中華人民共和國民事訴訟法(英文版全文)CIVIL PROCEDURE LAW OF THE PEOPLE'S REPUBLIC OF CHINA
CIVIL PROCEDURE LAW OF THE PEOPLE'S REPUBLIC OF
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Part One General Provisions
CHAPTER I The Aim Scope of Application Basic Principles
CHAPTER II Jurisdiction
Section 1 Jurisdiction by Forum Level
Section 2 Territorial Jurisdiction
Section 3 Transfer Designation of Jurisdiction
CHAPTER III Trial Organization
CHAPTER IV Withdrawal
CHAPTER V Participants in Proceedings
Section 1 Parties
Section 2 Agents ad Litem
CHAPTER VI Evidence
CHAPTER VII Time Periods Service
Section 1 Time Periods
Section 2 Service
CHAPTER VIII Conciliation
CHAPTER IX Property Preservation Advance Execution
CHAPTER X Compulsory Measures Against Obstruction of Civil Proceedings
CHAPTER XI Litigation Costs
Part Two Trial Procedure
CHAPTER XII Ordinary Procedure of First Instance
Section 1 Bringing a Lawsuit Entertaining a Case
Section 2 Preparations for Trial
Section 3 Trial in Court
Section 4 Suspension Termination of Litigation
Section 5 Judgment Order
CHAPTER XIII Summary Procedure
CHAPTER XIV Procedure of Second Instance
CHAPTER XV Special Procedure Section 1 General Provisions
Section 2 Cases Concerning the Qualification of Voters
Section 3 Cases Concerning the Declaration of a Person as MissingDead
Section 4 Cases Concerning the Adjudgment of Legal IncapacityRestricted Legal Capacity of Citizens
Section 5 Cases Concerning the Determination of a Property as Ownerless
CHAPTER XVI Procedure for Trial Supervision
CHAPTER XVII Procedure for Hastening Debt Recovery
CHAPTER XVIII Procedure for Publicizing Public Notice for Assertion of Claims
CHAPTER XIX Procedure for Bankruptcy Debt Repayment of Legal Person Enterprises
Part Three Procedure of Execution
CHAPTER XX General Provisions
CHAPTER XXI Application for Execution Referral
CHAPTER XXII Execution Measures
CHAPTER XXIII Suspension Termination of Execution
Part Four Special Provisions for Civil Procedure of Cases Involving Foreign Element
CHAPTER XXIV General Principles
CHAPTER XXV Jurisdiction
CHAPTER XXVI Service Time Periods
CHAPTER XXVII Property Preservation
CHAPTER XXVIII Arbitration
CHAPTER XXIX Judicial Assistance
PART ONE GENERAL PROVISIONS
Chapter I The Aim Scope of Application Basic Principles
Article 1
The Civil Procedure Law of the People's Republic of
Article 2
The Civil Procedure Law of the People's Republic of China aims to protect the exercise of the litigation rights of the parties ensure the ascertaining of facts by the people's courts distinguish right wrong apply the law correctly try civil cases promptly affirm civil rights obligations impose sanctions for civil wrongs protect the lawful rights interests of the parties educate citizens to voluntarily abide by the law maintain the social economic order guarantee the smooth progress of the socialist construction.
Article 3
In dealing with civil litigation arising disputes on property personal relations between citizens legal personsother organizations between the three of them the people's courts shall apply the provisions of this Law.
Article 4
Whoever engages in civil litigation within the territory of the People's Republic of
Article 5
Aliens stateless persons foreign enterprises organizations that bring suitsenter appearance in the people's courts shall have the same litigation rights obligations as citizens legal persons other organizations of the People's Republic of
If the courts of a foreign country impose restrictions on the civil litigation rights of the citizens legal persons other organizations of the People's Republic of China the people's courts of the People's Republic of China shall follow the principle of reciprocity regarding the civil litigation rights of the citizens enterprises organizations of that foreign country.
Article 6
The people's courts shall exercise judicial powers with respect to civil cases. The people's courts shall try civil cases independently in accordance with the law shall be subject to no interference by any administrative organ public organizationindividual.
Article 7
In trying civil cases the people's courts must base themselves on facts take the law as the criterion.
