure Law shall be two to five, and each representative may authorize one or two persons as the agent ad litem thereof.

Article 79 For a case accepted in accordance with Article 54 of the Civil Procedure Law, a people's court may issue a public notice to notify the claimant to register with the people's court. The term of the public notice shall be determined based on the specific case and shall not be less than 30 days.

Article 80 A claimant registered with a people's court in accordance with Article 54 of the Civil Procedure Law shall prove the legal relationship between the claimant and the opposing party and the damage suffered thereby. Where the claimant fails to do so, the claimant will not be registered, and may file a separate lawsuit. The judgment made by the people's court shall be enforced within the scope of registration. Where a claimant that has not been registered files a lawsuit, and a people's court affirms the claim thereof, the people's court shall apply the judgment or ruling rendered by an appropriate people's court.

Article 81 According to Article 56 of the Civil Procedure Law, a third party with an independent claim has the right to present claims, facts and reasons to a people's court and become a party concerned; and a third party without an independent claim may apply for participation in litigation or be notified by a people's court to participate in litigation.

Where a third party does not participate in litigation in the procedure at first instance but applies to participate in the procedure at second instance, a people's court may permit the same.

Article 82 In litigation of first instance, a third party without an independent claim has no right to challenge the jurisdiction, waive or alter any claim, or apply for withdrawal of the action, but has the right to institute an appeal where ordered to assume civil liability.

Article 83 In litigation, the guardian of a person without capacity for civil acts or with limited capacity for civil acts is his statutory agent. Where the guardian has not been determined in advance, the persons qualified for guardianship may determine the guardian through negotiation; where they cannot reach unanimity through negotiations, a people's court shall designate a statutory agent for litigation among the persons qualified for guardianship. Where there is no guardian prescribed in Paragraph 1 or 2 of Article 16 or Paragraph 1 of Article 17 of the General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the "General Principles of the Civil Law") for a party concerned, a people's court may designate a relevant organization prescribed in Paragraph 4 of Article 16 or Paragraph 3 of Article 17 of the General Principles of the Civil Law to act as the statutory agent during the course of litigation.

Article 84 Where any person without capacity for civil acts or with limited capacity for civil acts and any other person cannot act as an agent ad litem in accordance with the law, the party concerned shall not entrust such person as an agent ad litem.

Article 85 According to Item 2, Paragraph 2 of Article 58 of the Civil Procedure Law, any relative with a conjugal relation, direct blood relation, collateral blood relation within three generations, close affinity, upbringing relationship or relationship of support may act as an agent ad litem in the name of a close relative of a party concerned.

Article 86 According to Item 2, Paragraph 2 of Article 58 of the Civil Procedure Law, any worker with a legal labor and personnel relationship with a party concerned may act as an agent ad litem in the name of the worker of a party concerned.

Article 87 According to Item 3, Paragraph 2 of Article 58 of the Civil Procedure Law, where a relevant social organization recommends a citizen to work as an agent ad litem, the following conditions shall be met:

1. the social organization is a non-profit legal person organization registered or exempted from registration in accordance with the law;

2. the principal is a member of the said social organization, or the domicile of a party concerned is located in the area of activities of the said social organization;

3. agency affairs are within the business scope specified in the articles of association of the said social organization; and

4. the citizen recommended is the person in charge of the said social organization or a worker with a lawful labor and personnel relationship with the said social organization.

As recommended by the All-China Patent Attorneys Association, a patent agent may work as an agent ad litem in a case of patent dispute.

Article 88 In addition to the power of attorney specified in Article 59 of the Civil Procedure Law, an agent ad litem shall also submit the relevant materials to a people's court in accordance with the following provisions:

1. a lawyer shall submit the lawyer practising license and certification materials of their law firm;

2. a grassroots legal service worker shall submit the practising license of legal service worker, a letter of introduction issued by a grassroots legal service office as well as the certification materials that a party concerned is located in the same jurisdiction;

3. a close relative of a party concerned shall submit his identity certificate and the certification materials on his close relationship with the principal;

4. a worker of a party concerned shall submit his identity certificate and the certification materials on his lawful labor and personnel relationship with the party concerned;

5. a citizen recommended by the community or employer which a party concerned belongs to shall submit his identity certificate, recommendation materials as well as the materials proving that the party concerned belongs to the said community or employer; and

6. a citizen recommended by a relevant social organization shall provide his identity certification and the certification materials meeting the conditions set out in Article 87 of the Interpretation.

Article 89 The power of attorney to be submitted to a people's court by a party concerned shall be so submitted before the court session. Where the power of attorney only states "general agency" without specific items of authorization, the agent ad litem has no right to admit, waive or alter claims, conduct reconciliation and file a counterclaim or appeal for the party concerned.

Where both parties concerned in a case suitable for the summary procedure for hearing appear before the court at the same time, and a hearing is held directly, they may orally entrust agents ad litem on the site, which shall be written down by the people's court in its records.

 

IV. Evidence

 

Article 90 Each party concerned shall provide evidence to prove the facts based on which such party concerned makes a claim or contradicts the claim of the other party concerned, save as otherwise provided by the law.

Where any party concerned fails to provide evidence or provides insufficient evidence to prove the facts before a judgment is made, the party concerned with the burden of proof shall bear adverse consequences.

Article 91 A people's court shall determine the assumption of the burden of proof on the following principles, save as otherwise provided by the law:

1. the party concerned claiming any legal relation shall assume the burden of proof for basic facts generating the said legal relation; and

2. the party concerned claiming a change or elimination of any legal relation or an impairment of any right shall assume the burden of proof for basic facts of the change or elimination of the legal relation or impairment of the right.

Article 92 Where a party concerned definitely admits any fact unfavorable thereto during trial or in any written materials such as the statement of claim, statement of defense or statement of attorney, the other party concerned does not need to assume the burden of proof.

The provision on self-admission in the preceding paragraph shall not apply to any facts involving identity relationship, national interests and public interests which shall be investigated by a people's court ex officio.

Where a self-admitted fact is inconsistent with an investigated fact, the people's court will not confirm the self-admitted fact.

Article 93 A party concerned does not need to assume the burden of proof for the following facts:

1. natural laws, theorems and laws;

2. facts that are known by all people;

3. facts that are induced as per legal provisions;

4. other facts that are induced as per known facts and routine experience and principles;

5. facts that have been affirmed in the judgment of a people's court that has taken effect;

6. facts that have been affirmed in the award of an arbitration institution that has taken effect; and

7. facts that have been proved in valid notarial documents.

Facts set out in Items 2 to 4 of the preceding paragraph shall be excluded where a party concerned has enough contrary evidence to contradict them; and, facts set out in Items 5 to 7 of the preceding paragraph shall be excluded where a party concerned has enough contrary evidence to overturn them.

Article 94 Evidence unable to be collected by a party concerned and the agent ad litem thereof themselves for reasons beyond their control as prescribed in Paragraph 2 of Article 64 of the Civil Procedure Law includes:

1. evidence that is kept by the relevant national departments and the party concerned and the agent ad litem thereof have no right to consult or take possession of;

2. evidence involving national secrets, trade secrets or individual privacy; and

3. other evidence that the party concerned and the agent ad litem thereof are unable to collect themselves for reasons beyond their control.

A party concerned and the agent ad litem thereof may apply in writing to a people's court for investigation and collection of evidence that is unable to be collected by themselves for reasons beyond their control before expiration of the period for adducing evidence.

Article 95 Where any evidence under the application of a party concerned for investigation and collection which is irrelative to any fact to be proved, is insignificant for proving any fact to be proved or is unnecessary to be investigated or collected for any other reason, a people's court shall not allow the application.

Article 96 Evidence that a people's court deems necessary for the trial of a case as prescribed in Paragraph 2 of Article 64 of the Civil Procedure Law includes:

1. evidence probably damaging national interests or public interests;

2. evidence involving identity relationships;

3. evidence involving proceedings as prescribed in Article 55 of the Civil Procedure Law;

4. evidence that there is probably malicious collusion of a party concerned to damage the legitimate rights and interests of others; and

5. evidence involving procedural matters such as ex-officio addition of a party concerned, suspension of a lawsuit, termination of a lawsuit and withdrawal.

Except for the provisions specified in the preceding paragraph, the investigation and collection of evidence by a people's court shall be conducted as per the application of a party concerned.

Article 97 For collection and investigation of evidence, a people's court shall assign two or more officers thereof. The investigation documents shall bear the signatures, fingerprints or seals of investigators, persons under investigation and the note-taker.

Article 98 Where a party concerned applies for evidence preservation in accordance with Paragraph 1 of Article 81 of the Civil Procedure Law, the said party concerned may make an application in writing before expiration of the period for adducing evidence.

Where evidence preservation may incur losses to others, a people's court shall order the applicant to provide a corresponding guarantee.

Article 99 A people's court shall determine the period for adducing the evidence of a party concerned in the preparation period before trial. The period for adducing evidence may be negotiated by the parties concerned, and shall be permitted by the people's court.

The period for adducing evidence determined by a people's court for a case of ordinary procedure at first instance shall not be less than 15 days, while that for a case of second instance for a party concerned to provide new evidence shall not be less than ten days.

After expiration of the period for adducing evidence, where a party concerned applies for the provision of rebuttal evidence or correction of defects in respect of an evidence source, form or others for provided evidence, a people's court may determine the period for adducing evidence again at its discretion, which is not subject to the restrictions set out in the preceding paragraph.

Article 100 Where a party concerned applies for extension of the period for adducing evidence, the said party concerned shall make an application in writing to the people's court before expiration of the said period.

If the reason for application is tenable, the people's court shall permit a proper extension of the period for adducing evidence, and inform the other party concerned. The extension of the period for adducing evidence shall apply to the other party concerned.

If the application reason is untenable, the people's court shall not permit the application, and inform the applicant.

Article 101 Where a party concerned provides evidence after the time limit, a people's court shall order such party concerned to explain the reasons therefor, and require such party concerned to provide corresponding evidence when necessary.

Where a party concerned provides evidence after the time limit for any objective reason, or the other party concerned does not raise an objection to any evidence provided by a party concerned after the time limit, such evidence shall not be deemed overdue.

Article 102 Where a party concerned provides evidence after the time limit intentionally or due to gross negligence, a people's court shall not adopt such evidence. However, if the evidence is related to the basic facts of a case, the people's court shall adopt it, and admonish and fine the party concerned in accordance with Article 65 and Paragraph 1 of Article 115 of the Civil Procedure Law.

Where the party concerned provides evidence after the time limit not because of intention or gross negligence, the people's court shall adopt it and admonish the party concerned.

Where a party concerned requires the other party concerned to compensate such party concerned for necessary expenses of transportation, accommodation, meals, delay of work, witness presence at court to give testimony or other expenses due to the provision of evidence after the time limit, a people's court shall support the requirement.

Article 103 Evidence shall be exhibited at court and cross-examined by the parties concerned.  Evidence not cross-examined by the parties concerned shall not be accepted as bases for affirming case facts.

The evidence admitted by the parties concerned in the preparation period before trial shall be deemed as cross-examined evidence after explanation by a judicial officer during court trial.

The evidence involving any national secret, trade secret or individual privacy or that which shall be kept confidential in accordance with legal provisions shall not be cross-examined publicly.

Article 104 A people's court shall organize the parties concerned to cross-examine the authenticity and legitimacy of the evidence as well as its relevance to the facts to be proved, and explain and argue whether the evidence is probative as well as how large the probative force is.

Evidence, which can reflect the true conditions of a case, relates to the facts to be provided and conforms to legal provisions in respect of source and form, shall be accepted as the basis for affirming case facts.

Article 105 A people's court shall fully and objectively review the evidence according to legal procedures, and apply logical deduction and routine experience and principles to judge whether the evidence is probative as well as how large the probative force is in accordance with legal provisions, and announce judgment reasons and results.

Article 106 The evidence formed or obtained in a way that seriously damages the legitimate rights and interests of others, violates prohibitive provisions of the law or seriously goes against public order and good custom shall not be accepted as bases for affirming case facts.

Article 107 In litigation, the facts admitted by a party concerned for the purpose of entering into a mediation agreement or reconciliation agreement shall not be accepted as a basis unfavourable to the said party concerned in subsequent litigation, save as otherwise provided by the law or approved by the parties concerned.

Article 108 With regard to the evidence provided by the party concerned with the burden of proof, where a people's court believes that the existence of a fact to be proved is highly probable upon examination and in combination with the relevant facts, it shall affirm the existence of the said fact.

With regard to the evidence provided by a party concerned to contradict the facts claimed by the other party concerned with the burden of proof, where a people's court believes that a fact to be provided is unclear upon examination and in combination with the relevant facts, it shall affirm that the said fact does not exist.

Where any law has any other provision on standards of proof for facts to be proved, such provision shall prevail.

Article 109 With regard to the proof of a party concerned regarding a fact of fraud, force, malicious collusion, oral will or gift, where a people's court believes that there is reasonable doubt that the existence of the said fact to be proved can be eliminated, it shall affirm the existence of the said fact.

Article 110 A people's court may require a party concerned to appear in court and receive inquiries about the relevant case facts, when it deems it necessary. Before inquiry of the party concerned, the people's court may require the party concerned to sign a guarantee.

The guarantee shall include content such as truthful statement and willingness to receive punishment in the case of any false statement. The party concerned shall affix the signature or fingerprint thereof on the guarantee.

Where a party concerned with the burden of proof refuses to appear in court, receive inquiries or sign a guarantee, and there is no other evidence to prove a fact to be proved, the people's court shall not affirm the said fact claimed by the party concerned.

Article 111 The circumstances under which it is indeed difficult to provide originals of documentary evidence specified in Article 70 of the Civil procedure law include the following:

1. the original of document evidence has been lost, destroyed or damaged;

2. the original is under the control of the other party concerned that refuses to submit the original after being lawfully requested to do so;

3. the original is under the control of any other person that has the right not to submit the original;

4. it is inconvenient to submit the original due to its large length or volume; and

5. the party concerned with the burden of proof cannot obtain the original of documentary evidence through application to a people's court for investigation and collection or otherwise.

In any of the circumstances specified in the preceding paragraph, a people's court shall examine and judge whether the copy of documentary evidence can be accepted as the basis for affirming case facts in combination with other evidence and concrete case conditions.

Article 112 Where the documentary evidence is under the control of the other party concerned, the party concerned with the burden of proof may apply to a people's court in writing before the expiration of the period for adducing evidence to order the other party concerned to submit such documentary evidence.

Where the application reason is tenable, the people's court shall order the other party concerned to submit the documentary evidence, with the expenses arising from submission of the documentary evidence to be borne by the applicant. Where the other party concerned refuses to submit the documentary evidence for no proper reason, the people's court may affirm that the content of the documentary evidence claimed by the applicant is true.

Article 113 Where the party concerned holding documentary evidence destroys the relevant documentary evidence or commits any other act making the documentary evidence unable to be used for the purpose of obstructing the use of the documentary evidence by the other party concerned, a people's court may fine and detain the party concerned in accordance with Article 111 of the Civil Procedure Law.

Article 114 Matters recorded in documents prepared by national organs or other organizations with lawful social management functions within the scope of their functions and powers shall be deemed true, unless there is sufficient contrary evidence to overturn them. A people's court can require the institution or organization which has formulated the documents to explain the authenticity of such documents when necessary.

Article 115 The certification materials submitted by the institution to a people's court shall be signed or attached with the seals of the person in charge of the institution and the person who prepared the certification materials as well as the official seal of the institution. A people's court can investigate and verify the certification materials presented by the institution with the institution and the person who prepared such materials, and can require the person who prepared such certification materials to appear in court as a witness when necessary.

Where the institution and the person who prepared the certification materials refuse the investigation and verification conducted by the people's court or the person who prepared such materials refuses to appear in court as a witness without a proper reason, such certification materials shall not be accepted as bases for affirming case facts.

Article 116 Audio-visual materials include recorded materials and image materials

Electronic data refers to the information formed or stored with electronic medium by means of email, electronic data exchange, online chat records, blog, microblog, text message, electronic signature and domain name.

The regulations on electronic data are applicable to the recorded materials and image materials stored with the electronic medium.

Article 117 Where a party concerned applies for a witness to appear in court as witness, the said party shall make an application before the expiration of the period for presenting evidence.

Where the condition specified in the first paragraph of Article 96 herein is met, a people's court can notify the witness to appear in court as witness ex officio.

The witness shall not appear in court without the notice of the people's court, except that it has been agreed by both parties concerned and approved by the people's court.

Article 118 The necessary expenses such as the expenses on transportation, accommodation and meals incurred by a witness for performing the obligation of appearing in court and serving as witness specified in Article 74 of the Civil Procedure Law shall be calculated by the standards for the traveling expenses and subsidies of personnel of government and public institutions, and the losses from delay of work shall be calculated by the average daily pay of the workers of the country in the previous year.

Where a people's court approves of a witness to appear in court to provide evidence, the said people's court shall notify the applicant to pay the expenses on provision of evidence in advance.

Article 119 A people's court shall inform the witness of his/her obligation of providing truthful evidence and the legal results of giving false testimony and order him/her to sign the guarantee before the witness appears in court, except for the witness without capacity for civil acts or with limited capacity for civil acts.

The signing of guarantee by the witness is applicable to the regulation on the signing of guarantee by the parties concerned herein.

Article 120 Where a witness refuses to sign the guarantee, the said witness shall not provide evidence and shall bear all relevant expenses on his/her own.

Article 121 Where a party concerned applies for appraisal, the said party can make an application before the expiration of the period for presenting evidence. Where the item applied for appraisal is irrelevant with a fact to be proved or of no significance to proving the fact to be proved, a people's court shall not approve such application.

Where the people's court approves the appraisal application of the party concerned, the said people's court shall organize both parties concerned to negotiate and determine the appraiser with relevant qualifications. Where the parties concerned cannot determine through consultation, the people's court shall designate an appraiser.

Where the application meets the conditions for investigation and evidence collection ex officio, the people's court shall entrust the appraisal ex officio and designate an appraiser with relevant qualifications after consulting the opinions of the parties concerned.

Article 122 A party concerned can apply for one to two persons with expertise to appear in court before the expiration of the period for presenting evidence to cross examine the appraisal opinion on behalf of the party concerned or to put forward professional questions concerning the case facts according to Article 79 of the Civil Procedure Law.

The opinion on professional issues raised by the persons with expertise in court shall be deemed as the statement of the party concerned.

Where a people's court approves of a party concerned to make the application, the relevant expenses shall be borne by the party concerned who has made the application.

Article 123 A people's court can inquire a person with expertise who appears in court. Upon the approval of the court, a party concerned can inquire a person with expertise who appears in court, and the persons with expertise respectively applied by the parties concerned can confront in court on issues involved in the case.

The persons with expertise shall not participate in trial activities other than the professional issues.

Article 124 Where a people's court deems necessary, the said people's court can make an investigation in physical evidence or the scene according to the application of a party concerned or ex officio. The people's court shall protect the other's privacy and dignity during investigation.

The people's court can require the appraiser to participate in the investigation,  and can require the appraiser to make the appraisal during the investigation when necessary.

 

V. Periods and Delivery

 

Article 125 According to the provision of the second paragraph in Article 82 of the Civil Procedure Law, the period counted by hour shall be calculated from the following hour and the period counted by day, month and year shall be calculated from the following day.

Article 126 Where the statement of claim is not complete in contents and the notification is given to the plaintiff to supplement, the period for case filing specified in Article 123 of the Civil Procedure Law shall be counted from the following day after the contents are supplemented. Where a case is transferred by a superior people's court to its subordinate people's court for filing, the period for case filing shall be counted from the following day after the receipt of the statement of claim by the subordinate people's court.

Article 127 The "6 months" specified in the third paragraph in Article 56 and Article 205 of the Civil Procedure Law and Article 374, Article 384, Article 401, Article 422, Article 423 herein and the "1 year" specified in Article 223 of the Civil Procedure Law are fixed periods, to which the regulations on suspension, interruption and extension are not applicable.

Article 128 Where a retrial case is conducted according to the procedures for first-instance or second-instance, the trial period specified in Article 149 and Article 176 of the Civil Procedure Law are applicable. The period shall be counted from the following date after the case filing for retrial.

Article 129 As to the cases applying for retrial, a people's court shall complete the investigation within three months since the date of acceptance. Nevertheless, the announcement period and the period of reconciliation between both parties concerned shall not counted into the period of investigation. Where the period needs to be extended for special reasons, approval shall be obtained from the president of the people's court.

Article 130 The charging documents delivered to a legal entity or other organizations shall be signed or sealed by the legal representative or the major person in charge or the person who is in charge of receiving letters and documents at the general office, the office for incoming and outgoing mail or the duty office of the entity. Where the said persons refuse to sign or seal upon the receipt of the charging documents, the lien service shall be applicable.

The representatives of relevant grassroots organizations or the units they work for specified in Article 86 of the Civil Procedure Law can be the staff of the residential committee or village committee where the addressee is located and the workers of the units where the addressee works.

Article 131 Where a people's court delivers the charging documents directly, the said people's court can notify a party concerned to get the charging documents at the people's court. Where the party concerned arrived at the people's court but refuses to sign on the proof of service,the charging documents shall be deemed to have been delivered.  The judicial officer and clerks shall indicate relevant information and sign on the proof of service.

The people's court can deliver the charging documents directly to the party concerned other than the domicile of such party concerned. Where the party concerned refuses to sign on the proof of service, the records of service process such as photographs and video shall be deemed as have been delivered. The judicial officer and clerks shall indicate relevant information  and sign on the proof of service.

Article 132 Where the addressee has an agent ad litem, a people's court can deliver the charging documents either to the addressee or his/her agent ad litem. Where the addressee designated the agent ad litem to receive the charging documents for him/her, the lien service shall be applicable.

Article 133 The mediation documents shall be directly delivered to the party concerned and the lien service shall not be applicable. Where the party concerned cannot sign for reasons, the mediation documents can be signed by the person designated by the said party concerned.

Article 134 According to Article 88 of the Civil Procedure Law, where a people's court entrusts another people's court to make the delivery, the entrusting people's court shall produce a letter of entrustment and attaches the charging documents and the proof of service to be delivered. The date when the addressee signs on the proof of service shall be the date of service.

Where the charging documents and the proof of service is delivered by entrustment, the entrusted people's court shall deliver the said documents and proof within ten days upon receipt of the letter of entrustment and relevant charging documents.

Article 135 Electronic service can be made through specific systems which can be instantly sent and received by means of fax, email and mobile communications.

The date when the documents delivered to the specific system of the addressee specified in the second paragraph of Article 87 of the Civil Procedure Law is the date when the corresponding system of the people's court indicates the success of the delivery. Nevertheless, where the addressee proves that the date of service in the specific system is not consistent with the date in the corresponding system of the people's court, the date when the delivery is received proved by the addressee shall prevail.

Article 136 Where the addressee agrees to take the service by electronic means, the said addressee shall confirm the address in the letter of confirmation on service address.

Article 137 Where a party concerned does not change the service address when instituting an appeal, applying for retrial or applying for execution, the service address confirmed in the first instance can be the service address of the procedures of second instance, trial supervision and execution.

Article 138 Service by publication can be made by putting up an announcement on the bulletin board at the people's court or at the domicile of the addressee or by publishing an announcement on media such as newspaper and information network. The date of announcement shall be subject to the last date when the announcement is put up or published. Where there is any special requirement on the way of service by publication, the required way shall be adopted. The announcement is deemed to have been delivered upon the expiry of the announcement period.

Where the people's court puts up the announcement at the domicile of the addressee, the process shall be recorded by taking photographs or videos.

Article 139 The service by publication shall explain the reasons for the service. Where the copy of the statement of claim or the appeal petition is delivered through service by publication, key points of the claim or the appeal as well as the legal results if the addressee makes the defense after the time limit for defense or does not make the defense shall be indicated. Where the court summon is delivered through service by publication, the time and venue to appear in court and the legal results of not appearing in court within the time limit shall be indicated. Where the judgment or ruling in writing is delivered through service by publication, the main contents of the judgment and the right to appeal of the party concerned shall be indicated. Where the party concerned has the right to appeal, the right to appeal, the deadline of appeal and the people's court to appeal shall be indicated as well.

Article 140 For cases applicable to simplified and streamlined procedures, the service by publication is not applicable.

Article 141 Where a people's court makes a regular judgment and a party concerned refuses to sign upon receipt of the judgment or the ruling in writing, such judgment or ruling shall be deemed to have been delivered and shall be indicated explicitly on the record of announcement of judgment.

 

VI. Mediation

 

Article 142 Having accepted a case, a people's court can conduct mediation upon approval by both parties concerned if it recognizes that the legal relationship is explicit and the facts are clear after investigation.

Article 143 Cases applicable to the special procedure, the procedure for the recovery of debts or the procedure for public invitation to assert claims, cases on recognition of the identities in marriage and other cases that cannot be mediated according to the nature of the cases shall not be mediated.

Article 144 Where a people's court finds that there is malicious collusion of the parties concerned, trying to damage the legitimate rights and interests of others by means of reconciliation or mediation, the people's court shall process the case in accordance with Article 112 of the Civil Procedure Law.

Article 145 When conducting the trial of civil cases, a people's court shall mediate based on the principles of voluntariness and legitimacy. Where a party concerned or both parties concerned insist(s) on not mediating, the people's court shall make the judgment in a timely manner.

In trials of divorce cases, the people's court shall conduct mediation but shall not fail to make a judgment after long time of mediation.

Article 146 In the trial of a civil case, a people's court shall not disclose the mediation process, except for that an approval is given by the parties concerned.

The contents of the mediation agreement shall not be disclosed, except those deemed as necessary to be disclosed by the people's court to protect the national interest, social and public interest and legal rights and benefits of others.

The judicial officers who host the mediation or participate in the mediation shall keep the information concerning the national secrets, business secrets, personal privacy and other information they learn about and during the mediation process that is not appropriate to be disclosed confidential, except for purposes of protecting the national interest, social and public interest and the legal rights and interest of others.

Article 147 When a party concerned cannot appear in court when a people's court is mediating the case, the entrusted agent of the said party concerned can participate in the mediation upon the approval of the people's court. The mediation agreement reached in the mediation can be signed by the entrusted agent.

Where a party concerned of a divorce case indeed cannot appear in court for the mediation for particular reasons, the said party concerned, if not unable to express his/her personal will, shall produce an opinion in writing.

Article 148 Where parties concerned request a people's court to produce the judgment according to the mediation agreement or the contents of the mediation agreement made by themselves, the people's court shall not make such judgment.

Divorce cases of persons without capacity for civil acts shall be litigated by his/her legal agent. Where the legal agent reaches an agreement with the other party concerned and requests to issue the judgment, the people's court can prepare the judgment according to the contents of the agreement.

Article 149 Where mediation documents shall come into effect upon the signature of the parties concerned, the last date when the parties concerned sign the mediation documents upon receipt shall be the effective date of such mediation documents.

Article 150 Where a people's court mediates a civil case which needs a third party without an independent claim to take the responsibility, the people's court shall obtain the approval from the said third party. Where the third party goes back on his/her words before the service of the mediation documents, the people's court shall make the judgment in a timely manner.

Article 151 According to Item 4 of the first paragraph of Article 98 in the Civil Procedure Law, where the parties concerned agree that the mediation agreement shall take effect immediately after they sign or seal, the mediation agreement shall, upon confirmation by the people's court, be put down in records or included into the file and shall have legal effects after being signed or sealed by the parties concerned, the judicial officers and the clerk.

Where a party concerned requests to prepare the mediation documents under the aforesaid situation, the people's court can prepare the mediation documents and deliver them to the parties concerned upon confirmation. Where the parties concerned refuse to accept the mediation documents, the effects of the mediation documents shall not be impacted.

 

VII. Preservation and Preliminary Execution

 

Article 152 According to Article 100 and Article 101 of the Civil Procedure Law, where a people's court adopts property preservation measures before or during the litigation and orders the interested parties or the parties concerned to provide a guarantee, the said people's court shall give a notice in writing.

Where an interested party apply for pre-litigation property preservation, the interested party shall provide guarantee. The party which applies for pre-litigation preservation shall provide guarantee in full amount of the applied property. In special cases, the people's court can process as appropriate. In case of pre-litigation act preservation, the amount of guarantee shall be determined by the people's court based on specific conditions.

During the litigation, where the people's court adopts preservation measures according to the application or ex officio, the said people's court shall determine whether the party concerned shall provide guarantee or not and the amount of guarantee according to the specific conditions of the case.

Article 153 Where a people's court applies preservation measures for seasonal goods, fresh and live goods, perishable goods and goods which cannot be preserved for a long period, the people's court can order the party concerned to process in a timely manner, and keep the costs. The people's court can sell the goods to keep the costs when necessary.

Article 154 Where a people's court seals up, detains and freezes property during the property preservation, the said people's court shall properly keeps such property. Where the property is not appropriate to be kept by the people's court, the people's court can designate the party under preservation to keep the property. Where the property is not appropriate to be kept by the party under preservation, the people's court shall designate a third party or the applicant to keep it.

The property for guaranty in the possession of the party which owns the real right for security sealed up, detained or frozen is generally kept by the party owns the right in the property. Where the property for guaranty is kept by the people's court, the right of pledge and lien shall not be eliminated due to the adoption of preservation measures.

Article 155 The property kept by the party under preservation designated by a people's court can continue to be used by the party under preservation if such use has no significant impact on the value of the property. The property kept by a people's court or by an entrusted party or the applicant shall not be the people's court or any other keeper.

Article 156 A people's court shall perform relevant procedures when taking measures and methods of property preservation.

Article 157 A people's court can apply property preservation measures to the mortgaged and pledged subject and the subject of lieu, but shall not impact the priority of compensation of the holders of such subjects.

Article 158 A people's court can take the property preservation measures to the earnings of the debtor receivable at maturity to restrict the payment of such earnings and notify relevant unit to assist with the execution.

Article 159 Where the property of the debtor does not meet the preservation request but the debtor has creditor's rights at maturity, the people's court can judge that any other party shall not repay the debt involved according to the creditor's request. Where any other party requests to repay the debt, the people's court shall draw and deposit the property or the amount.

Article 160 Where a party concerned institutes the lawsuit to a people's court other than the people's court which takes the pre-litigation preservation measures, the people's court that applies the pre-litigation preservation measures shall transfer the preservation formalities to the people's court accepts and handles the case. The judgment of the pre-litigation preservation shall be deemed as the judgment made by the people's court accepted the transfer of such preservation.

Article 161 Where a party concerned is not satisfied with the judgment of first instance and conducts the act of transferring, hiding, selling or damaging the property before the people's court of second instance receives the appealed case, the people's court of first instance shall take preservation measures according to the request of the party concerned or ex officio. The preservation judgment of the people's court of first instance shall be reported to the people's court of second instance in a timely manner.

Article 162 Where the people's court of second instance determines to continue the preservation measures adopted by the people's court of first instance or adopt new preservation measures, the people's court of second instance can either take the preservation measures on its own or entrust the people's court of first instance to execute.

Where the people's court of retrial determines to continue the preservation measures adopted by the people's court of the original trial or adopt new preservation measures, the people's court of retrial instance can either take the preservation measures on its own or entrust the people's court of original trial to execute.

Article 163 After the legal documents take effect but before they enter the implementation procedure, a creditor can apply to the people's court for preservation if the creditor discovers such emergencies as that the other party concerned transfers property which may result in failure or difficulty in executing the legal documents if the creditor does not apply for the preservation. The people's court shall withdraw the preservation if the creditor does not apply for execution within five days during the implementation period specified within the legal documents.

Article 164 The people's court shall seal up, detain or freeze the property for guaranty provided by the applicant or others.

Article 165 After a people's court adopts preservation measures, unless the said people's court and its superior people's court determine to withdraw the preservation, no unit shall withdraw the preservation within the preservation period.

Article 166 Having determined to adopt the preservation measures, the people's court shall make the judgment of withdrawing the preservation in any of the following conditions:

i. where the preservation is wrong;

ii. where the applicant withdraws the application for preservation;

iii. where the suit or the request for litigation of the applicant is rejected in the effective judgment;

iv. other cases where the people's court deems that the preservation shall be revoked.

Where the preservation measures implemented by registration are revoked, the people's court shall send a notice for execution assistance to the registration authority.

Article 167 Where a party whose property is preserved provides other properties for guaranty which are of equivalent value and can be executed, the people's court can determine to change the subject of the preservation to the property for guaranty provided by the said party.

Article 168 Where the people's court does not revoke or withdraw the preservation judgment by law, once entering the implementation procedure, such preservation judgment shall automatically turn into measures for sealing up, detaining and freezing under implementation, and the period shall be counted continuously. The executing people's court needs not to make the judgment again, except for those whose period of seal-up, detention or freezing expires.

Article 169 A people's court shall adopt the preliminary execution specified in the Civil Procedure Law after the trial but before the final judgment of the case. The preliminary execution shall be restricted within the request for litigation of a party concerned and shall be subject to the restriction of the urgent needs of the party concerned for living, production and operation.

Article 170 The emergencies specified in Item 3 of Article 106 of the Civil Procedure Law include:

i. where the infringement shall be immediately stopped and the obstruction shall be instantly removed;

ii. where an act shall be stopped immediately;

iii. where the insurance claim badly needed for recovering production and business operation shall be collected.

iv. where the social insurance and social assistance funds shall be immediately refunded;

v. where the funds, if not immediately refunded, will have great impact on the living, production and operation of the obligee.

Article 171 Where a party concerned is not satisfied with the judgment on preservation or preliminary execution, the said party concerned can apply to the people's court which has made the judgment within five days upon receipt of the judgment for reconsideration. The people's court shall make the investigation after tens days upon receipt of the application for reconsideration. Where the judgment is correct, the application of the party concerned shall be rejected. Where the judgment is inappropriate, the original judgment shall be modified or revoked.

Article 172 Where an interested party is not satisfied with the judgment on preservation or preliminary execution and applies for reconsideration, the people's court which has made the judgment shall process the application according to Article 108 of the Civil Procedure Law.

Article 173 Where after the people's court implements the preliminary execution, the applicant shall return the benefits from the preliminary execution according to the judgment taking the legal effects, Article 233 of the Civil Procedure Law shall be applicable.

 

VIII. Compulsory Measures against Obstruction of Civil Actions

 

Article 174 The defendant who must appear in court specified in Article 109 in the Civil Procedure Law refers to the defendant who has the obligation of support, upbringing, maintenance or who's absence may result in failure in finding out the facts of the case.

A people's court can compulsorily summon the defendant who must appear in court for investigation of the facts of cases if the said defendant refuses to appear in court without justifiable reasons after receiving two receipts of court summon.

Article 175 A written compulsory summon shall be used for compulsory summon, which shall be directly delivered to the party summoned. The people's court shall explain the results of not appearing in court before sending the compulsory summon, and can summon the said party to court by compulsory summon if the said party still refuses to appear in court after criticism and education.

Article 176 Where the participant of litigation or any other party who conducts any of the following behaviors, a people's court shall handle such behaviors according to Article 110 of the Civil Procedure Law:

i. where records, videos or pictures are taken without permission;

ii. where the trial activities are live broadcast by means of mobile communications without permission;

iii. any party who disturbs the order in court and obstructs the trial activities.

In case of the situation described in the aforesaid paragraph, the people's court can temporarily detained the equipment the participant of litigation or others use for recording and spreading the trial activities and order them to delete relevant contents. Where the participant or the person making the record refuses to delete, the people's court can take necessary measures to delete such contents compulsively.

Article 177 The admonishment and order to retreat from the court shall be determined by a collegiate bench or a single judge. The contents of admonishment and the facts of violator of laws who is ordered to retreat from court shall be written down in the court records.

Article 178 Where a people's court adopts the retention measures provided by the articles from Article 110 to Article 114 of the Civil Procedure Law, the said people's court shall make the written decision of retention upon the approval of its president, and the judicial police shall transfer the person retained to local public security organ in charge.

Article 179 Where the person retained is not in the jurisdiction, the people's court made the decision of retention shall send an officer to the people's court where the person retained is located for assistance and the entrusted people's court shall send an officer to assist the execution in a timely manner. Where the person retained applies for reconsideration or admits and rectifies the mistake during the retention period and needs to be released from retention before the end of the retention period, the entrusted people's court shall forward or give suggestion to the entrusting people's court, and the entursting people's court shall make the investigation and decision.

Article 180 After adopting the retention measures against the retained person, the people's court shall notify his/her relatives within 24 hours. Where the relatives cannot be notified in time or are not accessible indeed, records shall be made in the file.

Article 181 Where the retention measures shall be adopted immediately due to emergencies that the retained person refuses to be retained by means of violence or threats for bustling or attacking the court, the people's court shall report to the president for approval immediately after the retention. Where the president deems the retention to be inappropriate, the retention shall be revoked.

Article 182 Where the retained person admits his/her fault and shows regrets and rectifies the mistake, the people's court can order the retained person to write the statement of repentance and release the retained person before the end of the retention period. Early release shall be reported to the president for approval, and the written decision of early release of retention shall be made and sent to the public security authority in charge.

Article 183 The penalty and retention of articles from Article 110 to Article 113 in the Civil Procedure Law can be either applied independently or applied together.

Article 184 The same penalty and retention obstructs the act of civil litigation shall not continuously applicable. Where new act obstructs the act of civil litigation occurs, the people's court can adopt penalty and retention again.

Article 185 Where the person fined or retained is not satisfied the penalty and retention decision and applies for reconsideration, the said person shall make the application within three days upon receipt of the written decision. The superior people's court shall make the decision within five days upon receipt of the application for reconsideration and notify the subordinate people's court and the party concerned of the results of the reconsideration.

Article 186 Where the superior people's court deems the enforcement measures to be in appropriate during the reconsideration, the said superior people's court shall make a written decision to withdraw or modify the retention and penalty decision made by the subordinate people's court. In case of emergency, the said superior people's court shall send the written decision within three days after the oral notification.

Article 187 The acts obstructing judicial officers from fulfilling their duties by violence, threats or other means specified in Item 5 in the first paragraph of Article 111 of the Civil Procedure Law include:

i. Bustling or retention at the people's court, ignoring the dissuasion by the judicial officers;

ii. Intentional damage to and snatch of the legal documents and seal-up marks of the people's court;

iii. Bustling or attack at the scene of performance of official business, siege or retention of the officers executing or assisting with the official business;

iv. Damage to and snatch or detention of case materials, vehicles executing official business, other equipment for executing official business, clothes of the employees executing official business and certificates for executing official business;

v. Hindrance to official officers from inquiring, sealing up, retaining, freezing, appropriating, bidding and selling property by violence, threats or other means;

vi. Other acts obstructing the judicial officers from performing the duties by violence, threats or other means.

Article 188 The acts of refusing to perform the judgment or ruling made by the people's court which has come into effect specified in Item 6 in the first paragraph of Article 111 of the Civil Procedure Law include:

i. Hide, transfer, sell or damage property, or transfer property without any charge, trade the property at an apparently unreasonable price, waive the creditor's right at maturity, and provide guarantee for others without any charge, which results in failure in execution of the people's court;

ii. Hide, transfer, damage or dispose the property which has been provided to a people's court for guarantee without the permission of the people's court;

iii. Consume in a manner banned by the high consumption restriction order of the people's court;

iv. Refuse to fulfill the duties explicitly specified in the effective legal documents according to the execution notice of the people's court in spite the capability of fulfilling such duties;

v. Where individuals with the obligation to assist the execution refuse to assist the execution upon receipt of the execution assistance notice from the people's court.

Article 189 Where the participant of litigation or any other party who conducts any of the following behaviors, a people's court shall handle such behaviors according to Article 111 of the Civil Procedure Law:

i. Pretend to institute a lawsuit or participate in a litigation in the name of others;

ii. Where the witness provides false testimony after signing the guarantee and obstructs the people's court in trial of a case;

iii. Counterfeit, hide, damage or refuse to submit the important evidence concerning the performance capability of the executed party and obstructs the people's court in investigating the property condition of the executed person;

iv. Unfreeze the property which has been frozen by the people's court without the permission of the people's court;

v. Send secret message to the party concerned upon receipt of the execution assistance notice from the people's court and assist the said party concerned in transferring and hiding the property.

Article 190 The legal rights and interest of others specified in Article 112 of the Civil Procedure Law include the legal rights and interest of any person not involved in the case, the national interest and the social and public benefits.

Where a third party withdraws a lawsuit according to the third paragraph of Article 56 of the Civil Procedure Law, which upon investigation is approved to be a false lawsuit made through malicious collusion of the original parties concerned, Article 112 of the Civil Procedure Law shall apply.

Article 191 Where a unit commits any act provided in Article 112 or Article 113 of the Civil Procedure Law, the people's court shall fine the said unit and can fine or retain the head mainly in charge or the person directly in charge. Where the act constitutes crime, the people's court can hold the aforesaid persons responsible for criminal responsibilities.

Article 192 Where a relevant unit conducts any of the following acts upon receipt of the execution assistance notice from a people's court, the people's court shall apply Article 114 of the Civil Procedure Law:

i. Allow high consumption of the executed person;

ii. Allow the executed person to exit the country;

iii. Refuse to stop conducting the transfer of the certificates of the property right, registration of the change in belonging of the property right,and planning approval and other formalities;

iv. Delay the assistance with excuses such as demand for internal request, internal approval or internal regulations.

Article 193 When imposing an penalty on an individual or unit, a people's court shall determine the penalty amount based on the nature, seriousness and consequences of the obstruction of civil actions as well as the economic development and the subject amount of the litigation in accordance with the first paragraph of Article 115 of the Civil Procedure Law.