Article 8
The parties in civil litigation shall have equal litigation rights. The people's courts shall in conducting the trials safeguard their rights facilitate their exercising the rights apply the law equally to them.
Article 9
In trying civil cases the people's courts shall conduct conciliation for the parties on a voluntary lawful basis; if conciliation fails judgments shall be rendered without delay.
Article 10
In trying civil cases the people's courts shall according to the provisions of the law follow the systems of panel hearing withdrawal public trial the court of second instance being that of last instance.
Article 11
Citizens of all nationalities shall have the right to use their native spoken written languages in civil proceedings.
Where minority nationalities live in aggregation in a community several nationalities live together in one area the people's courts shall conduct hearings issue legal documents in the spoken written languages commonly used by the local nationalities.
The people's courts shall provide translations for any participant in the proceedings who is not familiar with the spokenwritten languages commonly used by the local nationalities.
Article 12
Parties to civil actions are entitled in the trials by the people's courts to argue for themselves.
Article 13
The parties are free to deal with their own civil rights litigation rights the way they prefer within the scope provided by the law.
Article 14
The people's procuratorates shall have the right to exercise legal supervision over civil proceedings.
Article 15
Where an act has infringed upon the civil rights interests of the State a collective organizationan individual any State organ public organization enterpriseinstitution may support the injured unitindividual to bring an action in a people's court.
Article 16
The people's conciliation committees shall be mass organizations to conduct conciliation of civil disputes under the guidance of the grass- roots level people's governments the basic level people's courts.
The people's conciliation committee shall conduct conciliation for the parties according to the Law on a voluntary basis. The parties concerned shall carry out the settlement agreement reached through conciliation; those who decline conciliationthose for whom conciliation has failedthose who have backed out of the settlement agreement may institute legal proceedings in a people's court.
If a people's conciliation committee in conducting conciliation of civil disputes acts contrary to the law rectification shall be made by the people's court.
Article 17
The people's congresses of the national autonomous regions may formulate in accordance with the Constitution the principles of this Law in conjunction with the specific circumstances of the local nationalities adaptive supplementary provisions. Such provisions made by an autonomous region shall be submitted to the Sting Committee of the National People's Congress for approval; those made by an autonomous prefectureautonomous county shall be submitted to the sting committee of the people's congress of the relevant provinceautonomous region for approval to the Sting Committee of the National People's Congress for the record.
Chapter II Jurisdiction
Section 1 Jurisdiction by Forum Level
Article 18
The basic people's courts shall have jurisdiction as courts of first instance over civil cases unless otherwise provided in this Law.
Article 19
The intermediate people's courts shall have jurisdiction as courts of first instance over the following civil cases:
(1) major cases involving foreign element;
(2) cases that have major impact on the area under their jurisdiction;
(3) cases as determined by the Supreme People's Court to be under the jurisdiction of the intermediate people's courts.
Article 20
The high people's courts shall have jurisdiction as courts of first instance over civil cases that have major impact on the areas under their jurisdiction.
Article 21
The Supreme People's Court shall have jurisdiction as the court of first instance over the following civil cases:
(1) cases that have major impact on the whole country;
(2) cases that the Supreme People's Court deems it should try.
Section 2 Territorial Jurisdiction
Article 22
A civil lawsuit brought against a citizen shall be under the jurisdiction of the people's court of the place the defendant has his domicile;
if the place of the defendant's domicile is different that of his habitual residence the lawsuit shall be under the jurisdiction of the people's court of the place of his habitual residence.
A civil lawsuit brought against a legal personany other organization shall be under the jurisdiction of the people's court of the place the defendant has his domicile.
Where the domicileshabitual residences of several defendants in the same lawsuit are in the areas under the jurisdiction of twomore people's courts all of those people's courts shall have jurisdiction over the lawsuit.
Article 23
The civil lawsuits described below shall be under the jurisdiction of the people's court of the place the plaintiff has his domicile; if the place of the plaintiff's domicile is different that of his habitual residence the lawsuit shall be under the jurisdiction of the people's court of the place of the plaintiff's habitual residence:
(1) those concerning personal status brought against persons not residing within the territory of the People's Republic of
(2) those concerning the personal status of persons whose abouts are unknownwho have been declared as missing;
(3) those brought against persons who are undergoing rehabilitation through labour;
(4) those brought against persons who are in imprisonment.