 

IX. Litigation Costs

 

Article 194 According to Article 54 of the Civil Procedure Law, the litigation fee is not paid upon the acceptance of cases but shall be paid in the subject amount by the losing party after the conclusion of the cases.

Article 195 Where a case is transferred to the stage of proceedings after the payment order invalidates, the creditor shall supplement the litigation fee according to the Measures for Payment of Litigation Costs.

Where the creditor lodges another lawsuit after the revocation of the payment order, the said creditor shall pay the litigation costs according to the Measures for Payment of Litigation Costs.

Article 196 Where a people's court modifies the results of original judgment, ruling or mediation, the said people's court shall determine the payment of the litigation costs of the original trial in the judgment.

Article 197 Where the subject matter of litigation is securities, the amount of the said subject matter shall be determined based on the closing price of the last trading date before the day when a party concerned lodges the lawsuit, the market price of the day or the amount carried by the securities in accordance with the rules for securities trading.

Article 198 Where the subject matters of litigation are property, land, forest and woods, vehicle, ship, historical relics and other specific items or the intellectual property whose prices are difficult to determine when the suit is lodged, the people's court shall explain to the plaintiff the litigation risk of claiming excessively high or low value and determine the amount of the subject matter based on the value claimed by the plaintiff.

Article 199 Where the ordinary procedure is applied to a case suitable for the summary procedure, the plaintiff shall pay the supplemental litigation fee within 7 days upon the receipt of the notice on litigation fee payment from the people's court.

Where the plaintiff fails to pay such litigation fee in full amount as scheduled without justifiable reasons, the case will be processed as a revoked case, and half of the charged litigation costs will be refunded.

Article 200 The litigation costs on the civil cases concerning the debtor under the bankruptcy process shall be paid according to the standard for property cases, except for the cases involving labor disputes.

Article 201 Where a case involves requests for both property litigation and non-property litigation, the litigation fee of such case shall be paid according to the standard for property cases.

Where there are a number of requests for property litigation, the litigation fees of such requests shall be summed up. Where there are a number of requests for non-property litigation, the litigation fee of such requests shall be charged as one.

Article 202 Where the plaintiff, the defendant and a third party appeal respectively, these three parties shall respectively pay the litigation fee of second instance.

Where the several members of the same party concerned appeal jointly,the litigation fee on one appeal will be charged. Where such members appeal respectively, the litigation fee will be charged on such appeals respectively.

Article 203 Where the party concerned bears the  joint and several liability loses the lawsuit, the said party concerned shall jointly assume the litigation fee.

Article 204 Where a case concerning the real right for security is concluded and the people's court judges to auction or sell the mortgaged property, the application fee shall be borne by the debtor and the guarantor.

Where the applicant lodges the suit separately, the application fee which has been paid can be deducted from the litigation fee.

Article 205 After the judgment on auction or sale of the property for guaranty is made and executed compulsorily by a people's court, the execution application fee shall be charged according to the executed amount.

Article 206 Where a people's court determines to charge half of the litigation fee, the litigation fee can be charged by half only once.

Article 207 After the validation of the judgment, the winning party shall pay in advance but shall not bear the litigation fee so that the people's court shall refund the litigation. The losing party shall pay such litigation fee to the people's court, unless the winning party agrees to bear or receive the litigation fee compensation directly from the losing party out of its free will.

Where the party concerned refuses to pay the litigation fee, the people's court can adopt compulsory execution.

 

X. Ordinary Procedures at First Instance

 

Article 208 The people's court, when receiving the civil complaint of lawsuit from a party concerned, shall register and file the case which meets Article 119 but does not belong to the conditions specified in Article 124 of the Civil Procedure Law. Where the people's court cannot determine whether the case meets the complaining requirements on site, it should accept the complaining materials and produce a written certificate indicating the date of receipt.

Where relevant materials shall be provided, the people's court shall notify the party concerned in a timely manner. After relevant materials are provided, the people's court shall determine whether to file the case or not within seven days.

Where the case is found to have failed to satisfy the prosecution conditions or stipulation of Article 124 of the Civil Procedure Law, the people's court shall reject the lawsuit.

Article 209 Where the detailed information provided by the plaintiff such as the name or title and domicile of the defendant is explicit enough to tell the defendant from others, the case can be deemed to have a specific defendant.

Where the information on the defendant indicated in the statement of claim is not sufficient to identify the specific defendant, the people's court can inform the plaintiff to provide additional information. Where the specific defendant still cannot be determined after the plaintiff provides supplementary information, the people's court shall determine not to accept the complaint.

Article 210 Where there is any abuse or personal attack in the plaintiff's statement of claim, the people's court shall notify the plaintiff to lodge the suit after modifying the statement of claim.

Article 211 Where the case is beyond the right of jurisdiction of a people's court, the said people's court shall notify the plaintiff to lodge the lawsuit to another people's court with the right of jurisdiction. Where the plaintiff insists on lodging the lawsuit, the people's court shall determine not to accept the lawsuit. Where a people's court discovered that the case is beyond its right of jurisdiction, the said people's court shall transfer the case to another people's court with the right of jurisdiction.

Article 212 As for a case rejected by a people's court, if the plaintiff lodges the lawsuit again and where the case meets the complaining requirements but does not belong to the conditions specified in Article 124 of the Civil Procedure Law, the people's court shall accept the lawsuit.

Article 213 The people's court shall inform the plaintiff to prepay the litigation fee that shall be paid in advance. Where the plaintiff fails to prepay after notification or still fails to prepay the litigation fee when the application for reduction, delay or exemption of the litigation fee of the said plaintiff is not approved, the people's court shall determine to process the case as a revoked case.

Article 214 Where the plaintiff lodges the lawsuit again with the same claim after withdrawing the lawsuit or after the people's court processes the lawsuit as a revoked case, the people's court shall accept the lawsuit.

The divorce case revoked by the plaintiff or processed as a revoked case lodged again within 6 month without new reasons or information shall not be accepted according to Item 7 of Article 124 of the Civil Procedure Law.

Article 215 According to Item 2 of Article 124 of the Civil Procedure Law, when a party concerned lodges a lawsuit to a people's court despite the arbitration clause in the written contract or the written arbitration agreement reached between both parties concerned after disputes, the people's court shall inform the plaintiff to apply for arbitration to an arbitration authority. Where the plaintiff insists on lodging the lawsuit, the people's court shall judge not to accept the lawsuit, unless the arbitration clause or the arbitration agreement has not been established or is invalid, expired or cannot be executed due to inexplicit contents.

Article 216 Where the defendant raises an objection against the accepted civil case for the reason of the written arbitration agreement before the people's court holds the first instance, the people's court shall make an investigation.

The people's court shall reject the objection if the investigation comes to the following conclusions that:

i. the arbitration authority or people's court has confirmed the arbitration as effective;

ii. the party concerned does not raise any objection against the effects of the arbitration agreement before the arbitration tribunal holds the first instance;

iii. the arbitration agreement meets Article 16 of the Arbitration Law but does not constitute the situations specified in Article 17.

Article 217 Where the whereabouts of one party of a couple is unknown and the other party lodges a lawsuit to a people's court, requesting for divorce but not applying to announce the unknown party to be missing or dead, the people's court shall accept the case and shall service the charging documents to the unknown party.

Article 218 In a case concerning support payment, upbringing payment or maintenance payment, where a party concerned lodges a lawsuit requesting for increase or reduction the payment out of new reasons after the ruling takes legal effects, the people's court shall accept and handle the lawsuit as a new case.

Article 219 Where a party concerned lodges a lawsuit after the effective period of litigation, the people's court shall accept. Where the other party concerned raised an objection against the effective period of litigation after case acceptance, the people's court rejects the claims of the plaintiff if it determines that the reasons for objection is tenable after trial.

Article 220 The commercial secrets specified in Article 68, Article 134 and Article 156 of the Civil Procedure Law refer to the technical secrets, commercial intelligence and information involved in the production process, formula, trading contact, purchase and distribution channels which the party concerned does not want to disclose.

Article 221 Where the parties concerned lodge lawsuits respectively to a people's court against the disputes arising from the same fact, the people's court can conduct trials collectively.

Article 222 Where the plaintiff directly indicates a third party in the statement of claim, such claim shall be deemed as that the plaintiff requests the people's court to add the aforesaid third party to participate in the litigation. The people's court shall investigate and determine whether to notify the third party to attend the litigation or not.

Article 223 Where a third party raises objection against the right of jurisdiction when submitting the statement of defense but also makes defense against the contents of the statement of claim, the people's court shall make an investigation on such objection according to the first paragraph in Article 127 of the Civil Procedure Law.

Where the party concerned does not raise any objection against the right of jurisdiction and lodges defense, statement or countersuit against the physical contents of the case, such defense, statement or countersuit can be deemed as response to the lawsuit specified in the second paragraph of Article 127 of the Civil Procedure Law.

Article 224 According to Item 4 of Article 133 of the Civil Procedure Law, the people's court can make pre-trial preparation by means of evidence exchange and pre-trial meetings upon the expiry of the period of defense.

Article 225 According to the specific information of a case, the pre-trial meeting can include the following contents to:

i. Specify the lawsuit of the plaintiff and the defense opinions of the defendant;

ii. Investigate in and handle the addition of the party concerned, application for modifying the lawsuit and the countersuit as well as the lawsuit related to the case raised by a third party;

iii. Collect evidence, entrust verification, require the parties concerned to provide evidence, make inspection and investigation and conduct evidence preservation according to the application of the parties concerned;

iv. Organize the evidence exchange;

v. Summarize the focus of disputes;

vi. Conduct mediation.

Article 226 The people's court shall summarize the focus of disputes and consult the parties concerned about the focus of disputes according to the lawsuit, defense opinions and evidence exchange of the parties concerned.

Article 227 The people's court shall apply the ordinary procedure to try the case and shall summon the parties concerned by receipt of court summon three days before the court session. The people's shall notify in writing the agent ad litem, witnesses, appraisers, investigators and interpreters and translators to appear in court. Where the parties concerned or other litigation participants are off in elsewhere, a reasonable period of travel time shall be given.

Article 228 The court trial shall center on the facts, evidence, application of laws and other key issues where the parties concerned have disputes.

Article 229 Where the parties concerned raises different opinions on the facts and evidence that they have acknowledged during the preparation stage in the court trial, the people's court shall order such parties to clarify their reasons and can order them to provide relevant evidence when necessary. The people's court shall conduct the investigation based on the capacity to action of the parties concerned, evidence and the specific information of the case. Where the reasons are justifiable, such different opinions can be listed into focus of disputes for trial.

Article 230 The people's court can conduct the court investigation and court debate together according to the specific circumstance of the case upon the approval of the parties concerned.

Article 231 Where a party concerned presents new evidence in court, the people's court shall process according to the second paragraph of Article 65 of the Civil Procedure Law and the Interpretation hereof.

Article 232 After the people's court accepts the case and before the end of the court argument, where the plaintiff makes new lawsuits while the defendant lodges a countersuit and the third party raises a lawsuit concerning this case which can be tried collectively, the people's court shall try the case collectively.

Article 233 The party concerned of the countersuit shall be limited to the scope of the party concerned of the action in chief.

Where the countersuit and the action in chief are based on the same legal relationship, or there is causal relationship between the lawsuits or the lawsuits of the countersuit and the action in chief are based on the same fact, the people's court shall conduct the trial of such lawsuits collectively.

Where the countersuit shall belong to the special jurisdiction of another people's court, or the countersuit has no relation to the subject matter of the action in chief or the facts and reasons for the lawsuit, the people's court shall determine not to accept the countersuit and inform the party concerned to lodge a lawsuit separately.

Article 234 The legal agent of the party concerned without capacity for civil acts of a divorce case shall appear in court. Where the legal agent cannot appear in court, the people's court shall make the judgment by law based on the investigation in facts.

Article 235 Where the legal agent of the plaintiff who has no capability for civil acts refuses to appear in court without justifiable reasons after receiving the receipt of court summon, the case shall be processed as a revoked case by referring to Article 143 of the Civil Procedure Law. Where the legal agent of the defendant who has no capability for civil acts refuses to appear in court without justifiable reasons after receiving the receipt of court summon, the case can be judged without the presence of the defendant by referring to Article 144 of the Civil Procedure Law. The people's court may have the legal agent in court by compulsory summon when necessary.

Article 236 Where a third party with an independent right of request refuses to appear in court without justifiable reasons after receiving the receipt of court summon from the people's court or retreats from the court during trial without the permission of the people's court, the case shall be processed as a revoked case by observing Article 143 of the Civil Procedure Law.

Article 237 After a third party with an independent right of request participates in the litigation, the plaintiff applies for case revocation and after the people's court approves of the plaintiff to withdraw the lawsuit, the said third party with an independent right of request shall be the plaintiff of a new case, the plaintiff and defendant of the original case shall be the defendant of the new case and the litigation shall continue.

Article 238 Where a party concerned applies to withdraw a lawsuit or where a case can be processed as a revoked lawsuit, the people's court can disapprove the revocation or not process as a revoked lawsuit if the party concerned involves violation against laws which shall be settled by law.

Where the plaintiff requests to withdraw the lawsuit after the conclusion of the court argument on which the defendant does not agree, the people's court can disapprove such request.

Article 239 Where a people's court approves the plaintiff of the action in chief to withdraw the lawsuit, it should continue the trial of the countersuit. Where the defendant requests to withdraw the countersuit, the people's court shall approve the request.

Article 240 Where a third party without independent right of request refuses to appear in court without justifiable reasons after receiving the receipt of court summon of the people's court or retreats from the court during trial without the permission of the people's court, such refusal or retreat does not impact the trial of the case.

Article 241 Where the defendant refuses to appear in court without justifiable reasons after receiving the receipt of court summon or retreats from the court during trial without the permission of the people's court, the people's court shall hold the trial or continue the trial as scheduled and can make the judgment without the presence of the party concerned by law after investigating the lawsuit of the party concerned appearing in court, the reasons for the lawsuit and argument of both parties concerned and the evidence provided as well as other litigation materials.

Article 242 Where the people's court of first instance discovers fault in judgment and a party concerned appeals during the period of appeal after the announcement of the judgment of first instance, the people's court of first instance can put forward an opinion that there is fault in judgment and report to the people's court of second instance which shall conduct the trial according to the procedure of second procedure. Where the party concerned does not appeal, the trial supervision process shall be performed.

Article 243 The trial period specified in Article 149 of the Civil Procedure Law refers to the period from the day of case filing till the service day of the judgment announcement or the mediation documents. However, the announcement period, verification period, the reconciliation period between the parties concerned, the period when the parties concerned raises the objection against the right of jurisdiction and the period for the settlement of dispute over the jurisdiction of the people's court shall not be counted in.

Article 244 Where the judgment or ruling of cases for which appeal can be made cannot be delivered to the parties concerned at the same time, the period of appeal shall be counted respectively from the date when the parties receives the judgment or ruling.

Article 245 The clerical errors specified in Item 7 in the first paragraph of Article 154 of the Civil Procedure Law refer to the writing mistake or miscalculation of the legal documents, missing or miscalculation of litigation fee and other writing errors.

Article 246 When the proceedings are resumed when the reasons resulting in the judgment of suspending the proceedings, there is no need to withdraw the original judgment for the judgment of suspending the proceedings immediately becomes invalid immediately after the people's court notifies or approves the parties concerned to continue the proceedings.

Article 247 Where a party concerned lodges a new lawsuit about the matters about which the said party concerned has lodged a lawsuit during the proceedings or after the validation of the judgment, which meets the following conditions, shall constitute repeated lawsuit:

i. The parties concerned of the second lawsuit are the same as the first lawsuit;

ii. The subject matter of the second lawsuit is the same as the first lawsuit;

iii. The lawsuit of the second lawsuit is the same as the first lawsuit, or the litigation of the second lawsuit substantially disapproves the judgment of the first lawsuit.

Where the party concerned lodges repeated lawsuits, the people's court shall determine not to accept such lawsuits. Where the people's court has accepted the lawsuits, it shall determine to reject the lawsuits, save as otherwise provided by laws or judicial interpretations.

Article 248 Where new facts occur after the judgment takes legal effect and a party concerned lodges a lawsuit again, the people's court shall accept and process by law.

Article 249 Where the disputed civil rights and obligations are transferred during the proceedings, such transfer shall not impact the litigation subject qualification and the litigation status of the party concerned. The judgment or ruling made by the people's court, which has taken legal effect, has binding force on the transferee.

The people's court can approve a transferee without independent right of request to participate in the proceedings as a third party. Where the transferee requests to assume the proceedings for a party concerned, the people's court can determine to approve or disapprove based on the specific circumstances of the case. Where the people's court disapproves such request, it can add the transferee as a third party without independent right of request.

Article 250 Where the people's court approves the transferee to assume the proceedings for the party concerned in accordance with Article 249 herein, the said people's court shall determine to change the party concerned of the case.

Where the party concerned is changed, the proceedings shall be continued with the transferee as a party concerned and the original party concerned shall retreat from the proceedings. The litigation acts completed by the original party concerned shall have binding force on the transferee.

Article 251 Where the judgment of first instance of a case is revoked and the case is remanded for retrial and the parties concerned apply for modification or addition to the lawsuit or lodge a countersuit or the third party lodges a lawsuit in relation to the case, the case shall be processed according to Article 140  of the Civil Procedure Law.

Article 252 Where a case whose judgment of first instance is judged to be revoked or remanded for retrial and the parties concerned apply for modification or addition to the lawsuit or lodge a countersuit in the following circumstances, the people's court shall approve such application:

i. The people's court of first instance did not summon for default judgment which impacted the parties concerned exerting their litigation rights;

ii. New party concerned is added;

iii. The subject matter is lost or changed which result in the failure in realizing the original lawsuit;

iv. The parties concerned apply for modification or addition to the lawsuit or lodge a countersuit which cannot be settled through a separate suit.

Article 253 Where a case is announced in court, the people's court shall inform the party concerned or the agent ad litem of the time and location to get the judgment as well as the legal consequences of not getting the judgment on time, unless the party concerned required to delivery the judgment in court. The above information shall all put down in records.

Article 254 Where a citizen, legal entity or other organization applies to review the judgment or ruling which has taken effect, such application shall be made to the people's court which has made the judgment. The application shall be made in writing and shall indicate the specific case number or the name or tile of the parties concerned.

Article 255 The people's court shall process the applications to review the judgment or ruling according to the following situation:

i. Where the judgment or ruling has been disclosed to the public through the information network, the people's court shall guide the applicants to review by themselves;

ii. Where the judgment or ruling has not been disclosed to the public and the application meets relevant requirements, the people's court shall provide the convenient review service in a timely manner;

iii. Where the judgment or ruling has not become effective or has become invalid, the people's court shall not provide the judgment or ruling for review and shall inform the applicant;

iv. Where the judgment or ruling which has taken effect is not made by the people's court, the people's court shall notify the applicant to make the application to the people's court which has made the effective judgment.

v. Where the contents cover national secrets, business secrets, personal privacy, the application shall not be approved and the applicant shall be informed.

 

XI. Summary Procedure

 

Article 256 The "clear facts" defined in Article 157 of the Civil Procedure Law about simple civil cases means that the statements made by the parties concerned are generally consistent and the parties concerned can provide corresponding evidence so that the people's court can find the facts without making investigation or collecting evidence. The "right-obligation relationship is explicit" means that it is specified who should take the responsibilities and who is the one holding the rights. "No great dispute" means that the parties concerned have no substantial dispute over the rights and wrongs, the assumption of liabilities and the subject matter of the lawsuit.

Article 257 The following cases shall not apply the summary procedure:

i. Cases where the whereabouts of the defendant is unknown;

ii. Cases remanded for retrial;

iii. Cases where a party concerned involves a number of persons;

iv.Cases to which the procedure for trial supervision is applicable;

v. Cases involving national interests or public interests;

vi. Cases where the third party lodges a lawsuit requesting to modify or withdraw the effective judgment, ruling or the mediation documents;

vii. Cases where the summary procedure is not applicable.

Article 258 A case where the summary procedure is applicable, if both parties concerned agree to apply the summary procedure after the expiration of the trial period, the trial period can be extended upon the approval of the president of the people's court. The extended trial period shall not exceed six months.

Where the people's court finds that the case is complicated and needs to be transferred to the ordinary procedure for trial, the said people's court shall make the judgment before the expiration of the trial period and shall notify both parties concerned of the members of the collegiate bench and relevant issues.

Where the case is transferred to the ordinary procedure for trial, the trial period shall be counted from the date when the people's court files the case.

Article 259 Both parties concerned can make application to the people's court for the trial way, and the people's court determines whether to approve the application or not. The trial can be held by means of audio and video transmission technology upon the approval of both parties concerned.

Article 260 Cases where the ordinary procedure has been applied cannot be transferred to the summary procedure after the opening of trial.

Article 261 Cases where the summary procedure is applied, the people's court shall summon both parties concerned and notify the witnesses and deliver the charging documents except the judgment by oral message, telephone, text message, fax, email and other convenient ways.