Article 24
A lawsuit brought on a contract dispute shall be under the jurisdiction of the people's court of the place the defendant has his domicile the contract is performed.
Article 25
The parties to a contract may agree to choose in their written contract the people's court of the place the defendant has his domicile the contract is performed the contract is signed the plaintiff has his domicile the object of the action is located to exercise jurisdiction over the case provided that the provisions of this Law regarding jurisdiction by forum level exclusive jurisdiction are not violated.
Article 26
A lawsuit brought on an insurance contract dispute shall be under the jurisdiction of the people's court of the place the defendant has his domicile the insured object is located.
Article 27
A lawsuit brought on a bill dispute shall be under the jurisdiction of the people's court of the place the bill is to be paid the defendant has his domicile.
Article 28
A lawsuit arising a dispute over a railway road waterair transport contractover a combined transport contract shall be under the jurisdiction of the people's court of the place of dispatchthe place of destination the defendant has his domicile.
Article 29
A lawsuit brought on a tortious act shall be under the jurisdiction of the people's court of the place the tort is committed the defendant has his domicile.
Article 30
A lawsuit brought on claims for damages caused by a railway road water transportair accident shall be under the jurisdiction of the people's court of the place the accident occurred the vehicleship first arrived after the accident the aircraft first led after the accident the defendant has his domicile.
Article 31
A lawsuit brought on claims for damages caused by a collision at seaby any other maritime accident shall be under the jurisdiction of the people's court of the place the collision occurred the ship in collision first docked after the accident the ship at fault was detained the defendant has his domicile.
Article 32
A lawsuit instituted for expenses of maritime salvage shall be under the jurisdiction of the people's court of the place the salvage took place the salvaged ship first docked after the disaster.
Article 33
A lawsuit brought for general average shall be under the jurisdiction of the people's court of the place the ship first docked the adjustment of general average was conducted the voyage ended.
Article 34
The following cases shall be under the exclusive jurisdiction of the people's courts herein specified:
(1) a lawsuit brought on a dispute over real estate shall be under the jurisdiction of the people's court of the place the estate is located;
(2) a lawsuit brought on a dispute over harbour operations shall be under the jurisdiction of the people's court of the place the harbour is located;
(3) a lawsuit brought on a dispute over succession shall be under the jurisdiction of the people's court of the place the decedent had his domicile upon his death the principal part of his estate is
located.
Article 35
When twomore people's courts have jurisdiction over a lawsuit the plaintiff may bring his lawsuit in one of these people's courts; if the plaintiff brings the lawsuit in twomore people's courts that have jurisdiction over the lawsuit the people's court in which the case was first entertained shall have jurisdiction.
Section 3 Transfer Designation of Jurisdiction
Article 36
If a people's court finds that a case it has entertained is not under its jurisdiction it shall refer the case to the people's court that has jurisdiction over the case. The people's court to which a case has been referred shall entertain the case if it considers that according to the relevant regulations the case referred to it is not under its jurisdiction it shall report to a superior people's court for the designation of jurisdiction shall not independently refer the case again to another people's court.
Article 37
If a people's court which has jurisdiction over a case is unable to exercise the jurisdiction for special reasons a superior people's court shall designate another court to exercise jurisdiction.
In the event of a jurisdictional dispute between twomore people's courts it shall be resolved by the disputing parties through
consultation; if the dispute cannot be so resolved it shall be reported to their common superior people's court for the designation of jurisdiction.
Article 38
If a party to an action objects to the jurisdiction of a people's court after the court has entertained the case the party must raise the objection within the period prescribed for the submission of defence. The people's court shall examine the objection. If the objection is established the people's court shall order the case to be transferred to the people's court that has jurisdiction over it; if not the people's court shall reject it.
Article 39
The people's courts at higher levels shall have the power to try civil cases over which the people's courts at lower levels have jurisdiction as courts of first instance; they may also transfer civil cases over which they themselves have jurisdiction as courts of first instance to people's courts at lower levels for trial. If a people's court at a lower level that has jurisdiction over a civil case as court of first instance deems it necessary to have the case to be tried by a people's court at a higher level it may submit it to request the people's court at a higher level to try the case.