Where the trial opening notice sent by convenient ways is not confirmed by the parties concerned or there is not evidence proving the parties concerned have received the notice, the people's court shall not make the default judgment.

In a case where the summary procedure is applied, the judge shall conduct the trial independently and the clerk shall make records.

Article 262 The judgment, ruling and mediation documents made by the people's court must be affixed with the seal of the grassroots people's court, which shall not be replaced by the seal of the people's court.

Article 263 The files of cases where the summary procedure is applied shall include the following materials:

i. The statement of claim or the written records of the oral statement of claim;

ii. The statement of defense or the written records of the oral statement of defense;

iii. The identity documents of the parties concerned;

iv. The power of attorney entrusting an agent to take charge of the lawsuit or the written records of the oral entrustment;

v. Evidence;

vi. Records of interrogation with the parties concerned;

vii. Written records of the proceedings (including mediation);

viii. Judgment, ruling, mediation documents or mediation agreement;

ix. Records of service and announcement of judgment;

x. Execution of the judgment;

xi. Receipt of litigation fee;

xii. The written notification of the relevant procedure application of the cases where Article 162 of the Civil Procedure Law is applicable.

Article 264 Where both parties concerned of a case agree to apply the summary procedure according to the second paragraph of Article 157 of the Civil Procedure Law, the parties concerned shall submit the application to the people's court before the opening of trial. The application made in oral form shall be put down in records which shall be signed or sealed by both parties concerned upon confirmation.

Where the parties concerned of the cases specified in Article 257 herein agree to apply the summary procedure, the people's court shall not approve.

Article 265 Where a plaintiff lodges the lawsuit in oral form, the people's court shall put down in records exactly the name, gender, working company, domicile, contact information and other basic information of the parties concerned as well as the lawsuit, the facts and the reasons. The plaintiff shall sign or seal on the records upon confirmation. A receipt shall be made for the evidence materials provided by the parties concerned.

Article 266 The period for presenting evidence applicable to the summary procedure can be determined by the people's court or agreed by the parties concerned through consultation upon the approval of the people's court, however, within 15 days. Where the defendant requests for written defense, the people's court can reasonably determine the period for defense based on the approval of the defendant.

The people's court shall inform both parties concerned of the period for presenting evidence and the date of opening the trial and explain the parties concerned about the legal consequences of overdue evidence presentation and refusal to appear in court. Both parties shall sign or seal on the written records and the proof of service of the court summon.

Where both parties concerned indicate that they do not need the period for presenting evidence or the period for defense, the people's court can immediately hold the trial or determine the date of trial opening.

Article 267 The preparation for the cases where the summary procedure is applicable can be made in convenient way.

Article 268 Where a party concerned does not have an entrusted lawyer or grassroots legal service worker to take charge of the proceedings, the people's court can make necessary explanation or introduction to relevant contents such as withdrawal, confession and the burden of proof and appropriately prompt the party concerned to correctly exert the litigation rights and perform the litigation responsibilities.

Article 269 Where a party concerned raises objection against the application of the summary procedure, which is determined to be established after the investigation of the people's court, the case shall be transferred to the ordinary procedure. Where such objection shall not be established upon the investigation of the people's court, the party concerned shall be notified orally and written records shall be made.

Where a case is transferred to the ordinary procedure, the people's court shall notify in writing both parties concerned of the members of the collegiate bench and relevant issues.

Before the case is transferred to the ordinary procedure, the facts which have been confirmed by both parties need not to be further proved or cross-examined.

Article 270 If a case where the summary procedure is applicable involves one of the following situations, the people's court can make the determined facts or the reasons for the judgment simple when making the judgment, ruling and mediation documents:

i. The parties concerned have reached the mediation agreement and request to make the civil mediation documents;

ii. A party concerned explicitly acknowledges the whole or part of the lawsuit of the other party;

iii. if a case involves business secrets or personal privacy, a party concerned requests to simplify the contents of the judgment reasons for which are approved by the people's court;

iv. Both parties concerned agree to simply.

 

XII. Petty Lawsuit to Which the Summary Procedure Is Applied

 

Article 271 The people's court can apply Article 162 of the Civil Procedure Law in trying small-amount lawsuit, of which the judgment of first instance is final.

Article 272 The average pay of the employees of the previous year in the provinces, autonomous region or municipality directly under the Central Government specified in Article 162 of the Civil Procedure Law refers to the published average pay of the employees of the previous year in the provinces, autonomous region or municipality directly under the Central Government. Before the publication of the average pay of the employees of the previous year, the average pay shall be subject to the published average pay of the employees of the latest year.

Article 273 The maritime court can try maritime and small-amount maritime trade lawsuits. The subject amount of the case shall be subject to the limit of 30% of the average pay of the employees of the previous year in the provinces, autonomous region or municipality directly under the Central Government where the maritime court or its local branches which actually accepts and takes charge of the case.

Article 274 A case concerning payment can be tried by the procedure for petty lawsuits:

i. Disputes over a sales contract, borrowing contract or lease contract;

ii. Disputes over the amount, time and terms of payment of the support payment, upbringing payment, or maintenance payment where the relationship of the parties concerned are clear;

iii. Disputes over the amount, time and terms of payment of the compensation for the damages of a traffic accident or other personal injuries where the responsibilities are clear;

iv. Disputes over contracts on supply of water, electricity, gas, heating power, etc.;

v. Disputes over bank cards;

vi. Disputes over the labor reward, medical expenses on occupational injuries, economic compensation or the amount, time and terms of payment of the compensation of labor contracts where the employment relationship is clear;

vii. Disputes over the amount, time and terms of payment of the labor reward of labor contracts where the employment relationship is clear;

viii. Disputes over the contract on services such as property management and telecommunications;

ix.  Disputes of other money payment.

Article 275 The procedure for petty lawsuits is not applicable to the following cases:

i. Disputes over personal relationship and the verification of the property right;

ii. Civil disputes over foreign affairs;

iii. Disputes over intellectual property;

iv. Disputes over the objections need to be assessed or verified or disputes from the objections against the results of the pre-lawsuit assessment or verification;

v. Disputes where the rule that "the judgment of first instance is final" is not applicable.

Article 276 Where a people's court accepts a small-amount lawsuit, the said people's court shall inform the parties concerned of the relevant issues such as the judgment organization, that the judgment of the fist instance is final, the trial period and the payment standard of the litigation fee.

Article 277 The period for presenting evidence applicable to the small-amount lawsuit shall be determined by the people's court or agreed by the parties concerned through consultation upon the approval of the people's court, which however shall not exceed 7 days in general.

Where the defendant requests for written defense, the people's court can reasonably determine the period for defense based on the approval of the defendant, which shall not exceed 15 days at maximum.

Where both parties concerned indicate that they do not need the period for presenting evidence and the period for defense after appearing in court, the people's court can immediately hold the trial.

Article 278 Where a party concerned raises objection against the jurisdiction of the small-amount lawsuit, the people's court shall make the judgment. The judgment will take effect immediately after it is made.

Article 279 Where the people's court finds that the small-amount lawsuit does not meet the complaining requirements specified in Article 119 of the Civil Procedure Law after accepting the case, the said people's court shall judge to reject the lawsuit. The judgment will take effect immediately once it is made.

Article 280 Where a case does not meet the requirements of small-amount lawsuit due to the addition or modification to the lawsuit or the countersuit lodged by a party concerned or the addition of party concerned, the case shall be tried by other provisions of the summary procedure.

Where the ordinary procedure shall be applicable to the cases mentioned in the above paragraph, the people's court shall determine to transfer the said cases to the ordinary procedure for trial.

Before the case transferred to the trial under other provisions of the summary procedure or the ordinary procedure, the facts which have been confirmed by both parties need not to be further proved or cross-examined.

Article 281 Where a party concerned raises objection against the cases tried by the small-amount lawsuit procedure, the said party shall raise the objection before the opening of the trial. Where the objection is determined to be established after the investigation of the people's court, the other provision of the summary procedure shall be applied. Where such objection shall not be established upon the investigation of the people's court, the party concerned shall be notified and written records shall be made.

Article 282 The judgment of the small-amount lawsuit can be simplified to mainly record the basic information of the parties concerned, the lawsuit and the main body of the judgment.

Article 283 Where the small-amount lawsuit tried by the people's court is not specified herein, other provisions of the summary procedure shall be applied.

 

XIII. Public Interest Lawsuit

 

Article 284 Public interest lawsuits shall be lodged against the acts of institutions or relevant organizations which pollute the environment, infringe the legal rights and interest of consumers or damage the social and public interests specified in laws and regulations such as the Environmental Protection Law and the Law of the People's Republic of China on the Protection of Consumer Rights and Interests in accordance with Article 55 of the Civil Procedure Law. The people's court shall accept the lawsuits meeting the following requirements:

i. There is a specific defendant;

ii. There are detailed lawsuit;

iii. There are primary evidence on the damage to the social and public interests;

iv. The lawsuit falls within the scope of civil lawsuits of the people's court and under the jurisdiction of the people's court accepting the lawsuit.

Article 285 The public interest lawsuits are under the jurisdiction of the intermediate people's court at the place where the infringement occurs or the defendant is located, unless otherwise specified by the law and judicial interpretation.

The public interest lawsuit against the pollution to the ocean environment falls to the jurisdiction of the maritime court at the place where the pollution occurs, the damage occurs or the preventive and control measures are adopted.

Where two or more people's courts respectively lodge the lawsuit against the same infringement, the case shall be governed by the people's court that first lodged the case. The people's court of jurisdiction can be designated by their common superior people's court when necessary.

Article 286 Having accepted the public interest lawsuit, the people's court shall inform relevant competent department of administration in writing within ten days.

Article 287 After the people's court accepts the public interest lawsuit, other institutions and relevant organizations which can lodge the lawsuit by law can apply to participate in the proceedings to the people's court before the opening of trial.  The institutions and organizations approved to participate in the proceedings by the people's court will be listed as co-plaintiffs.

Article 288 The acceptance and processing of the public interest lawsuit by a people's court does not impact the victim of the same infringement to lodge a lawsuit according to Article 119 of the Civil Procedure Law.

Article 289 As for the public interest lawsuit, the parties concerned can reach reconciliation and the people's court can mediate.

Where the parties concerned reach reconciliation or mediation agreement, the people's court shall make an announcement on the reconciliation or mediation agreement. The announcement period shall not be shorter than 30 days.

After the expiration of the announcement period, the people's court shall produce mediation documents when the reconciliation or mediation does not violate the social and public interests upon investigation. Where the reconciliation or mediation violates the social and public interests, the people's court shall not produce the mediation documents and continue the trial and make judgment by law.

Article 290  Where the plaintiff of a public interest lawsuit applies to withdraw the lawsuit after the conclusion of the court argument, the people's court shall not approve such application.

Article 291 Where the institutions or relevant organizations which are also qualified plaintiffs independently lodge a public interest lawsuit against the same infringement by law after the judgment of the public interest lawsuit takes effect, the people's court shall not accept such lawsuit, unless otherwise provided by laws and judicial interpretation.

 

XIV. Lawsuit of a Third Party for Revocation

 

Article 292 Where a third party applies to revoke a case whose judgment, ruling or mediation documents have taken effect, the said third party shall apply to the people's court which have made the effective judgment, ruling or mediation documents within six months after learning about or after the time when the third party should have known its civil rights and interests are impacted. The third party shall provide the following evidence and materials:

i. Failure in participating the proceedings for reasons not attributable to the third party;

ii. Whole or part of the judgment, ruling or mediation documents that has taken legal effect is false;

iii. The false contents of the judgment, ruling or mediation documents that has taken legal effect infringes the civil rights and interests of the third party.

Article 293 The people's court shall deliver the statement of claim to another party concerned within five days upon receipt of the statement of claim and evidence materials from a party concerned. The other party concerned can submit a written opinion within ten days upon receipt of the statement claim.

The people's court shall review the statement of claim and evidence materials submitted by the third party as well as the written opinion of the other party concerned. The people's court can interrogate both parties concerned when necessary.

Where the lawsuit is determined to meet the requirements of prosecution, the people's court shall file the case within 30 days upon receipt of the statement of claim. Where the lawsuit is determined to not meet the requirements of prosecution, the people's court shall judge not to accept the lawsuit within 30 days upon receipt of the statement of claim.

Article 294 The people's court shall set up a collegiate bench to try the lawsuit of a third party for revocation.

Article 295 "Failure in participating the proceedings for reasons not attributable to the third party" specified in the third paragraph of Article 56 of the Civil Procedure Law means that the third party has not been listed as the party concerned of the effective judgment, ruling and mediation documents and is not at any fault or is not at apparent fault, including:

i. The third party has not participated in the proceedings for not knowing about the proceedings;

ii. The third party has applied to participate in the proceedings but has not been approved;

iii. Despite knowing about the proceedings, the third party failed to participated in due to objective reasons;

iv. The third party failed in participating the proceedings for other reasons not attributable to itself.

Article 296 "Whole or party of the effective judgment, ruling and mediation documents" specified in the third paragraph of Article 56 of the Civil Procedure Law refers to the main body of the judgment or ruling and the results of the settlement concerning the civil rights and interests of the parties concerned in the mediation documents.

Article 297 A people's court shall not accept the lawsuit of a third party for revocation in the following circumstances:

i. Cases where the non-lawsuit procedures such as the special procedure, the procedure for the recovery of debts, the procedure for public invitation to assert claims and the bankruptcy procedure are applicable;

ii. Where the judgment, ruling or mediation documents concerning void marriage, revocation or termination of marriage involves the contents of personal relationships.

iii. The effective judgment of the lawsuit of an unregistered creditor against a representative specified in Article 54 of the Civil Procedure Law;

iv. The effective judgment of a public interest lawsuit of a victim against the act affecting the social and public interests specified in Article 55 of the Civil Procedure Law.

Article 298 As for the lawsuit of a third party for revocation, the people's court shall list the said third party as the plaintiff, the party concerned in the effective judgment, ruling and mediation documents as the defendant, and the third party taking no responsibility and without an independent right of request in the effective judgment, ruling and mediation documents as the third party.

Article 299 After the people's court accepts the lawsuit of a third party for revocation, if the plaintiff provides relevant guarantee and request for suspension of execution, the people's court can approve such request.

Article 300 As for the request to revoke whole or party of the effective judgment, ruling or mediation documents by the third party, the people's court shall handle according to the following circumstances after trial:

i. Where the request is established and the civil rights claimed by the third party are fully or partly established, the people's court shall modify the false part of the original judgment, ruling and mediation documents;

ii. Where the request is established but the civil rights claimed by the third party are fully or partly not established, or the third party does not submit a request to confirm its civil rights, the people's court shall revoke the false part of the original judgment, ruling and mediation documents;

iii. Where the request is not established, the people's court shall reject the lawsuit.

The party concerned, if not satisfied with the judgment specified in the above paragraph, can appeal.

The part of the original judgment, ruling and mediation documents which has not been modified or revoked shall be still effective.

Article 301 During the trial period of the lawsuit of a third party for revocation,if the people's court determines to retry the effective judgment, ruling or mediation documents, the people's court accepting the lawsuit of a third party for revocation shall determine to integrate the lawsuit of the third party into the retrial procedure. Where there is evidence to prove the parties concerned in the first instance have committed malicious collusion to damage the legitimate rights and interests of a third party, the people's court shall try the lawsuit of a third party for revocation and determine to suspend the retrial proceedings.

Article 302 Where the lawsuit of a third party is integrated into the re-trial procedure, the following procedures shall be followed according to different circumstances:

i. Where the lawsuit of a third party is tried by the first instance procedure, the people's court shall try the said lawsuit collectively, and an appeal can be made against the judgment;

ii. Where the lawsuit of a third party is tried by the second instance procedure, the people's court can mediate. Where agreement is not reached through mediation, the people's court shall determine to revoke the original judgment, ruling or mediation documents and remand to the people's court of first instance for retrial. The third party shall be listed in retrial.

Article 303 After the third party lodges the lawsuit for revocation, if the execution of the effective judgment, ruling or mediation documents is not suspended, the executing people's court shall investigate in the objections against the execution from the third party according to Article 227 of the Civil Procedure Law. Where the third party, not satisfied with the judgment on the objections against the execution, applies to retry the original judgment, ruling or mediation documents, the people's court shall not accept it.

Where an outsider of the case is not satisfied with the judgment of rejecting the objection by the people's court and deems that the false contents of the original judgment, ruling or mediation documents harm his/her legal rights and interests, the said outsider shall request for retrial according to Article 227 of the Civil Procedure Law. Where the outsider lodges a lawsuit of a third party for revocation, the people's court shall not accept.

 

XV. Lawsuit to Objections to the Execution

 

Article 304 According to Article 227 of the Civil Procedure Law, if an outsider or a party concerned, not satisfied with the judgment on the objection to execution, lodges a lawsuit of objections to the execution to the people's court within 15 days after the date of service of the judgment, the lawsuit shall be governed by the executing people's court.

Article 305 An outsider shall meet the following requirements in addition to Article 119 of the Civil Procedure Law to lodge a lawsuit to object to execution:

i. The request of the execution objection made by the outsider has been rejected by the people's court;

ii. There is a specific lawsuit to exclude the execution of the execution subject, and the lawsuit is irrelevant with the original judgment or ruling;

iii. The lawsuit is lodged within 15 days since the date of service of the judgment.

The people's court shall determine to file the case or not within 15 days upon receipt of the statement of claim.

Article 306 the applicant requesting for execution shall meet the following requirements in addition to Article 119 of the Civil Procedure Law to lodge a lawsuit to object to execution:

i. The people's court shall determine to suspend the execution according to the request of the execution objection made by an outsider;

ii. There is a specific lawsuit to continue the execution of the execution subject, and the lawsuit is irrelevant with the original judgment or ruling;

iii. The lawsuit is lodged within 15 days since the date of service of the judgment.

The people's court shall determine to file the case or not within 15 days upon receipt of the statement of claim.

Article 307 Where an outsider lodges a lawsuit to object to execution, the applicant requesting for execution shall be the defendant. Where the executed has objection against the objection from the outsider, the executed shall be the co-defendant. Where the executed has no objection against the objection from the outsider, the executed can be listed as a third party.

Article 308 Where the applicant requesting for execution lodges a lawsuit to object to execution, the outsider shall be the defendant. Where the executed has objection against the claims of the applicant requesting for execution, the outsider and the executed shall be defendants. Where the executed has no objection against the claims of the applicant requesting for execution, the executed can be listed as a third party.

Article 309 Where the applicant requesting for execution does not lodge a lawsuit to object to execution against the judgment on execution suspension and the executed lodges a lawsuit to object to execution, the people's court shall inform the executed to lodge another lawsuit separately.

Article 310 The ordinary procedure shall be applicable to the trial of the lawsuit to object by the people's court.

Article 311 Where an outsider or the applicant requesting for execution lodges a lawsuit to object to execution, the outsider shall assume the responsibility of presenting the evidence to prove that he/she enjoys the civil rights and interests in the execution subject which are sufficient to exclude compulsory execution.

Article 312 As for the lawsuits to object to execution by the outsider, the people's court shall process according to the following circumstances after trial:

i. Where the outsider enjoys the civil rights and interests in the execution subject which are sufficient to exclude compulsory execution, the people's court shall judge not to execute the subject;

ii. Where the outsider does not enjoy the civil rights and interests in the execution subject which are sufficient to exclude compulsory execution, the people's court shall judge to reject the lawsuit.

Where the outsider lodges a lawsuit to confirm his/her rights at the same time, the people's court can make the judgment when making the ruling.

Article 313 As for the lawsuits to object to execution by the applicant requesting for execution, the people's court shall process according to the following circumstances after trial:

i. Where the outsider enjoys the civil rights and interests in the execution subject which are sufficient to exclude compulsory execution, the people's court shall judge to allow the execution of the subject;

ii. Where the outsider does not enjoy the civil rights and interests in the execution subject which are sufficient to exclude compulsory execution, the people's court shall judge to reject the lawsuit.

Article 314 As for the lawsuits to object to execution by an outsider, if the people's court judges not to execute the subject, the objection to execution shall be judged as void.

Where the people's court judges to approve the execution of the subject of the lawsuit to object to execution by the applicant requesting for execution, the executing people's court can resume the execution according to the request of the applicant or ex officio if the the execution objection is judged as void.

Article 315 During the trial period of the lawsuit to object to execution to the outsider, the people's court shall not dispose the execution subject. Where the applicant requesting for execution requests the people's court to continue the execution and provides relevant guarantee, the people's court can approve.

Where the executed and the outsider commit malicious collusion to hinder the execution by execution objection or lawsuit to object to execution, the people's court can process such situation according to Article 113 of the Civil Procedure Law. Where the applicant requesting for execution is harmed therefrom, the said applicant can lodge a lawsuit to require the executed and the outsider to compensate.

Article 316 After the people's court judges to suspend the execution of the subject, where the applicant requesting for execution does not lodge the lawsuit to object to execution within the period specified by law, the people's court shall terminate the execution measures adopted against the subject within 7 days after the expiration.