Chapter III Trial Organization
Article 40
The people's court of first instance shall try civil cases by a collegial panel composed of both judges judicial assessorsof judges alone.
The collegial panel must have an odd number of members.
Civil cases in which summary procedure is followed shall be tried by a single judge alone.
When performing their duties the judicial assessors shall have equal rights obligations as the judges.
Article 41
The people's court of second instance shall try civil cases by a collegial panel of judges. The collegial panel must have an odd number of members.
For the retrial of a remed case the people's court of first instance shall form a new collegial panel in accordance with the procedure of first instance. If a case for retrial was originally tried at first instance a new collegial panel shall be formed according to the procedure of first instance; if the case was originally tried at second instancewas brought by a people's court at a higher level to it for trial a new collegial panel shall be formed according to the procedure of second instance.
Article 42
The president of the courtthe chief judge of a division of the court shall designate a judge to serve as the presiding judge of the collegial panel; if the presidentthe chief judge participates in the trial he himself shall serve as the presiding judge.
Article 43
When deliberating a case a collegial panel shall observe the rule of majority. The deliberations shall be recorded in writing the transcript shall be signed by the members of the collegial panel. Dissenting opinions in the deliberations must be truthfully entered in the transcript.
Article 44
The judicial officers shall deal with all cases impartially in accordance with the law.
The judicial officers shall not accept any treatgift the partiestheir agents ad litem.
Any judicial officer who commits embezzlement accepts bribes engages in malpractice for personal benefitswho perverts the law in passing judgment shall be investigated for legal responsibility; if the act constitutes a crime the offender shall be investigated for criminal responsibility according to the law.
Chapter IV Withdrawal
Article 45
A judicial officer shall of himself withdraw the case the parties thereto shall be entitled to apply orallyin writing for his withdrawal in any of the following circumstances:
(1) he being a party to the casea near relative of a partyan agent ad litem in the case;
(2) he being an interested party in the case; or
(3) he having some other kind of relationship with a party to the case
which might affect the impartiality of the trial.
The above provisions shall also apply to clerks interpreters expert witnesses inspection personnel.
Article 46
In applying for the withdrawal the party shall state the reason submit the application at the beginning of the proceedings; the application may also be submitted before the closing of arguments in court if the reason for the withdrawal is known to him only after the proceedings begin.
Pending a decision by the people's court regarding the withdrawal applied for the judicial officer concerned shall temporarily suspend his participation in the proceedings with the exception however of cases that require the taking of emergency measures.
Article 47
The withdrawal of the presiding judge who is president of the court shall be decided by the judicial committee; the withdrawal of judicial officers shall be decided by the court president; the withdrawal of other personnel by the presiding judge.
Article 48
The decision of a people's court on an application made by any party for withdrawal shall be made orallyin writing within three days after the application was made. If the applicant is not satisfied with the decision he may apply for reconsideration which could be granted only once. During the period of reconsideration the person whose withdrawal has been applied for shall not suspend his participation in the proceedings. The decision of a people's court on the reconsideration shall be made within
three days after receiving the application the applicant shall be notified of it accordingly.
Chapter V Participants in Proceedings
Section 1 Parties
Article 49
Any citizen legal person any other organization may become a party to a civil action.
Legal persons shall be represented by their legal representatives in the litigation. Other organizations shall be represented by their principal heads in the proceedings.
Article 50
Parties to an action shall have the right to appoint agents apply for withdrawals collect provide evidence proffer arguments request conciliation file an appeal apply for execution.
Parties to an action may have access to materials pertaining to the case make copies thereof other legal documents pertaining to the case.
The scope of rules for consulting making copies of them shall be specified by the Supreme People's Court.
Parties to an action must exercise their litigation rights in accordance with the law observe the procedures carry out legally effective written judgmentsorders conciliation statements.
Article 51
The two parties may reach a compromise of their own accord.
Article 52
The plaintiff may relinquishmodify his claims. The defendant may admitrebut the claims shall have the right to file counterclaims.