 

 

 

 

XVI. Procedure at Second Instance

 

Article 317 Where both parties concerned and the third party appeal, all the third parties shall be listed as the appellants. The people's court can determine the litigation status of the parties in the procedure at second instance ex officio.

Article 318 "Both parties" specified in Article 166 and Article 167 of the Civil Procedure Law include the appellee and other parties of the original instance.

Article 319 Where one or some necessary co-litigants institute an appeal, such appeal shall be processed according to the following situations:

i. Where the appeal only involves the disputes over the rights and obligations between both parties concerned and does not involve the interests of other co-litigants, both parties concerned are the appellees and the parties concerned of the same party who do not institute the appeal shall be listed according to the litigation status at the original instance.

ii. Where the appeal only involves the disputes over the rights and obligations among the co-litigants and does not involve the interests of the other party concerned, the parties concerned of the same party who do not institute the appeal shall be listed as the appellees and the parties concerned of the other party shall be listed according to the litigation status at the original instance.

iii. Where the appeal involves the dispute over the rights and obligations between both parties concerned and among the co-litigants, other parties concerned who do not institute the appeal shall be listed as the appellants.

Article 320 Where a party concerned orally expresses the intention to appeal at the judgment of first instance or at the service of the judgment or ruling, the people's court shall inform the said party to submit the appeal petition before the deadline of appeal specified by law. Where the party fails to submit the appeal petition before the deadline of appeal specified by law, it shall be deemed as having not instituted the appeal. Where the party submits the appeal petition but fails to pay the litigation fee within the specified period, the appeal shall be handled as having automatically been withdrawn.

Article 321 The legal agent of a party concerned with no capability for civil acts or with limited capacity for civil acts can institute an appeal on behalf of the said party concerned.

Article 322 Where a party concerned of an appeal deceases or the appeal is terminated, the people's court shall notify the successor of the rights and interests of the said party concerned to participate in the litigation.

Where the litigation shall be closed, Article 151 of the Civil Procedure Law shall be applicable.

Article 323 The people's court of second instance shall conduct the trial centering on the appeal of the party concerned.

Where the party concerned does not institute the appeal, the people's court shall not conduct the trial, unless the judgment of first instance violates the prohibitive provisions of the law or damages the national interests, public interests or the legal rights and interests of others.

Article 324 The people's court of second instance can make the pre-trial preparation for the appealed case to be tried according to Item 4 of Article 133 of the Civil Procedure Law.

Article 325 The following situations can be determined as serious violations against the legal procedures as specified in Item 4 in the first paragraph of Article 170 of the Civil Procedure Law.

i. The composition of the judging organization is illegal;

ii. The judges who should have withdrawn do not withdraw;

iii. The party without the capacity of litigation does not make the litigation by the legal agent;

iv. The right of argument of the parties concerned is illegally deprived.

Article 326 Where the people's court of first instance has not made the judgment or ruling on the litigation request of a party concerned at first instance, the people's court of second instance can conduct the mediation based on the principle of voluntariness of the parties concerned. Where the mediation fails, the case shall be remanded for retrial.

Article 327 Where a party concerned that has to participate in the litigation or a third party with independent right of request has not participated in the litigation, the people's court of second instance can conduct the mediation based on the principle of voluntariness of the parties concerned. Where the mediation fails, the case shall be remanded for retrial.

Article 328 Where the plaintiff of first instance adds independent litigation request or the defendant of first instance lodges a countersuit in the procedure at second instance, the people's court of second instance can make the mediation on the new litigation request or the countersuit based on the principle of voluntariness of the parties concerned. Where the mediation fails, the people's court shall inform the party concerned to lodge a separate lawsuit.

Where both parties concerned agree the people's court of second instance to try collectively, the people's court of second instance can make the judgment collectively.

Article 329 Where the people's court of second instance determines that the appealed divorce case which has been determined not to be divorced in the first instance, mediation can be conducted on the appeal together with issues concerning child support and property. Where the mediation fails, the case shall be remanded for retrial.

Where both parties concerned agree the people's court of second instance to try collectively, the people's court of second instance can make the judgment collectively.

Article 330 Where the people's court tries an appeal by the procedure at second instance and determines that the lawsuit shall not be accepted by the people's court, the people's court of second instance can directly make the judgment to withdraw the original judgment and reject the appeal.

Article 331 Where the people's court tries an appeal by the procedure at second instance and determines that the acceptance of the lawsuit by the people's court of first instance has violated the special jurisdiction rules, the people's court of second instance shall judge to reverse the original judgment and transfer the lawsuit to a people's court with the right of jurisdiction.

Article 332 Where the people's court of second instance investigates that the judgment to not accept the lawsuit made by the people's court of first instance is wrong, the people's court of second instance shall designate the people's court of first instance to file and accept the case while withdrawing the original judgment. Where the people's court of second instance investigates that the judgment to reject the lawsuit made by the people's court of first instance is wrong, the people's court of second instance shall designate the people's court of first instance for trial while withdrawing the original judgment.

Article 333 The people's court of second instance can try the following lawsuits without opening the court according to Article 169 of the Civil Procedure Law:

i. A party concerned is unsatisfied with the judgment to not accept the lawsuit, the objection against the jurisdiction and reject the lawsuit;

ii. Where the lawsuit lodged by the party concerned obviously cannot be established;

iii. Where the facts recognized in the original judgment or ruling are clear but the applicable laws are wrong;

iv. Where the original judgment has severely violated the legal procedure and needs to be remanded for retrial.

Article 334 Where the results of judgment are correct in spite of the defective facts recognized by the original judgment or ruling or the applicable rules, the people's court of second instance can correct the defects in judgment or ruling and maintain the original judgment or ruling according to Item 1 in the first paragraph of Article 170 of the Civil Procedure Law.

Article 335 "Basic facts" specified in Item 3 in the first paragraph of Article 170 of the Civil Procedure Law refer to the facts to determine the subject qualification of parties concerned, the nature of the case and the civil rights and duties that have substantial influence on the results of the original judgment or ruling.

Article 336 In the procedure at second instance, the people's court can directly list the legal entities or other spin-offs of the parties concerned as co-litigants. Where such legal entities or other independent enterprises are merged, the legal entity or other organization after the merger shall be listed as a party concerned.

Article 337 In the procedure at second instance, where a party concerned requests to withdraw a lawsuit and the people's court finds errors in the ruling of first instance after investigation or the parties concerned have committed malicious collusion to damage the national interests, the public interests and the legal rights and interests of others, the people's court shall not approve of such request.

Article 338 In the procedure at second instance, where the plaintiff of first instance requests to withdraw the lawsuit upon the approval of other parties concerned, which does not harm the national interests, the public interests or the legal rights and interests of others, the people's court can approve of such request. Where the lawsuit is approved to be withdrawn, the people's court shall make the judgment to withdraw the judgment of first instance at the same time.

Where the the plaintiff of first instance lodges the lawsuit again after withdrawing the lawsuit in the procedure at second instance, the people's court shall not accept such lawsuit.

Article 339 Where the parties concerned reach a mediation agreement in the procedure at second instance, the people's court can review the mediation agreement made by both parties concerned and make and deliver the mediation documents to them upon the request of the parties concerned. Where the parties concerned request for withdrawing the lawsuit after mediation which is proved to be qualified for withdrawal, the people's court shall approve of such request.

Article 340 The people's court of second instance can either announce the judgment on its own or entrust the people's court of first instance or the people's court at the place where the parties concerned are located to announce the judgment.

Article 341 The people's court shall make the final judgment within 30 days since the case filing date of the second instance for the appealed cases. Where applications for the period extension needs to be made for special reasons, approval shall be obtained from the president of the people's court.

Article 342 The litigation acts performed by a party concerned of first instance shall still have binding force on the said party in the procedure at second instance.

When the party concerned overturns the litigation acts performed in the procedure at first instance, the people's court shall order the said party to give the explanation or reason. Where the reasons are not established, the people's court shall not approve.

 

XVII. Special Procedure

 

Article 343 As for cases where a party concerned is announced missing or deceased, the people's court shall dispose the property of the said party according to the request of the applicant and designate the person in charge of the property during the trial period. After the expiration of the publication period, where the people's court make the judgment to announce the party concerned missing, the said people's court shall designate the person to take charge of the property of the missing party concerned according to the first paragraph in Article 21 of the General Principles of the Civil Law.

Article 34 Where the person designated by the people's court to take charge of the property of the missing party concerned requests to designate another person to take charge of the property, the trial shall be conducted by referring to the special procedure of the Civil Procedure Law. Where the reasons for request are established, the people's court shall judge to revoke the designation and designate another person to take charge of the property. Where the reasons for request are not established, the people's court shall reject the request.

Where other interested party of the missing party concerned requests to change the person in charge of the property, the people's court shall inform the said interested party to lodge a lawsuit with the original designated person as the defendant and try the lawsuit by the general procedure.

Article 345 After the people's court announces a citizen missing, if the interested party requests to the people's court to announce the missing citizen dead and the citizen has been missing for four years since the date of missing, the people's court shall accept the request and announce the missing judgment to be the proof of the missing of the citizen. The people's court shall still make the publication according to Article 185 of the Civil Procedure Law in trial.

Article 346 Where multiple interested parties request to announce a citizen missing or deceased, such interested parties shall be listed as co-applicants.

Article 347 The announcement looking for missing citizens shall bear the following contents:

i. The respondent shall report his/her specific address and contact information to the accepting people's court within a specified period of time. Or the respondent will be announced missing or deceased;

ii. Any one who knows the latest information about the respondent shall report the information to the accepting people's court within the publication period.

Article 348 Where the applicant withdraws the request after the people's court accepts the request to announce missing or deceased but before the judgment, the people's court shall make the judgment that the case is completely closed, unless other interested parties meeting the legal provisions participate in the proceedings and request to continue the trial.

Article 349 In the litigation, where the interested parties of the party concerned propose that the party concerned has mental illness and request to announce the party concerned to have no capability for civil acts or limited capacity for civil acts, the interested party shall submit the request to a people's court which then file and try the case by the special procedure and the original lawsuit shall be suspended.

Article 350 In a case of determining the property to have no owner, where a party lodges claim to the property during the publication period, the people's court shall judge to terminate the special procedure and inform the applicant of filing a new lawsuit where the general procedure shall be applied.

Article 351 Where the designated guardian is unsatisfied with the designation, the said guardian shall submit the objection to the people's court within 30 days upon receipt of the notice. The people's court, if determines that the designation is not inappropriate after trail, shall reject the objection. The people's court, if determines that the designation is inappropriate, shall designate another guardian. The judgment shall be delivered to the person raising the objection, the original designated unit and the designated guardian.

Article 352 Where a case requesting to recognize a citizen without close relative to have no  capability for civil acts or limited capacity for civil acts and the respondent, the people's court shall designate other relatives to be his/her agent. Where the respondent has no relative, the people's court can designate, upon the approval of the unit or the residential committee or the villagers' committee where the respondent belongs to, a close friend to be the agent of the respondent.

Where the respondent has not agent specified in the aforesaid paragraph, the unit or the residential committee, the villagers' committee or the civil administration department of the respondent to be the agent.

There can be an agent or two agents in the same order.

Article 353 Where both parties concerned apply for judicial confirmation on the mediation agreement, both parties concerned shall in person or the legal agents of the parties concerned specified in Article 58 of the Civil Procedure Law to apply to the grassroots people's court or the people's court at the place where the mediated organizations are located.

Article 354 Where more than two organizations participate in the mediation, all grassroots people's court at the place where these organizations are located shall have the right of jurisdiction.

Both parties concerned can jointly submit the request to the grassroots people's court at the place where one of these organizations is located. Where both parties concerned jointly submit the request to the grassroots people's courts at the places where more than two organizations are located, the case shall be governed by the people's court that firstly files the case.

Article 355 A party concerned can apply for judicial confirmation on the mediation agreement in both written or oral form. Where the party concerned makes an oral application, the people's court shall make written records which shall be signed, marked or sealed by the party concerned.

Article 356 To apply for judicial confirmation on the mediation agreement, the party concerned shall submit the mediation agreement, the proof that the mediated organizations have organized the mediation and the materials proving the property right relating to the mediation agreement as well as the basic information of both parties concerned such as their identities, domicile and contact information.

Where the parties concerned fails to submit the above mentioned materials, the people's court shall require the party concerned to supplement within a specified period.

Article 357 The people's court shall judge not to accept the request for judicial confirmation on the mediation agreement of the party concerned in any of the following situation:

i. The request does not belong to the business scope to be accepted by the people's court;

ii. The request is beyond the jurisdiction of the people's court that receives the request;

iii. The request is for confirming a marriage, a  parent-child relationship, adoptive relationship and other personal relationship to be void, valid or terminated;

iv. The request is applicable to other special procedures, the procedure for public invitation to assert claims or the bankruptcy procedure;

v. The mediation agreement covers the verification of the property right or the intellectual property right.

Where the people's court finds the request involves the aforesaid situations after accepting the request, the said people's court shall judge to reject the request of the party concerned.

Article 358 The people's court shall notify both parties concerned to appear in court to verify the facts when investigating relevant information.

Where the people's court holds that the statements of the parties concerned or the evidence provided by the parties concerned are insufficient, incomplete or doubtful after investigation, the people's court can require the parties concerned to provide supplementary statement or evidence within a specified period. The people's court can learn relevant information from the mediated organizations when necessary.

Article 359 Where the party concerned revokes the request before the judgment on the mediation agreement, the people's court can approve such revocation.

Where the party concerned refuses to provide supplementary statement or evidence or reject to be interrogated without justifiable reasons, the people's court can process the request as a revoked one.

Article 360 The people's court shall reject the request if the mediation agreement is found to have involved in the following situations in the investigation:

i. The request violates the mandatory legal provisions;

ii The request damages national interests, public interests or legal rights and interests of others;

iii. The request goes against the public order and sound traditional customs;

iv. The request breaches the principle of voluntariness;

v. The contents of the request are not specific;

vi. Other situations where the judicial confirmation is not applicable.

Article 361 "The holder of the real right for security" specified in Article 196 of the Civil Procedure Law refers to the holder of the property of the mortgaged, the holder of the property of the pledged and the lien holder, and "other persons who have the right to request for the realization of the real right for security" refers to the mortgagor, the pledgor, the debtor whose property is retained or the holder of the title.

Article 362 Cases concerning the realization of the right of pledge with right certificates such as bills, warehouse warrant and bill of lading can be governed by the people's court at the place where the holder of the right certificate is located. In case of the right of pledge without right certificate, such cases shall be governed by the people's court at the place where the pledge is registration.

Article 363 Where the case concerning the real right for security belongs to the jurisdiction of special people's court such as the maritime court, the case shall be governed by the special people's court.

Article 364 Where there are several guarantees at different places for the same creditor's right and the applicant requests the people's courts with jurisdiction to realize the real rights for security respectively, the people's courts shall accept the requests by law.

Article 365 According to Article 176 of the Property Law, where the creditor's right is guaranteed by collateral and people and the parties concerned have agreement on the order of realizing the real right for security, and the request to realize the real right for security violates the agreement, the people's court shall hold not to accept. Where there is no agreement or the agreement is not explicit, the people's court shall accept the request.

Article 366 Where there are several real rights for security established on the same property, though the real right firstly established has not been realized, it shall not impact the holders of the real rights for security in order to request the people's court to realize the real right for security.

Article 367 The following materials shall be provided for the request to realize the real right for security:

i. Application. The application shall indicate the basic information about the applicant and the respondent such as name, title and contact information as well as the specific request, facts and reasons:

ii. Materials that prove the existence of the real right for security, including the master contract, the guarantee contract, the mortgage registration certificate or certificate of other rights, the certificate of right of the right of pledge or the pledge registration certificate of the right of pledge;

iii. Materials that prove the conditions for realizing the real right for security;

iv. Explanation to the current state of the property for guaranty;

v. Other materials the people's court deems to be submitted.

Article 368 Having accepted the application, the people's court shall deliver documents such as the copy of the application and the notification of the right to raise objection to the respondent within five days.

The respondent, if has any objection, shall raise the objection to the people's court within five days upon receipt of the notification from the people's court and give reasons as well as relevant evidence and materials.

Article 369 The case concerning the real right for security shall be independently investigated by judges. Where the subject value of the property for guaranty exceeds the jurisdiction of the grassroots people's court, a collegiate bench shall be set up for the investigation.

Article 370 The people's court can inquire the applicant, the respondent, and interested parties when investigating in the case concerning the realization of the real right for security, and can investigate in relevant facts ex officio when necessary.

Article 371 The people's court shall investigate in the effect, the effective period, the performance of the master contract, whether the real right for security has been effectively established, the scope of the property for guaranty, the scope of the guaranteed creditor's right, whether the guaranteed creditor's right is falling due and other conditions for the realization of the real right for security as well as whether the real right for security damages legal rights and interests of others.

Where the respondent or the interested party raises objections, the people's court shall investigated in as well.

Article 372 Respective measures shall be taken by the people's court according to the following situations after investigation:

i. Where the parties concerned have no substantial dispute over the realization of the real right for security and the conditions for the realization of the real right for security are met, the people's court shall approve to auction or sell the property for guaranty;

ii. Where the parties concerned have some substantial dispute over the realization of the real right for security, the people's court shall approve to auction or sell the undisputed part of the property for guaranty;

iii. Where the parties concerned have substantial dispute over the realization of the real right for security, the people's court shall remand the application and inform the applicant of lodging a lawsuit to the people's court.

Article 373 Where the applicant request to preserve the property for guaranty after the people's court accepts the application, the application can be processed according to the provisions of the Civil Procedure Law about the litigation preservation.

Article 374 Where a party concerned or an interested party believes that the judgment or ruling made through the applicable special procedure is wrong, the said party concerned or the interested party can raise objections to the people's court which has made the judgment or ruling. Where the people's court finds the objection established or part of the objection established after investigation, it shall make new judgment or ruling to revoke or modify the original judgment or ruling. Where the objection is found to be not established, the people's court shall judge to reject the objection.

Where the party concerned has any objection against the judgment on confirming the mediation agreement or approving the realization of the real right for security made by the people's court, the party concerned shall raise the objection within 15 days upon receipt of the judgment. Where the interested party has any objection, the said interest party shall raise the objection within 6 months after the date when getting to know or should have known its civil rights and interests are damaged.

 

XVIII. Procedure for Trial Supervision

 

Article 375 Where a party concerned is deceased or terminated, the successor of the rights and interests of the said party concerned can apply for retrial according to Article 199 and Article 200 of the Civil Procedure Law.

After the judgment or mediation documents take effect, where the parties concerned transfer the creditor's right confirmed in the judgment or mediation document and the transferee, unsatisfied with the judgment or mediation documents, applies for retrial, the people's court shall not accept the application.

Article 376 "A party concerned involves a number of persons" in Article 199 of the Civil Procedure Law include citizens, legal entities or other organizations.

"Cases where both parties concerned are citizens" in Article 199 of the Civil Procedure Law refer to the cases where both the plaintiff and the defendants are citizens.

Article 377 The party concerned shall submit the following materials to apply for retrial:

i. retrial request. The party concerned shall provide copies of the retrial request in the number of the respondent and other party concerned of first instance.

ii. The identity certificate shall be provided if the applicant of the retrial is a natural person. Where the applicant of the retrial is a legal entity or other organization, the party concerned shall submit the business license, the organizational code certificate, the identity certificate of the legal representative or the person in charge. Where the party concerned entrust another party for the application, the power of attorney and the identity certificate of the agent shall be submitted;

viii. The original judgment, ruling,or mediation documents;

iv. Major evidence or other materials which reflect the basic facts of a case.

The materials specified in Item 2, Item 3 and Item 4 in the aforesaid paragraph can be the verified copies of the originals.

Article 378 The retrial request shall indicate the following items:

i. The basic information on the applicant of the retrial and the defendant as well as other parties concerned of first instance;

ii. The name of the people's court of first instance and the case number of the original judgment;

iii. Detailed request for retrial;

iv. The legal situation, specific facts and reasons for the retrial.

The retrial request shall explicitly indicate the people's court for the retrial and shall be signed, marked or sealed by the applicant of the retrial.

Article 379 In a case that a party concerned involves a number of persons or both parties concerned are citizens where the parties concerned respectively apply to the people's court of first instance and the superior people's court for retrial and an agreement cannot to be reached through consultation, the people's court of first instance shall accept the application.

Article 380 Cases where the non-lawsuit procedures such as the special procedure, the procedure for the recovery of debts, the procedure for public invitation to assert claims and the bankruptcy procedure are applicable, the parties concerned shall not apply for retrial.

Article 381 Where the party concerned believes that the effective judgment of non-acceptance or rejection is wrong, the said party concerned can apply for retrial.

Article 382 A party concerned applies for retrial concerning the division of property in a divorce case, if the application involves the property which has been divided in judgment, the people's shall make an investigation according to Article 200 of the Civil Procedure Law. Where the application is found to meet the conditions for retrial, the people's court shall judge to retry the case. Where the application involves the property jointly owned by a couple which has not been processed, the people's court shall inform the party concern of filing another lawsuit.