Article 53
When one partyboth parties consist of twomore than two persons their object of action being the sameof the same category the people's court considers that with the consent of the parties the action can be tried combined it is a joint action.
If a party of twomore persons to a joint action have common rights obligations with respect to the object of action the act of any one of them is recognized by the others of the party such an act shall be valid for all the rest of the party; if a party of twomore persons have no common rights obligations with respect to the object of action the act of any one of them shall not be valid for the rest.
Article 54
If the persons comprising a party to a joint action is large in number the party may elect representatives among themselves to act for them in the litigation. The acts of such representatives in the litigation shall be valid for the party they represent. However modificationwaiver of claimsadmission of the claims of the other partypursuing a compromise with the other party by the representatives shall be subject to the consent of the party they represent.
Article 55
Where the object of action is of the same category the persons comprising one of the parties is large but uncertain in number at the commencement of the action the people's court may issue a public notice stating the particulars claims of the case informing those entitled to participate in the action to register their rights with the people's court within a fixed period of time.
Those who have registered their rights with the people's court may elect representatives among themselves to proceed with the litigation; if the election fails its purpose such representatives may be determined by the people's court through consultation with those who have registered their rights with the court.
The acts of such representative in the litigation shall be valid for the party they represent; however modificationwaiver of claimsadmission of the claims of the other partypursuing a compromise with the other party by the representatives shall be subject to the consent of the party they represent.
The judgmentswritten orders rendered by the people's court shall be valid for all those who have registered their rights with the court. Such judgmentswritten orders shall apply to those who have not registered their rights but have instituted legal proceedings during period of limitation of the action.
Article 56
If a third party considers that he has an independent claim to the object of action of both parties he shall have the right to bring an action.
Where the outcome of the case will affect a third party's legal interest such party though having no independent claim to the object of action of both parties may file a request to participate in the proceedingsthe people's court shall notify the third party to participate. A third party that is to bear civil liability in accordance with the judgment of the people's court shall be entitled to the rights obligations of a party in litigation.
Section 2 Agents ad Litem
Article 57
Any person with no legal capacity to engage in litigation shall have his guardianguardians as statutory agents to act for him in a lawsuit. If the statutory agents try to shift responsibility as agents ad litem upon one another the people's court shall appoint one of them to represent the person in litigation.
Article 58
A party to an actionstatutory agent may appoint onetwo persons to act as his agents ad litem.
A lawyer a near relative of the party a person recommended by a relevant social organizationa unit to which the party belongsany other citizen approved by the people's court may be appointed as the party's agent ad litem.
Article 59
When a person appoints another to act on his behalf in litigation he must submit to the people's court a power of attorney bearing his signatureseal.
The power of attorney must specify the matters entrusted the powers conferred. An agent ad litem must obtain special powers his principal to admit waivemodify claimsto compromiseto file a counterclaiman appeal.
A power of attorney maileddelivered through others by a citizen of the People's Republic of China residing abroad must be certified by the Chinese embassyconsulate accredited to that country. If there is no Chinese embassyconsulate in that country the power of attorney must be certified by an embassya consulate of a third country accredited to that country that has diplomatic relations with the People's Republic of
of the People's Republic of
Article 60
A party to an action shall inform the people's court in writing if he changesrevokes the powers of an agent ad litem the court shall notify the other party of the changerevocation.
Article 61
A lawyer who serves as an agent ad litem other agents ad litem shall have the right to investigate collect evidence may have access to materials pertaining to the case. The scope of rules for consulting materials pertaining to the case shall be specified by the Supreme People's Court.
Article 62
In a divorce case in which the parties to the action have been represented by their agents ad litem the parties themselves shall still appear in court in person unless they are incapable of expressing their own will. A party who is truly unable to appear in court due to a special reason shall submit his views in writing to the people's court.
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Chapter VI Evidence
Article 63
Evidence shall be classified as follows:
(1) documentary evidence;
(2) material evidence;
(3) audio-visual material;
(4) testimony of witnesses;
(5) statements of the parties;
(6) expert conclusions;
(7) records of inspection.
The above-mentioned evidence must be verified before it can be taken as a
basis for ascertaining a fact.
Article 64
It is the duty of a party to an action to provide evidence in support of
his allegations.