Article 383 The people's court shall judge not to accept the request for retrial in any of the following situations:

i. The party concerned submits the application again after being rejected;

ii. The party concerned makes the application against the judgment or ruling of second instance;

iii. The party concerned makes the application again after the people's procuratorate has made the decision on not giving the retrial procuratorial suggestion or protest against the application of the party concerned.

In the circumstances specified in Item 1 and Item 2, the people's court shall inform the party concerned of making application to the people's procuratorate for retrial procuratorial suggestion or protest, unless the judgment or ruling has been made for the retrial procuratorial suggestion or protest given by the people's procuratorate.

Article 384 The party concerned shall submit the retrial request against the effective mediation documents within six months after the mediation documents take effect.

Article 385 The people's court shall deliver the acceptance notification to the applicant of the retrial within five days upon receipt of the eligible retrial request and deliver the notice of respondence to action, copy of the retrial request and other relevant materials to the respondent and other parties concerned of first instance.

Article 386 Having accepted the retrial request, the people's court shall conduct an investigation in the reasons for the claim of the party concerned according to Article 200, Article 201 and Article 204 of the Civil Procedure Law.

Article 387 Where the new evidence provided by the applicant of the retrial can prove the basic facts recognized by the original judgment or ruling or the results of the judgment wrong, the case shall be recognized as the situations specified in Item 1 of Article 200 of the Civil Procedure Law.

As for the evidence meeting the requirements of the above paragraph, the people's court shall order the applicant of the retrial to explain the reasons for providing the evidence overdue. Where the applicant refuses to give the reasons or the reasons are not established, the people's court shall process according to the second paragraph of Article 65 of the Civil Procedure Law and Article 102 herein.

Article 388 Where the new evidence provided by the applicant of the retrial meets any of the following requirement, the reasons for providing the evidence overdue can be recognized as established:

i. The evidence has existed before but is found after the end of first instance due to objective reasons;

ii. The evidence has been found before the end of first instance but cannot be obtained or provided within the specified period due to objective reasons;

iii. The evidence comes into existence after the end of first instance based on which another lawsuit cannot be lodged.

Where the evidence provided by the applicant of the retrial has been provided during the first instance but the people's court of first instance has not cross-examined the evidence or taken as the basis for the judgment, the reasons for overdue provision of the evidence is deemed as established, except that the people's court of first instance has not adopted the evidence according to Article 65 of the Civil Procedure Law.

Article 389 Where the party concerned refuses to respond to the cross-examination or does not give opinions on the evidence during the cross-examination in the first instance about the major evidence based on which the facts are recognized in the original judgment or ruling, the situation shall not belong to the situations where the evidence is not cross-examined specified in Item 4 of Article 200 of the Civil Procedure Law.

Article 390 Where the following situations lead to the error in the results of the judgment or ruling, the original judgment and the applicable laws specified in Item 6 of Article 200 of the Civil Procedure Law shall be determined to be wrong indeed:

i. The applicable laws are obviously inconsistent with the nature of the case;

ii. The determination of the civil liabilities is apparently against the agreement of the parties concerned or the laws;

iii. Void laws or laws have not come into effect are applied;

iv. Violation against the retrospective effect of laws;

v. Violation against the law application rule;

vi. Apparent violation against the legislation purpose.

Article 391 Where there is any of the following situations during the trial of first instance, the situation can be recognized as depriving the party concerned of the right of argument specified in Item 9 of Article 200 of the Civil Procedure Law:

i. The party concerned is not allowed to give the statement of argument;

ii. The case, for which an open trial should have been opened, is not tried in an open trial;

iii. The copy of the statement of claim or the appeal petition  is delivered in violation against laws, which leads to the party concerned's failure in exerting the right of argument;

iv. Other situations where the right of argument of the parties concerned is illegally deprived.

Article 392 "The litigation request" in Item 11 of Article 200 of the Civil Procedure Law include the litigation requests of both the first instance and the second instance, except that the party concerned does not institute an appeal against the omission of the judgment or ruling of first instance or the party concerned institute an appeal beyond the litigation request.

Article 393 The legal documents specified in Item 12 of Article 200 of the Civil Procedure Law include:

i.Effective judgment, ruling,or mediation documents;

ii. Effective arbitration awards;

iii. Notarized creditor's right document with compulsory execution effect.

Article 394 "When trying the case, a judge commits embezzlement, accepts bribes, practices favoritism for personal gains, or adjudicates by bending the law" of Item 13 of Article 200 of the Civil Procedure Law refers to the acts recognized by the effective criminal legal documents or disciplinary punishment decision.

Article 395 Where the reasons for the party concerned claiming for retrial are established and the claim meets the retrial conditions specified in the Civil Procedure Law and this Interpretation, the people's court shall judge to retry.

Where the reasons for the party concerned claiming for retrial are not established or the retrial request of the party concerned did not meets the retrial conditions specified in the Civil Procedure Law and this Interpretation on issues such as the deadline of retrial application and the scope of legal retrial, the people's court shall reject the retrial request.

Article 396 Where the people's court determines to retry the judgment, ruling or mediation documents which have taken effect and shall suspend the execution according to Article 206 of the Civil Procedure Law, the people's court shall indicate the execution of the suspension of the original judgment, ruling or mediation documents in the judgment of the retrial. The said people's court can notify the executing people's court to suspend the execution in oral form in emergency and send the judgment within ten days after the notification.

Article 397 The people's court shall determine to interrogate the parties concerned or not according to the requirements of the case investigation. Where the new evidence may overturn the original judgment or ruling, the people's court shall interrogate the parties concerned.

Article 398 During the application period of the retrial review,if the respondent and other parties concerned of first instance apply for retrial, the people's court shall list them as the applicants for retrial and investigate in the reasons for their application and recount the investigation period. Where the reasons for the retrial request of one party concerned are proved to be established during the investigation, the people's court shall determined to retry the case. Where no reason for the retrial request of the applicants is proved to be established during the investigation, the people's court shall make the judgment collectively and reject the applications for retrial.

Article 399 During the application period of the retrial review, where the applicant of retrial requests the people's court to conduct the verification or investigation, the people's court shall not approve.

Article 400 Where the applicant of retrial withdraws the application during the period of retrial request, the people's court shall decide to approval the withdrawal or not.

Where the application of retrial reject to be interrogated upon the receipt of court summon without justifiable reasons, the people's court can process the situation as retrial request after withdrawal.

Article 401 The people's court approves the withdrawal of the retrial request or process the application as have been withdrawn, the retrial request made by the same applicant shall not be accepted, except for the situations specified in Item 1, Item 3, Item 12 and Item 13 of Article 200 of the Civil Procedure Law and the applicant makes the application within 6 months since the date when the applicant knows or should have known such situations.

Article 402 During the investigation period of the retrial application, the people's court shall judge the investigation to be final in the following situations:

i. Where the applicant of retrial, who has no successor of rights and obligations or the successor of the rights and obligations announces to waiver the retrial request, deceased or is terminated;

ii. Lawsuits of payment where the respondent with the obligation of payment, who has neither property can be executed nor person who shall take the obligation, deceased or is terminated;

iii. Where the parties concerned have reached and completed the mediation agreement, except that the parties have not stated to waive the right to apply for retrial in the mediation agreement;

iv. Where another party applies for retrial in the name of a party concerned without authorization;

v. Where the people's court of first instance or the superior people's court has judged to retry;

vi. Where there is any situation specified in the first paragraph of Article 383 herein.

Article 403 The people's court shall set up a collegiate bench for open trial of the case to be retried, except that according to the procedure at second instance, there is special situation or both parties concerned have fully stated their opinions through other means and agreed in writing not to have an open trial.

Default judgment can be made on the case meeting the conditions for default judgment.

Article 404 The people's court should hold opening trial for retried cases according to the following situations:

i. Where a party concerned requests the retrial, the applicant shall firstly state the retrial request and reasons before the respondent makes the statement of defense and other parties concerned of first instance state their opinions;

ii. Where the retrial is held for protest, the protesting authority shall read the motion of protest before the party requesting protest make the statement before the respondent makes the statement of defense and other parties concerned of first instance state their opinions;

iii. Where the people's court retries a case which has protestant ex officio,the protestant shall firstly state the retrial request and reasons before the respondent makes the statement of defense and other parties concerned of first instance state their opinions;

iv. Where the people's court retries a case which has no protestant ex officio,the plaintiff or the appellee of first instance shall make the statement before other parties concerned of first instance state their opinions.

In the situations specified in Item 1 to Item 3 in the foregoing paragraph, the people's court shall require the party concerned to specify its retrial request.

Article 405 The people's court shall conduct the retrial by centering on the retrial request. Where the retrial request of a party concerned goes beyond the litigation request of first instance, the people's court shall not accept it. Where the request meets the conditions for lodging another lawsuit, the people's court shall inform the party concerned of lodging another lawsuit.

Where the respondent and other parties concerned of first instance make the retrial request before the end of the court debate, which meets the provision of Article 205 of the Civil Procedure Law, the people's court shall make the investigation collectively.

Where the people's court finds that the judgment or ruling which has taken effect damages national interests, public interests or legal rights and interests of others upon retrial,such judgment or ruling shall be investigated collectively;

Article 406 Where there is any of the following situations during the period for retrial, the people's court can judge to terminate the retrial procedure:

i. Where the applicant of retrial withdraws the retrial request during the retrial period which is approved by the people's court;

ii. Where the application of retrial reject to appear in court without justifiable reasons upon the receipt of the court summon, or where the applicant of retrial retreats from the court without permission during the trial period which is processed as withdrawn retrial request;

iii. The people's procuratorate retreats the protest;

iv. The situations specified in Item 1 to Item 4 in Article 402 herein.

As for the cases to be retried due to the protest raised by the people's procuratorate, where the party concerned applying for the protest involves in the situations specified in the foregoing paragraph and does not damage the national interests, the public interests and the legal rights and interests of others, the people's court shall judge to terminate the retrial procedure.

After the conclusion of the retrial procedure,the original effective judgment whose execution has been suspended by the people's court shall be automatically resumed.

Article 407 Where the people's court holds the facts recognized by the original judgment or ruling are clear and the laws applied are correct after retrial, the original judgment or ruling shall be supported. Where the results of the judgment are correct despite the defective facts determined by the judgment or ruling and the applicable laws, the people's court shall judge to support the original judgment or ruling after the said defects are rectified.

Where the facts recognized by the original judgment or ruling and the laws applied are wrong, which results in erroneous judgment results, the people's court shall make a new judgment or revoke or modify the original judgment by law.

Article 408 For the cases retried by the procedure at second instance, where the people's court holds that the case is inconsistent with conditions for lodging a lawsuit specified in the Civil Procedure Law or falls into the situations not to be accepted according to Article 124 of the Civil Procedure Law, the people's court shall judge to revoke the judgments of the first and the second instances and reject the lawsuit.

Article 409 The people's, having determined to conduct retrial on the mediation documents, shall process the retrial according to the following situations:

i. Where the reason that the mediation goes against the principle of voluntariness proposed by the parties is not established and the contents of the mediation documents do not violate the mandatory legal provisions, the people's court shall reject the retrial request;

ii. Where the reason for damaging the national interests or the public interests claimed by the people's procuratorate in the protest or the retrial procuratorial suggestion is not established, the people's court shall terminate the retrial procedure.

Where the mediation documents whose execution has been suspended by the people's court need to be executed again according to the situations specified in the foregoing paragraph, the execution shall be resumed automatically.

Article 410 In the procedure at second instance, where the plaintiff of first instance requests to withdraw the lawsuit upon the approval of other parties concerned, which does not harm the national interests, the public interests or the legal rights and interests of others, the people's court can approve of such request. Where the people's court approves to withdraw the lawsuit, the original judgment shall be jointly withdrawn.

Where the the plaintiff of first instance lodges the lawsuit again after withdrawing the lawsuit in the procedure at second instance, the people's court shall not accept such lawsuit.

Article 411 A party concerned submits new evidence which results in amend the original judgment by retrial. If the evidence has not been submitted in a timely manner at the first instance due to the fault of the applicant of retrial or the party concerned applying for procuratorial supervision and the parties concerned such as the respondent request to increase the compensation for their expenses on transportation, accommodation, meals, loss of income and other necessary fees, the people's court shall support such request.

Article 412 Where some parties concerned appear in court and reach a mediation agreement while other parties concerned do not express their opinions in writing, the people's court shall describe this fact in the judgment; where the contents of the mediation agreement do no violate laws or damage the legal rights and interests of other parties concerned, the people's court can confirm the mediation agreement in the body party of the judgment.

Article 413 Where the people's procuratorate lodges protest by law against the legally effective judgment, ruling or mediation documents which damage the national interests or the social public interests or put forward the retrial procuratorial suggestion after the discussion of its procuratorial committee, the people's court shall accept.

Article 414 Where the people's procuratorate lodges protest by law against the judgment which has taken legal effect or the judgment of not accepting and rejecting the lawsuit, the people's court shall accept, except the judgment or ruling where the special procedure, the procedure for the recovery of debts,procedure for public invitation to assert claims and the bankruptcy procedure is applicable as well as the judgment or ruling concerning termination of marriage where the procedure for trial supervision is not applicable.

Article 415 Where the people's procuratorate lodges protest or put forward the retrial procuratorial suggestion by law against a judgment or ruling of retrial which has obvious errors according to Item 3 in the first paragraph of Article 209 of the Civil Procedure Law, the people's court shall accept.

Article 416 Where local people's procuratorates at different levels put forward the retrial procuratorial suggestion against the effective judgment or ruling to the people's courts at the same levels according to the request of a party concerned,  the people's court shall accept such suggestion meeting the following conditions:

i. The written retrial procuratorial suggestion and the application of the party concerned of first instance as well as relevant evidence materials have been submitted;

ii. The object suggested to be retried is a judgment or ruling which can be retried according to the Civil Procedure Law and the provisions herein;

iii. The written retrial procuratorial suggestion indicates the judgment or ruling involves the situations specified in the second paragraph of Article 208 of the Civil Procedure Law;

iv. The situations specified in Item 1 and Item 2 in the first paragraph of Article 209 of the Civil Procedure Law;

v. The retrial procuratorial suggestion has been determined through discussion by the procuratorial committee of the people's procuratorate.

Where the suggestion does not meet the provisions of the foregoing paragraph, the people's court can suggest the people's procuratorate making amendment or revoking the suggestions.

Article 417 Where local people's procuratorates at different levels lodge the protest against the effective judgment or ruling according to the request of a party concerned,  the people's court shall judge to hold the retrial within 30 days if the protest meeting the following conditions:

i. The protest document and the application of the party concerned of first instance as well as relevant evidence materials have been submitted;

ii. The object of the protest is a judgment or ruling which can be retried according to the Civil Procedure Law and the provisions herein;

iii. The protest document indicates the judgment or ruling involves the situations specified in the first paragraph of Article 208 of the Civil Procedure Law;

iv. The situations specified in Item 1 and Item in the first paragraph of Article 209 of the Civil Procedure Law.

Where the protest does not meet the provisions of the foregoing paragraph, the people's court can suggest the people's procuratorate making amendment or revoking the protest. Where the people's procuratorate refuses to make amendment or revoke the protest, the people's court can judge not to accept such protest.

Article 418 After the retrial request of a party concerned is rejected by the superior people's court and the people's procuratorate lodges a protest against the original judgment, ruling or mediation documents for the reasons meeting the situations specified in Item 1 to Item 5 of Article 200 of the Civil Procedure Law, the people's court accepting the protest can transfer the protest to the subordinate people's court for retrial.

Article 419 The people's court, upon receipt of the retrial procuratorial suggestion, shall set up a collegiate bench to conduct the investigation within three months. Where the original judgment, ruling or mediation documents are found to be erroneous and should be retried, the people's court shall judge to hold the retrial according to Article 198 of the Civil Procedure Law and inform the parties concerned. Where the people's court determines not to conduct the retrial after investigation, the said people's court shall reply the people's procuratorate in writing.

Article 420 The retrial of the case determined to be retried by the people's court for the protest or the procuratorial suggestion shall not be impacted by the judgment of rejecting the retrial request of the party concerned which has been made before.

Article 421 The people's court, to hold the court retrial of the protested case, shall inform the people's procuratorate, the party concerned and other litigation participants three days before the opening of the retrial. The people's procuratorate at the same level or the people's procuratorate raises the protest shall send delegates to appear in court.

Where the people's procuratorate investigates in and confirms relevant information with the parties concerned or outsiders of the case out of performance of its legal duty of supervision, the said people's procuratorate shall submit such information and explain the information to the court, about which both parties concerned shall be interrogated.

Article 422 Where a party concerned who must participate in the proceedings fails to participate in the proceedings due to reasons other than its own or its agent ad litem's fault, the said party concerned can apply for retrial within 6 months since the date when it gets to know or should have known according to Article Item 8 of Article 200 of the Civil Procedure Law, except the case involves the situations specified in Article 423 herein.

The people's court determines to retry a case upon the request of a party concerned specified in the foregoing paragraph by the procedure at first instance, the said party concerned shall be added as the party concerned and make new judgment or ruling. Where the case is tried by the procedure at second instance and no agreement is reached through mediation, the people's court shall revoke the original judgment or ruling and remand for retrial, and the said party concerned shall be added as a party concerned.

Article 423 According to Article 227 of the Civil Procedure Law, where an outsider of a case is unsatisfied with the rejection to the objection to execution it raises and deems that the contents of the original judgment, ruling or mediation documents are erroneous and damage its civil rights and interests, the said outsider can apply for retrial to the people's court which has made such judgment, ruling or mediation documents within six months since the service of the judgment on the objection to execution.

Article 424 According to Article 227 of the Civil Procedure Law, where the outsider is a necessary party concerned of the co-litigation, the people's court, after judge to conduct the retrial, shall process the retrial according to the second paragraph of Article 422 herein.

Where the outsider is not a necessary party concerned of the co-litigation, the people's court only investigates the contents of the original judgment, ruling or mediation documents which damage the civil rights and interests of the outsider. Where the retrial request is established upon investigation, the original judgment, ruling or mediation document shall be revoked or amended. Where the retrial request is not established, the original judgment, ruling or mediation document shall be supported.

Article 425 Article 340 herein shall be applicable to the procedure for trial supervision.

Article 426 Where a party concerned of small-amount lawsuit applies for retrial of the judgment or ruling to the people's court of first instance for the reasons specified in Article 200 of the Civil Procedure Law, the people's court shall accept such application. Where the reasons for the retrial request are established, the people's court shall determine to conduct the retrial and set up a collegiate bench for retrial. The party concerned shall not appeal against the judgment or ruling of the retrial.

Where a party concerned applies for retrial of the judgment or ruling for the reason that the case should have been tried as a small-amount lawsuit, the people's court shall accept such application. Where the reason for the retrial request is established, the people's court shall determine to conduct the retrial and set up a collegiate bench for retrial. The party concerned can appeal against the judgment or ruling of the retrial.

 

XIX. Procedure for the Recovery of Debts

 

Article 427 Where there are more than two people's courts with jurisdiction, the creditor can apply for a payment order to one of these grassroots people's court.

Where the creditor applies for the payment order to more than two grassroots people's courts with jurisdiction, the lawsuit shall be governed by the people's court firstly files the case.

Article 428 Where the people's court holds that the application is not made as required upon receipt of the application for the payment order submitted by the creditor, the said people's court can notify the creditor of amending the application within a specified period of time. The people's court shall notify the creditor whether it accepts the application or not upon the receipt of the amendment materials.

Article 429 Where the application for the payment order submitted by the creditor meets the following requirements, the grassroots people's court shall accept the application and notify the creditor within five days upon receipt of the application for the payment order:

i. Request for cash or negotiable securities such as bank drafts, promissory notes, cheques, stocks, bonds, treasure bonds and negotiable certificates of deposit;

ii. Request for cash or negotiable securities in certain amount with expressly stated supporting facts and evidence;

iii. The creditor has no obligations for reciprocal payment against delivery;

iv. The debtor is in the territory of China but the whereabouts is unknown;

v. The payment order can be delivered to the debtor;

vi. The people's court which receives the application shall have the jurisdiction;

vii. The creditor has not applied for pre-litigation preservation to the people's court.

Where the application does not meet the provisions in the foregoing paragraph, the people's court shall notify the creditor of not accepting within five days upon receipt of the application for payment order.

The grassroots people's court can accept the case concerning the payment order without the limitation of the amount of obligation.

Article 430 After the people's court accepts the application, one judge shall make the investigation. The people's court shall hold to reject the application if finding the application involves one of the following conditions:

i. The applicant is not qualified for a party concerned;

ii. The proof documents of the payment of cash or negotiable securities do not specify the overdue interest or liquidated damages or compensation and the creditor insists on claiming for such overdue interest, liquidated damages or compensation;

iii. The cash or negotiable securities claimed to be paid are income from illegal activities;

iv. The cash or negotiable securities claimed to be paid are not mature or the amount is not certain.

Where the people's court finds the application for payment order does not meet the accepting requirements of this Interpretation after accepting the application, the people's court shall hold to reject the application within 15 days upon the day of accepting.

Article 431 Where the debtor refuses to accept the payment order, the people's court can adopt lien service.

Article 432 The people's court shall judge to terminate the procedure for the recovery of debts in any of the following situations. Where the payment order has been issued, such payment order shall automatically become void.

i. The creditor institutes another lawsuit against the same debtor-creditor relationship after the people's court has accepted the application for payment order made by the said creditor;

ii. The payment order cannot be delivered to the debtor within 30 days from the date of issue;

iii. The creditor withdraws the application before the debtor receives the payment order.

Article 433 Where the debtor does not raise any objection in writing within the specified period upon receipt of the payment order but lodges a lawsuit to another people's court, the legal effect of the payment order shall not be impacted.

Where the debtor does not raise any objection within a specified period of time, it shall be deemed as that the debtor has not raised any objection.

Article 434 Where a creditor makes several requests for payment to the debtor in the same application for payment order based on the same creditor-debtor relationship and the debtor raises objection to one or several of the requests, the legal effect of other requests for payment shall not be impacted.

Article 435 Where a creditor makes several requests for payment to several debtors with regard to separable obligation of payment based on the same creditor-debtor relationship and one or several debtors raise objection to the application, the legal effect of other requests for payment shall not be impacted.

Article 436 The payment order issued to the principal debtor of the debts with collateral shall have not binding force on the guarantor.

Where the debtor institutes an independent lawsuit against the guarantee relationship, the payment order shall become void since the date when the people's court accepts the lawsuit.

Article 437 Where the written objection raised by the debtor is found to be involved in any of the following situations in investigation, the people's court shall hold that the objection is established and judge to terminate the procedure for the recovery of debts and the payment order shall automatically become void:

i. The situations where the application shall not be accepted as specified herein;

ii. The situations where the application shall be rejected as specified herein;

iii. The situations where the procedure for the recovery of debts shall be terminated;

iv. The people's court has reasonable doubt about whether the payment order meets the issuing conditions.

Article 438 Where the debtor has no objection about the debt itself but raises objection that it lacks the capability of repaying the debt, the repayment period of the debt shall be extended or the ways of repayment shall be changed, the legal effect of the payment order shall not be impacted.

Where the people's court holds that the object is not established after investigation, the objection shall be rejected.

The objection made by the debtor in oral form shall be void.

Article 439 Where the debtor requests to revoke the objection before the people's court makes the judgment to terminate the procedure for the recovery of debts or reject the objection.

Where the debtor goes back on revocation of the objection, the people's court shall not support.

Article 440 Where a party concerned applying for the payment order disagrees to lodge a lawsuit after the payment order becomes invalid, the said party concerned shall raise its objection to the people's court accepting the application within 7 days upon receipt of the judgment on terminating the procedure for the recovery of debts.

The disagreement of the party concerned applying for the payment order to lodge a lawsuit shall not impact the said party concerned to lodge a lawsuit to another people's court with jurisdiction.

Article 441 Where the party concerned applying for the payment order does not raise any objection to the people's court accepting the application within 7 days upon receipt of the judgment on terminating the procedure for the recovery of debts after the invalidation of the payment order, it shall be deemed as that the said party concerned lodges a lawsuit to the people's court accepting the application.

The time when the creditor submits the application for payment order shall be the time it lodges the lawsuit to the people's court.

Article 442 During the period when the creditor applies for the execution of the payment order to the people's court, Article 239 of the Civil Procedure Law shall apply.

Article 443 Where president of the people's court finds that there is indeed any error in the payment order which has taken legal effect, thus should be revoked, the payment order shall be submitted to the judicial committee for discussion. Where the committee determines to revoke the payment order, the application of the creditor shall be rejected.

 

XX. Procedure for Public Invitation to Assert Claims

 

Article 444 The "notes holder" specified in Article 218 of the Civil Procedure Law refers to the ultimate holder of the notes before got stolen, lost or damaged.

Article 445 The people's court shall immediately carry out an investigation upon the receipt of the application for the public invitation to assert claims and decide whether to accept the application or not. Where the application is found to meet the accepting requirements, the people's court shall notify the applicant that the application is accepted and notify the payer to stop making the payment. Where the application is found to not meet the accepting requirements, the people's court shall judge to reject the application within seven days.

Article 446 Where a creditor applies for the public invitation to assert claims for the loss of the notes, the people's court shall determine to accept or not based on the evidence such as the counterfoil, copy of the lost notes, the proof on notes issuance provided by the notes issuer, the certificate on the applicant's legal acquisition of the notes, the notice on the loss reporting and payment suspension of the bank, and police report.

Article 447 The announcement on application acceptance issued by the people's court according to Article 219 of the Civil Procedure Law shall indicate the following information:

i. Name or tile of the applicant of the public invitation to assert claims;

ii. Type, number, face value, issuer, endorser, holder, term of payment of the notes and the type, number, limits of rights, obligee, obligor and date of execution of other documents of title which can be used to apply for the public invitation to assert claims;

iii. The period for reporting the rights;

iv. The legal consequences of the interested parties' transferring the documents of title during the period for the public invitation to assert claims without reporting.

Article 448 The announcement shall be published on relevant newspapers or other media and the bulletin board of the people's court on the same day. Where there is an stock exchange at the place where the people's court is located, the announcement shall also be published at the stock exchange on the same day.

Article 449 The announcement period shall not be less than 60 days, and the expiry date of the announcement shall not be earlier than the date 15 days after the date of payment of the notes.

Article 450 Where the interested party reports the interests after the expiration of the reporting period but before the judgment, the second and third paragraphs of Article 221 of the Civil Procedure Law shall apply.

Article 451 If an interested party declares the rights, the people's court shall notify the said interested party to present the notes to the court and notify the applicant of the public invitation to assert claims to check the notes during a specified period. Where the notes for which the applicant of the public invitation to assert claims applies the public invitation are inconsistent with the notes presented by the interested party, the people's court shall reject the declaration of the interested party.

Article 452 Where there is no one declaring the rights during the declaration or where the declaration is rejected, the applicant shall apply for judgment within one month since the expiration of the public invitation to assert claims. Where no application for judgment is made till the expiration date, the people's court shall terminate the procedure for public invitation to assert claims.

Where the people's court judges to terminate the procedure for public invitation to assert claims, it should notify both the applicant and the payer.

Article 453 The applicant of public invitation to assert claims shall have the right to request the payer to make the payment according to the judgment since the announcement date of the judgment.

Where the payer refuses to make the payment and the applicant institutes a lawsuit to the people's court, which meets the lodging conditions specified in Article 119 of the Civil Procedure Law, the people's court shall accept such lawsuit.

Article 454 The case where the procedure for public invitation to assert claims is applicable for trial can be tried independently by a judge. Where the notes are announced to be void, a collegiate bench shall be set up for trial.

Article 455 Where the applicant of the procedure for public invitation to assert claims wants to withdraw the application, such withdrawal shall be raised before the public invitation to assert claims.

Article 456 The people's court shall notify the payer to stop paying according to Article 220 of the Civil Procedure Law as required by the regulations on property preservation. Where the payer refuses to stop paying upon receipt of the notice to stop payment, the payer shall still assume the obligation of payment after judgment in addition to adopting the mandatory measures specified in Article 111 and Article 114 of the Civil Procedure Law.

Article 457 After the people's court terminates the procedure for public invitation to assert claims, the the applicant of the public invitation or the reporter lodges a lawsuit. Where such lawsuit is lodged out of the dispute over the title of the notes, the lawsuit shall be in the jurisdiction of the people's court at the place where the notes are paid or the people's court at the domicile of the defendant. Where such lawsuit is not lodged out of the dispute over the title of the notes, the lawsuit shall be in the jurisdiction of the people's court at the domicile of the defendant.

Article 458 The judgment on terminating the public invitation to assert claims made according to Article 221 of the Civil Procedure Law shall be signed by the judge and clerk and attached with the seal of the people's court.

Article 459 According to Article 223 of the Civil Procedure Law, where an interested party lodges a lawsuit to a people's court, the people's court may apply the general procedure as disputes over notes.

Article 460 "Justifiable reasons" specified in Article 223 of the Civil Procedure Law include:

i. The interested party fails to know the facts publicly announced due to accidental events or Force Majeure;

ii. The interested party fails to know the facts publicly announced for limited person freedom, or the interested party cannot report the right in person or through authorization, though it knows the facts publicly announced;

iii. The situations not belong to the public invitation to assert claims specified by law;

iv. No announcement has been made or the announcement is not made as required by laws;

v. Other objective reasons for the interested party fails to report the interests to the people's court before the judgment.

Article 461 According to Article 223 of the Civil Procedure Law, where an interested party requests a people's court to revoke the invalidation judgment, the applicant shall be listed as a defendant.

Where the interested party only requests to be confirmed as the legal holder of the notes, the people's court shall indicate in the judgment that when the judgment on confirming the interested party as the holder of the notes is made, the invalidation judgment shall be immediately revoked.

 

XXI. Execution Procedure

 

Article 462 The judgment on realizing the real right for security, the judgment on confirming the mediation agreement and the payment order which have taken legal effect shall be executed by the people's court which made such judgment or payment order or the people's court at the same level at the location of the executed property.

The property determined as has no owner shall be confiscated to the possession of the country or the collectives by the people's court which makes the judgment.

Article 463 The effective legal documents submitted by a party concerned applying for execution to the people's court shall meet the following requirements:

i. The subjects of the rights and obligations are defined;

ii. The contents of payment are defined.

Where the legal documents confirm further performance of the contract, the detailed contents to be further performed shall be specified.

Article 464 According to Article 227 of the Civil Procedure Law, where an outsider of a case raises objection to the subject of the execution, the said outsider shall raise the objection before the end of the procedure of executing the subject.

Article 465 The objection raised by the outsider shall be processed according to the following situations after investigation:

i. Where the outsider does not enjoy the rights and interests in the execution subject which are sufficient to exclude compulsory execution, the people's court shall judge to reject the objection;

i. Where the outsider enjoys the rights and interests in the execution subject which are sufficient to exclude compulsory execution, the people's court shall judge to suspend the execution.

The people's court shall not dispose of the execution subject within fifteen days after the service of the judgment on the objection to execution to the outsider of the case.

Article 466 Where the party applying for execution and the party subject to execution reach a mediation agreement and request to suspend or revoke the execution application, the people's court can judge to suspend or terminate the execution.

Article 467 Where one party concerned does not perform or does not perform completely the mediation agreement reached during the execution between both parties out of their free will and the other party applies for the execution of the original effective legal documents, the people's court shall judge to resume the execution and the contents which have been performed in the mediation agreement shall be excluded. Where the mediation agreement has been fully performed, the people's court shall not resume the execution.

Article 468 For the request to resume the original effective legal documents, Article 239 on the application during the execution period of the Civil Procedure Law shall apply. Where the execution of the original effective legal documents is suspended due to the mediation agreement reached during the execution, the execution period shall be recounted from the last date of the performance period agreed in the mediation agreement.

Article 469 Where the people's court determines to delay the execution according to Article 231 of the Civil Procedure Law,if there is a fixed term for the guarantee, the period of delay shall be the same as the term for the guarantee, which however shall not be longer than a year. Where the executed party or the guarantor conducts the acts such as transferring, concealing, selling or damaging to the property under the guarantee during the delayed period, the people's court can resume the compulsory execution.

Article 470 Where a party concerned provides the execution guarantee to the people's court according to Article 231 of the Civil Procedure Law, the party subject to execution or another party can provide the property guarantee or another party can provide a warranty. The guarantor shall have the capability of performing the judgment or assuming the liability for damage on behalf of the party subject to execution.

Where another party provides the execution guarantee, the party shall produce a letter of guarantee to the executing people's court and deliver the copy of the letter of guarantee to the party applying for the execution. Where the party subject to execution or another party provides the property guarantee, the formalities shall be performed by referring to relevant provisions of the Property Law and the Guarantee Law.

Article 471 Where the party subject to execution still does not perform its obligations after the expiration of the delayed period granted by the people's court, the people's court can directly execute the property provided as the guarantee or judge to execute the property of the guarantor which however to extent of the property corresponding to the obligations to be performed by the guarantor.

Article 472 According to Article 232 of the Civil Procedure Law, where the legal entity or other organizations under execution as the party subject to execution stand separately or merge, the people's court can make a judgment to list the legal entity or other organizations after the division or merger as the party subject to execution. Where such legal entity or other organizations are deregistered and there is a party assuming the rights and obligations according to relevant substantial law, the people's court can judge the said party assuming the rights and obligations as the party subject to execution.

Article 473 Where other organizations cannot perform the obligations being specified in the legal document in execution, the people's court can judge to execute the property of the legal person or the citizen of other organizations which assume the obligations according to the law.

Article 474 Where the title of the legal person of the party subject to execution or another organization is changed in execution, the people's court can judge the legal person or the organization to be the party subject to execution.

Article 475 Where the citizen as the party subject to execution deceased and the successor of such citizen has not waived the right of inheritance, the people's court can judge to change the party subject to execution and the successor shall pay the debt to the value of the heritage. Where the successor has waived the right of inheritance, the people's court can directly execute the inheritance of the party subject to execution.

Article 476 Where the legal document is revoked by a relevant authority or organization after other legal documents have been executed by the people's court according to the law, Article 233 of the Civil Procedure Law shall be applicable upon the request of the party concerned.

Article 477 Where some of the items judged by the arbitration authority involve the situations specified in the second and third paragraphs of Article 237 of the Civil Procedure Law, the people's court shall judge not to execute the said items.

Where the items not to be executed is inseparable from the other items, the people's court shall judge not to execute the arbitration award.

Article 478 According to the second and third paragraphs of Article 237 of the Civil Procedure Law, after the people's court judges not to execute the arbitration award, if a party concerned raises an objection or reconsideration to the judgment, the people's court shall not accept the objection or the reconsideration. The parties concerned can reach a new written mediation agreement on this civil dispute and apply for arbitration or lodge a lawsuit to the people's court.

Article 479 Where the party subject to execution fully or partly transfers the property right which has been sealed up, detained or frozen by the people's court to an outsider of the case through the arbitration process during the execution, the progress of the execution by the people's court shall not be impacted.

The outsider, if not satisfied, can raise an objection according to Article 227 of the Civil Procedure Law.

Article 480 The notarized creditor's right document specified in the second paragraph of Article 238 of the Civil Procedure Law can be held to be indeed erroneous in any of the following situations:

i. The notarized creditor's right document is not a debt document to which the effects of compulsory execution shall not be granted;

ii. Severe violation against the notarization procedure such as that the party subject to execution does not appear at site in person or by the entrusted agent for the notarization;

iii. The contents of the notarized creditor's right document are inconsistent with the facts or violate the mandatory legal provisions;

iv. The notarized creditor's right document does not indicate that the party subject to execution agrees to accept the compulsory execution when it fails to perform the obligation or fails to perform the obligations in a complete manner.

The people's court can judge not to execute the notarized creditor's right document if it holds that it is against the social public interests to execute the document.

After the people's court has made the judgment not to execute the notarized creditor's right document, the parties concerned and the interested parties of the notarized items can lodge lawsuit on the disputes over the creditor's right.

Article 481 Where a party concerned requests not to execute an arbitration award or a notarized creditor's right document, the said party concerned shall submit the request to the executing people's court before the conclusion of the execution.

Article 482 The people's court shall send the execution notice within ten days upon receipt of the application for the execution document or after the transfer of such execution document.

The execution notice shall order the party subject to execution to perform the obligations specified in the legal document. Besides, the notice shall also notify the party subject to execution to assume the interest or amount of debt for delayed performance specified in Article 253 of the Civil Procedure Law.

Article 483 Where the party applying for execution applies for compulsory execution to the people's court after the expiration of the period for applying execution, the people's court shall accept such application. Where the party subject to execution raises any objection during the period for applying execution and the people's court holds that the objection shall be established after investigation, the execution shall not be carried out.

Where the party subject to execution, having performed part or all of the obligations, requests for reversal based on the reason that it did not know the period for applying execution has expired, the people's court shall not give its support.

Article 484 Where the party subject to execution and its legal representative, person in charge or actual controller who must be investigated and interrogated, do not appear in court without justifiable reasons upon summon by law, the people's court can have them in court by compulsory summon.

The people's court shall investigate and interrogate the party summoned in a timely manner, and the investigation and interrogation shall not be longer than eight hours. Where the situation is so complicated that the retention measure can be adopted by law, the investigation and interrogation shall not be longer than twenty-four hours.

When a people's court adopts the retention summon outside its jurisdiction, the said people's court can summon the party retained to the local people's court which shall provide assistance to the said people's court.

Article 485 The people's court has the right to inquire about the information on the identity and property of the party subject to execution, and the unit or individuals have relevant information must conduct according to the notice for execution assistance.

Article 486 The people's court shall not dispose of the executed property, if not such property has not been sealed up, retained or frozen. As for the property that can be directly deducted and transferred such as the bank deposits, the deduction and transfer judgment made by the people's court shall also have the legal effect of freezing such property.

Article 487 The people's court shall not freeze the bank deposits of the party subject to execution for a period longer than a year, seal up and retain the current assets of the party subject to execution for a period longer than two years, or seal up the real estate and freeze other property for a period over three years.

Where the execution applicant applies for an extension of the period, the people's court shall perform the seal-up, retention and freezing formalities before the expiration of the period for seal-up, retention and freezing and the period of extension shall not exceed the period specified in the foregoing paragraph.

The people's court also can perform the formalities for the extended seal-up, retention and freezing ex officio.

Article 488 According to Article 247 of the Civil Procedure Law, where the people's court has to auction the property of the party subject to execution during the execution, the auction can be held by the people's court itself or by an auction agency with relevant qualifications.

Where the auction is held by an auction agency, the people's court shall supervise the auction activity.

Article 489 Where the auction site shall be investigated and inspected for the auction assessment, the people's court shall order the party subject to execution and the parties with the obligation of assistance to cooperate. Where the party subject to execution or the parties with the obligation of assistance do not cooperate, the people's court can make the investigation and inspection in a compulsory manner.

Article 490 Where the people's court has to sell the property of the party subject to execution during the enforcement, the said people's court can assign relevant units to sell such property or sell it directly by itself.

The people's court and its staff shall not buy the property on sale.

Article 491 Upon the approval of the party applying for execution and the party subject to execution, and on the premise of not damaging the legal rights and interests of other creditor's rights and the social public interests, the people's court can directly deliver the property after price evaluation to the party applying for execution for repayment of the debts rather than auction or sell the property.  The party subject to execution shall continue to repay the outstanding debts.

Article 492 Where the property of the party subject to execution cannot be auctioned or sold, upon the approval of the party applying for execution and on the condition of not damaging the legal rights and interests of other creditors and the social public interests, the people's court can deliver the property after price evaluation to the party applying for execution for repayment of the debts or management. Where the party applying for execution refuses to take or manage such property, the property shall be returned to the party subject to execution.

Article 493 Where the auction is concluded or the judgment is made to repay the debt with the property by legal procedure, the ownership of the subject matter shall be transferred to the buyer or the creditor who accepts the property to compensate for the debt when the auction is concluded or the property is delivered to the creditor.

Article 494 Where the execution subject is an item designated, the designated item shall be executed. Where the designated item has been damaged or lost indeed, reimbursement can be made upon the approval of both parties concerned.

Where both parties fail to reach an agreement on the reimbursement, the people's court shall terminate the execution procedure. The party applying for execution can institute another lawsuit.

Article 495 Where another party holding the property or notes and certificates designated in the legal document which should be delivered refuses to deliver such property or bills and documents upon receipt of the execution assistance sent by the people's court according to the second and third paragraph of Article 249 of the Civil Procedure Law, the people's court can adopt the compulsory execution measure and process according to Article 114 and Article 115 of the Civil Procedure Law.

Where the property or notes and certificates are damaged or lost during the period when being hold by another party, it can be processed according to Article 494 herein.

The said party, if claiming to be in legal possession of such property or notes and certificates, can raise an objection to execution according to Article 227 of the Civil Procedure Law.

Article 496 Where the party subject to execution concealed materials such as the property or accounting books during the execution, the people's court should order the party subject to execution to turn in the concealed property, accounting books and other materials while processing the party subject to execution according to Item 6 in the first paragraph of Article 111 of the Civil Procedure Law. Where the party subject to execution refuses to turn in such materials, the people's court can take measures to search for such materials.

Article 497 The searchers shall get dressed as required and present the search order and the work certificate.

Article 498 People unconcerned shall not enter the search site when the people's court is doing the search. Where the object of search is a citizen, a notice shall be sent to the party subject to execution or his/her adult family member as well as the grassroots organizations to send representative to the site. Where the object of search is a legal entity or other organizations, a notice shall be sent to notify the legal representative or the principle person in charge to appear at the search site. Where such people refuse to appear, the search shall be conducted as scheduled.