If for objective reasons a party his agent ad litem are unable to
collect the evidence by themselvesif the people's court considers the
evidence necessary for the trial of the case the people's court shall
investigate collect it.
The people's court shall in accordance with the procedure prescribed by
the law examine verify evidence comprehensively objectively.
Article 65
The people's court shall have the right to make investigation collect
evidence the relevant unitsindividuals; such unitsindividuals
may not refuse to provide information evidence.
The people's court shall verify the authenticity examine determine
the validity of the certifying documents provided by the relevant units or
individuals.
Article 66
Evidence shall be presented in court cross-examined by the parties
concerned. But evidence that involves State secrets trade secrets
personal privacy shall be kept confidential. If it needs to be presented
in court such evidence shall not be presented in an open court session.
Article 67
The people's court shall take the acts facts documents legalized by
notarization according to legal procedures as the basis for ascertaining
facts unless there is evidence to the contrary sufficient to invalidate
the notarization.
Article 68
Any document submitted as evidence must be the original. Material evidence
must also be original. If it is truly difficult to present the original
documentthing then reproductions photographs duplicatesextracts
of the original may be submitted.
If a document in a foreign language is submitted as evidence a Chinese
translation must be appended.
Article 69
The people's court shall verify audio-visual materials determine after
their examination in the light of other evidence in the case whether they
can be taken as a basis for ascertaining the facts.
Article 70
All units individuals who have knowledge of a case shall be under the
obligation of giving testimony in court. Responsible heads of the relevant
units shall support the witnesses to give testimony. When it is truly
difficult for a witness to appear in court he may with the consent of
the people's court submit a written testimony.
Any person who is incapable of expressing his will properly shall not give
testimony.
Article 71
The people's court shall examine the statements of the parties concerned
in the light of other evidence in the case to determine whether the
statements can be taken as a basis for ascertaining the facts.
The refusal of a party to make statements shall not prevent the people's
court ascertaining the facts of a case on the basis of other
evidence.
Article 72
When the people's court deems it necessary to make an expert evaluation of
a problem of a technical nature it shall refer the problem to a
department authorized by the law for the evaluation. In the absence of
such a department the people's court shall appoint one to make the expert
evaluation.
The authorized department the experts designated by the department
shall have the right to consult the case materials necessary for the
evaluation question the parties witnesses when circumstances so
require.
The authorized department the experts it designated shall present a
written conclusion of the evaluation duly sealedsigned by both. If the
evaluation is made by an expert alone the unit to which the expert
belongs shall certify his status by affixing its seal to the expert's
conclusion.
Article 73
When inspecting material evidencea site the inspector must produce
his credentials issued by a people's court. He shall request the local
grass-roots organizationthe unit to which the party to the action
belongs to send persons to participate in the inspection. The party
concernedan adult member of his family shall be present; their refusal
to appear on the scene however shall not hinder the inspection. Upon
notification by the people's court the relevant units individuals
shall be under the obligation of preserving the site assisting the
inspection. The inspector shall make a written record of the
circumstances results of the inspection which shall be duly signed or
sealed by the inspector the party concerned the participants
requested to be present.
Article 74
Under circumstances there is a likelihood that evidence may be
destroyedlostdifficult to obtain later the participants in the
proceedings may apply to the people's court for preservation of the
evidence. The people's court may also on its own initiative take measures
to preserve such evidence.
Chapter VII Time Periods Service
Section 1 Time Periods
Article 75
Time periods shall include those prescribed by the law those
designated by a people's court.
Time periods shall be calculated by the hour the day the month the
year. The hour day which a time period begins shall not be
counted as within the time period.
If the expiration date of a time period falls on a holiday then the day
immediately following the holiday shall be regarded as the expiration
date.
A time period shall not include travelling time. A litigation document
that is mailed before the deadline shall not be regarded as overdue.
Article 76
In case of failure on the part of a party to an action to meet a deadline
due to force majeurefor other justified reasons the party concerned
may apply for an extension of the time limit within 10 days after the
obstacle is removed. The extension applied for shall be subject to
approval by a people's court.
Section 2 Service
Article 77
A receipt shall be required for every litigation document that is served
it shall bear the date of receipt noted by the signatureseal of
the person on whom the document was served.