Body search on women shall be conducted by female executors.

Article 499 The property to which the seal-up and retention measures should be adopted during the search should be handled as specified in the second paragraph of Article 245 and Article 247 of the Civil Procedure Law.

Article 500 A written record shall be made for the search, which shall be signed and marked with finger print or sealed by the searcher, the party searched or other people present. It should be put down in the written record if the above mentioned people refuse to sign, mark with finger or seal on the written record.

Article 501 When executing the matured creditor's right of the party subject to execution against a third party, the people's court can make the judgment to freeze the creditor's right and notify this third party to perform to the party applying for execution.

Where the said third party has any objection against the matured creditor's rights and the party applying for execution requests for compulsory execution of the part causing objection, the people's court shall not give its support. Where an interested party has any objection to the matured creditor's right, the people's court shall process as specified in Article 227 of the Civil Procedure Law.

Where the said third party denies the matured creditor's right determined by the effective legal document, the people's court shall not give its support.

Article 502 Where the people's court has to perform the formalities of transferring relevant certificates of the property right such as the property ownership certificate, land deed, certificate of forest and woodland tenure right, patent certificate, certificate of trademark, transport license, it can perform such formalities as specified in Article 251 of the Civil Procedure Law.

Article 503 Where the party subject to execution does not perform the obligations specified in the effective legal document and the obligations can be performed by another party, the people's court can designate a third party to perform on behalf of the party subject to execution. Where the laws and administrative rules provide restrictions on the qualification of the party performing the obligations, the people's court shall select one performing agent to perform the obligations on behalf of the party subject to execution. The performing agent can be determined through public bidding.

The party applying for execution can recommend a performing agent among the qualified parties or apply to perform by itself, which shall be determined by the people's court.

Article 504 The amount of the agency performance fee shall be determined by the people's court according to the practical situations and shall be prepaid by the party subject to execution within a specified period of time. Where the party subject to execution does not prepay the fee, the people's court can collect the fee through compulsory execution.

After the end of the agency performance, the party subject to execution can review and copy the charge list and major vouchers.

Article 505 Where the party subject to execution does not conduct the acts specified in the legal document and the acts can only be completed by the party subject to execution, the people's court can process as specified in Item 6 in the first paragraph of Article 111 of the Civil Procedure Law.

Where the party subject to execution still fails to perform its obligations during the period specified by the people's court, the people's court can deal with it again as specified in Item 6 in the first paragraph of Article 111 of the Civil Procedure Law.

Article 506 Where the performance is delayed by the party subject to execution, the interest of the delayed period or the penalty on delayed performance shall be calculated from the expiry date of the period specified in the ruling or other legal documents.

Article 507 Where the party subject to execution fails to perform the obligation of non-monetary payment within the period specified in the judgment, ruling and other legal documents, the party subject to execution shall pay the penalty on delayed performance, no matter whether it has caused any loss to the party applying for execution or not. In case of any loss, the party subject to execution shall compensate the party applying for execution for the losses in doubled amount. Where there is no loss, the penalty on delayed performance can be determined by the people's court according to specific situations of the case.

Article 508 Where the party subject to execution is a citizen or other organizations, other creditors of the party subject to execution who have acquired the execution basis, and who have found the property of the party subject to execution is insufficient to discharge all debts, can apply to the people's court to participate in the distribution of the property after the start of the execution procedure.

The creditors enjoying the priority or the real right for security in the property sealed up, retained or frozen by the people's court can directly apply to participate in the distribution of the property, claiming for the priority of compensation.

Article 509 The applicant shall submit an application for participation in property distribution. The application shall indicate the participation in property distribution and the facts and reasons that the party subject to execution cannot discharge all debts to which the execution basis shall be attached.

The application for participation shall be submitted after the start of the execution procedure but before the completion of execution of the property of the party subject to execution.

Article 510 During the execution of property distribution, the amount from the execution, having been deducted by the execution fee and serviced the debts enjoying the priority of compensation, shall be in principle distributed to repay the general debts by the percentage of the participation. Having discharged the remaining debts, the party subject to execution shall continue to repay the outstanding debts. If the creditors find that the party subject to execution has any other property, they can request the people's court to execute such property at any time.

Article 511 Where a number of creditors apply to participate in the distribution of the executed property, the executing people's court shall make a property distribution plan and deliver such plan to the creditors and the party subject to execution. In case any objection is raised by the creditors or the party subject to execution against the distribution plan, they shall raise a written objection to the executing people's court within fifteen days upon the receipt of the distribution plan.

Article 512 Where a creditor or the party subject to execution raises any objection to the distribution plan in writing, the executing people's court shall inform other creditors and the party subject to execution that have not raised any objection.

Where the creditors and the party subject to execution that have not raised any objection do not put forward any dissent within fifteen days upon receipt of the notice, the executing people's court can review and modify the distribution plan and distribute the property according to the opinions of the party raising the objection. Where the creditors and the party subject to execution put forward dissents, the people's court shall inform the party raising the objection. The party raising the objection can lodge a lawsuit against the creditors and the party subject to execution raising dissents within fifteen days upon receipt of the notice to the executing people's court. Where the party raising the objection does not lodge a lawsuit, the executing people's court shall distribute the property according to the original distribution plan.

Where the property is distributed during the period of litigation, the executing people's court shall withdraw and deposit an amount equal to the disputed debts.

Article 513 In the execution, where the legal person of an enterprise, as the party subject to execution, meets the requirements specified in the first paragraph of Article 2 of the Enterprise Bankruptcy Law, the executing people's court shall, upon the approval of one of the parties applying for execution or the party subject to execution, judge to suspend the execution against the said party executed and transfer the materials relevant to the executed case to the local people's court at the place where the party subject to execution is located.

Article 514 The local people's court at the place where the party subject to execution is located shall inform the executing people's court of the ruling on whether accepting the bankruptcy case or not within thirty days upon receipt of the materials relevant to the executing case. Where the local people's court determines not to accept the case, it shall return such relevant materials to the executing people's court.

Article 515 The local people's court at the place where the party subject to execution is located determines to accept the bankruptcy case, the executing people's court shall terminate the preservation measure against the property of the party subject to execution.  Where the local people's court declares the party subject to execution to be bankrupt, the executing people's court shall judge to terminate the execution against the party subject to execution.

Where the local people's court at the place where the party subject to execution is located determines not to accept the bankruptcy case, the executing people's court shall resume the execution.

Article 516 Where the party concerned does not agree to be transferred for bankruptcy proceedings or the people's court at the place where the party subject to execution is located refuses to accept the bankruptcy case, the executing people's court shall deduct the amount from selling of the executed property by the execution fee. Having been deducted by the amount used to discharge the debts enjoying the priority of compensation, the remaining amount shall be used to repay the general debts in the sequence of being sealed up, retained or frozen in property preservation or execution.

Article 517 The request made by the creditors to the people's court to resume the execution according to Article 254 of the Civil Procedure Law shall not be restricted by the request period specified in Article 239 of the Civil Procedure Law.

Article 518 Where the party subject to execution does not perform the obligations determined in the legal document, the people's court can also include the party subject to execution into the list of dishonest parties executed based on the severity of its breach of the legal document and report the information on the failure of the party subject to execution in performing all or part of the obligations to the unit it belongs to, the credit information service and other relevant authorities, in addition to impose the punishment on the party subject to execution.

Article 519 Where there is no property to be executed in the property investigation, the people's court can judge to terminate the execution procedure upon the confirmation of the party applying for execution or after the executing people's court sets up a collegiate bench to confirm and submits the results to the president for approval.

Where the execution is terminated as specified in the foregoing paragraph, but the party applying for execution discovers the property of the party subject to execution which can be executed, the said party applying for execution can request for execution again.  The request shall not be restricted by the period of execution request.

Article 520 Where the party concerned applies for execution again within the period for requesting execution specified in Article 239 of the Civil Procedure Law after the execution is terminated due to the withdrawal application, the people's court shall accept such application.

Article 521 Where the party subject to execution or a third party conducts any acts to the detriment of the subject matter of the execution within six months after the termination of the execution, the people's court can get rid of the impairment as requested and punish the said party according to Article 111 of the Civil Procedure Law. Where such acts have caused losses to the creditors or other people, the victims can lodge another lawsuit.

 

XXII. Special Provisions on Civil Actions Involving Foreign Parties

 

Article 522 The people's court can determine a civil case as one involving foreigners or foreign affairs in any of the following situations:

i. One or both parties concerned are foreigners, stateless persons, foreign enterprises or organizations;

ii. The habitual residence of one or both parties concerned is outside the territory of the People's Republic of China;

iii. The subject matter is outside the territory of the People's Republic of China;

iv. The legal facts incurring, modifying or eliminating the civil relationship occur outside the territory of the People's Republic of China;

v. Other situations can be recognized as a civil case involving foreigners or foreign affairs.

Article 523 A foreigner who participates in the proceedings shall submit the certificates proving his/her identity such as passport to the people's court.

The documents provided by foreign enterprises or organizations which participate in the proceedings to the people's court to their identity shall be notarized by the notary organ of the country of origin and be verified by the embassy and consulate of the country based in China, or such foreign enterprises or organizations shall perform the proving formalities as specified in relevant agreements reached between the People's Republic of China and the country of origin.

The certificate submitted by a person participating in the proceedings on behalf of a foreign enterprise or organization to the people's court to prove that he/she has the authorization to participate in the proceedings as the representative of such enterprise or organization shall be notarized by the notary organ of the country of origin and be verified by the embassy and consulate of the country based in China, or such person shall perform the proving formalities as specified in relevant agreements reached between the People's Republic of China and country of origin.

"The country of origin" specified in this article refers to the country where the foreign enterprise or organization is incorporated and registered, which can be a third country where the foreign enterprise or organization has performed the registration formalities.

Article 524 According to Article 264 of the Civil Procedure Law and Article 523 herein, where the foreign party concerned, whose country of origin has not established the diplomatic relationship with the People's Republic of China, has to perform the notarization and verification formalities, such enterprise can be notarized by the notary organ of the country of origin and verified by the embassy and consulate of a third country based in such country of origin which has established diplomatic relationship with the People's Republic of China, which then transferred to the embassy and consulate of this third country based in China for verification.

Article 525 Where the representative of a foreigner or foreign enterprise or organization signs the power of attorney entrusting the agent to conduct the civil lawsuit under the witness of the judge of the people's court, the people's court shall recognize such power of attorney.

Article 526 Where the representative of a foreigner or foreign enterprise or organization signs the power of attorney entrusting the agent to conduct the civil lawsuit in the territory of the People's Republic of China, which has been notarized by the notary organ of China, the people's court shall recognize such power of attorney.

Article 527 A party concerned, when submitting written documents in a foreign language to the people's court, shall also submit a Chinese translation of such documents to the people's court.

Where the parties concerned has dissents against the Chinese translation of such document, both parties shall entrust a translation agency to provide the translated version of such documents. Where both parties concerned cannot reach an agreement on the selection of the translation agency, the people's court shall have the right to designate the translation agency.

Article 528 The party concerned with foreign nationality of a civil lawsuit involving foreigners or foreign affairs can entrust a native person as his/her the embassy and consulate of a foreign country based in China or entrust a lawyer from his/her own country as a non-lawyer agent ad litem. An official of the embassy and consulate of a foreign country based in China can serve as an agent ad litem in his personal name under the entrustment of a citizen of the country of origin, but shall not enjoy diplomatic or consular privileges and immunities.

Article 529 In a civil lawsuit involving foreigners or foreign affairs, the embassy and consulate of a foreign country based in China can approve its officials, under the condition that a citizen not in the territory of the People's Republic of China who is a party concerned of the case, to engage a lawyer or citizen of the People's Republic of China to be the agent ad litem of such citizen as diplomatic representatives.

Article 530 In a lawsuit involving foreigners or foreign affairs, where both parties concerned reach an agreement through consultation, a mediation document shall be made. Where the parties concerned request to issue a judgment, the people's court can make the judgment based on the contents of the agreement and deliver such judgment to the parties concerned.

Article 531 The parties concerned of the disputes over a contract or the rights and interests in property which involve foreigners or foreign affairs can select a foreign court which has an actual contact site with the disputes such as the domicile of the defendant, the place of contract performance, the place of contract execution, the domicile of the plaintiff, the location of the subject matter, and the place where the infringement occurs to govern the lawsuit.

According to Article 33 and Article 266 of the Civil Procedure Law, the parties concerned of the cases under the exclusive jurisdiction of the people's courts of the People's Republic of China shall not select foreign courts to govern, unless both parties concerned agree to turn to arbitration.

Article 532 Where the civil case involve the following situations, the people's court can judge to reject the lawsuit made by the plaintiff and inform the said plaintiff that it will be more convenient to lodge a lawsuit to a foreign court:

i. The defendant raises that it will be more convenient to lodge the lawsuit to a foreign court or raises an objection to the jurisdiction of the people's court;

ii. There is no agreement governed by the people's courts of the People's Republic of China between the parties concerned;

iii. The case does not belong to the exclusive jurisdiction of the people's courts of the People's Republic of China;

iv. The case does not involve the interests of the People's Republic of China, its citizens or other organizations;

v. The major disputed fact of the case does not occur in the territory of the People's Republic of China and the laws of China is not applicable to the case so that the people's court has great difficulties in determining the facts and applicable laws during the trial of the case;

vi. The foreign court has the jurisdiction on the case and enjoys more convenience in trying the case.

Article 533 As for a case on which both the people's courts of the People's Republic of China and foreign courts have the jurisdiction, where a party concerned lodges a lawsuit to a foreign court while the other party concerned institute another lawsuit to a people's court of China, the said people's court can accept the lawsuit.  Where the foreign court applies or the parties concerned request the people's court to acknowledge and execute the judgment or ruling it has made on the case, the people's court shall not approve, unless otherwise specified in the international agreements reached or participated in by both parties.

Where the judgment or ruling made by the foreign court have been acknowledged by the people's court and a party concerned lodges a lawsuit to the people's court out of the same dispute, the people's court shall not accept.

Article 534 As for a case of which a party concerned has not domicile in the territory of the People's Republic of China, where the charging document is delivered by means of announcement, the said party concerned has not responded to the lawsuit till the expiration of the announcement period, the people's court shall still deliver the judgment to the party concerned as specified in Item 8 of Article 267 of the Civil Procedure Law after the default judgment. Where the party concerned does not institute an appeal till the expiration of the 30-day period of appeal after three months since the delivery of the judgment through announcement.

Article 535 Where the representative of a foreigner or or the major person in charge of a foreign enterprise or organization is in the territory of the People's Republic of China, the people's court can deliver the judgment to the representative of the natural person or or the major person in charge of the foreign enterprise or organization.

The major person in charge of an foreign enterprise or organization refers to the directors, supervisors and executives of the enterprise or organization.

Article 536 Where the receiver's country of origin allows the judgment to be delivered by mail, the people's court can deliver the judgment by mail.

The proof of service shall be attached to the judgment when delivering by mail. Where the receiver signs on the receipt of the mail rather than on the proof of service, the judgment shall be deemed as delivered and the date of signing shall be the date of service.

Where the proof document of service has not been received three months after the date of mailing and there is no information to recognize that the judgment has been delivered, the judgment shall be deemed as cannot be delivered by mail.

Article 537 Where the people's court delivers the charging document to the parties concerned by announcement at the first instance, it can directly deliver the document by announcement at second instance, except that the people's court can deliver the document by others means than announcement.

Article 538 With regard to the appeal period against the judgment or ruling made by the people's court of first instance for the parties concerned who have domicile in the territory of the People's Republic of China, the period specified in Article 164 of the Civil Procedure Law shall apply; for the parties who have no domicile in the territory of the People's Republic of China, the period specified in Article 269 of the Civil Procedure Law shall apply. Where the parties do not appeal till the expiration of the appeal period, the judgment or ruling made by the people's court of first instance shall take legal effect.

Article 539 The people's court shall not be restricted by Article 204 of the Civil Procedure Law during the period for making the investigation in the retrial request made by a party concerned of a civil case involving foreigners or foreign affairs.

Article 540 Where an applicant applies to the people's court for executing an arbitration award made by a Chinese arbitration authority making arbitration involving foreigners or foreign affairs, the said applicant shall submit a written application, to which the original of the arbitration award shall be attached. Where the applicant is a foreign party concerned, the application shall be made in Chinese.

Article 541 Where the people's court executes the arbitration award made by a Chinese arbitration authority making arbitration involving foreigners or foreign affairs and the party subject to execution raises a plead based on the reason that the case involves the situations specified in the first paragraph of Article 274 of the Civil Procedure Law, the said people's court shall make investigation in the plead made by the party subject to execution and judge to execute or not execute the arbitration award based on the investigation results.

Article 542 According to Article 272 of the Civil Procedure Law, where the Chinese arbitration authority making arbitration involving foreigners or foreign affairs submits the preservation application of the party concerned to the people's court for judgment, the people's court can make the investigation and judge to conduct the preservation or not. If a verdict is given for preservation, the people's court shall order the applicant to provide guarantee. Where the applicant fails to provide guarantee, the people's court shall judge to reject the application.

Where a party concerned applies for evidence preservation, which the people's court holds that no guarantee is needed after investigation, the applicant may not provide guarantee for the preservation.

Article 543 Where an applicant requests the people's court to acknowledge and execute a judgment or ruling made by a foreign court which has taken legal effect, the said applicant shall submit the application and attach the original of the judgment or ruling made by the foreign court or the copy which has been notarized to be the same as the original as well as their Chinese translations. Where the judgment or ruling made by the foreign court is a default judgment or ruling, the applicant shall also provide the proof documents that the foreign court has made legal summon, except that the judgment or ruling bears explicit explanation.

Where the international agreement made or participated in by the People's Republic of China specifies the documents to be submitted, the documents shall be submitted as specified.

Article 544 Where a party concerned requests an intermediate people's court of the People's Republic of China with jurisdiction to acknowledge and execute a judgment or ruling made by a foreign court which have taken legal effect, if the country of origin of the foreign court and the People's Republic of China have neither reached or jointly participated in an international agreement nor established reciprocal relationships, the intermediate people's court shall reject such request, except for the request made by the applicant to the people's court for acknowledgment of a divorce judgment made by the foreign court which has taken legal effect.

Where the request for acknowledgment and execution is judged to be rejected, the party concerned can institute a lawsuit to the people's court.

Article 545 Where a party concerned requests a people's court to acknowledge and execute an arbitration award made by a temporary arbitration tribunal within the territory of the People's Republic of China, the people's court shall process the request as specified in Article 283 of the Civil Procedure Law.

Article 546 Where a judgment or ruling made by a foreign court or an arbitration award which has taken legal effect needs to be executed by a people's court of the People's Republic of China, the party concerned shall request the people's court to acknowledge such judgment, ruling or arbitration award. The people's court shall judge to acknowledge through investigation and then execute such judgment, ruling or arbitration award according to the provisions of Part III of the Civil Procedure Law.

Where the party concerned requests only for acknowledgment but not for execution, the people's court shall only make a judgment over whether an acknowledgment of investigations is needed.

Article 547 During the period when the party concerned requests for acknowledgment and execution of the judgment or ruling made by a foreign court or an arbitration award made by a foreign arbitration authority, Article 239 of the Civil Procedure Law shall be applicable.

Where the party concerned only requests for acknowledgment but not for execution, the period for requesting execution shall be recounted from the date when the acknowledgment made by the people's court takes effect.

Article 548 As for cases involving acknowledgment and execution of the judgment or ruling made by a foreign court or an arbitration award made by a foreign arbitration authority, the people's court shall set up a collegiate bench for trial.

The people's court shall deliver the application to the respondent. The respondent can state opinions.

The judgment made by the people's court shall immediately take effect upon delivery.

Article 549 Where a court of a country which has neither reached any judicial assistance treaty nor established reciprocal relationships with the People's Republic of China directly requests a people's court for judicial assistance rather than through diplomatic channels, the people's court shall reject the request and give the reasons.

Article 550 Where a party concerned requests a people's court to prove the legal effect of the judgment or ruling for the use of such judgment or ruling made by the people's court outside the territory of the People's Republic of China, or a foreign court requests a people's court to prove the legal effect of the judgment or ruling, the people's court making such judgment or ruling shall produce proof documents in its own name.

Article 551 Where a people's court tries a civil lawsuit involving Hong Kong SAR, Macao SAR and Taiwan China, the special provisions of the procedure for civil proceedings involving foreigners or foreign affairs shall be referred to and applicable.

 

XXIII. Supplementary Provisions

 

Article 552 The Several Opinions on the Application of the Civil Procedure Law of the People's Republic of China issued by the Supreme People's Court on July 14, 1992 shall be abolished when this Interpretation is issued and implemented. The judicial interpretation previously issued by the Supreme People's Court, if not consistent with this Interpretation, shall not be applicable any more.

 

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