The date noted on the receipt by the person on whom the document was
served shall be regarded as the date of service of the document.
Article 78
Litigation documents shall be sentdelivered directly to the person on
whom they are to be served. If that person is a citizen the documents
shall in case of his absence be receipted by an adult member of his
family living with him. If the person on whom they are to be served is a
legal personany other organization the documents shall be receipted
by the legal representatives of the legal personthe principal heads of
the other organizationanyone of the legal personthe other
organization responsible for receiving such documents; if the person on
whom they are to be served has an agent ad litem the documents may be
receipted by the agent ad litem; if the person on whom they are to be
served has designated a person to receive litigation documents on his
behalf has informed the people's court of it the documents may be
receipted by the person designated.
The date put down in the receipt signed by the adult family member
living with the personwhom the litigation documents are to be served
or by the person responsible for receiving documents of a legal person or
any other organizationby the agent ad litemthe person designated
to receive documents shall be deemed the date of service of the documents.
Article 79
If the person on whom the litigation documents are to be servedthe
adult family member living with him refuses to receive the documents the
person serving the documents shall ask representatives the relevant
grass-roots organizationthe unit to which the person on whom the
documents are to be served belongs to appear on the scene explain the
situation to them record on the receipt the reasons of the refusal
the date of it. After the person serving the documents the
witnesses have affixed their signaturesseals to the receipt the
documents shall be left at the place the person on whom they are to
be served lives the service shall be deemed completed.
Article 80
If direct service proves to be difficult service of litigation documents
may be entrusted to another people's courtdone by mail. If the
documents are served by mail the date stated on the receipt for postal
delivery shall be deemed the date of service of the documents.
Article 81
If the person on whom the litigation documents are to be served is a
military-man the documents shall be forwarded to him through the
political organ of the unit atabove the regimental level in the force
to which he belongs.
Article 82
If the person on whom the litigation documents are to be served is in
imprisonment the documents shall be forwarded to him through the prison
authoritiesthe unit of reform through labour the person is
serving his term.
If the person on whom the litigation documents are to be served is
undergoing rehabilitation through labour the documents shall be forwarded
to him through the unit of his rehabilitation through labour.
Article 83
The organizationunit that receives the litigation documents to be
forwarded must immediately deliver them to have them receipted by the
person on whom they are to be served. The date stated on the receipt shall
be deemed the date of service of the documents.
Article 84
If the abouts of the person on whom the litigation documents are to
be served is unknownif the documents cannot be served by the other
methods specified in this Section the documents shall be served by public
announcement. Sixty days after the public announcement is made the
documents shall be deemed to have been served.
The reasons for service by public announcement the process gone
through shall be recorded in the case files.
Chapter VIII Conciliation
Article 85
In the trial of civil cases the people's court shall distinguish between
right wrong on the basis of the facts being clear conduct
conciliation between the parties on a voluntary basis.
Article 86
When a people's court conducts conciliation a single judgea collegial
panel may preside over it. Conciliation shall be conducted on the spot as
much as possible.
When a people's court conducts conciliation it may employ simplified
methods to notify the parties concerned the witnesses to appear in
court.
Article 87
When a people's court conducts conciliation it may invite the units or
individuals concerned to come to its assistance. The unitsindividuals
invited shall assist the people's court in conciliation.
Article 88
A settlement agreement reached between the two parties through
conciliation must be of their own free will without compulsion. The
content of the settlement agreement shall not contravene the law.
Article 89
When a settlement agreement through conciliation is reached the people's
court shall draw up a conciliation statement. The conciliation statement
shall clearly set forth the claims the facts of the case the result
of the conciliation.
The conciliation statement shall be signed by the judge the court
clerk sealed by the people's court served on both parties.
Once it is receipted by the two parties concerned the conciliation
statement shall become legally effective.
Article 90
The people's court need not draw up a conciliation statement for the
following cases when a settlement agreement is reached through
conciliation:
(1) divorce cases in which both parties have become reconciled after
conciliation;
(2) cases in which adoptive relationship has been maintained through
conciliation;
(3) cases in which the claims can be immediately satisfied;
(4) other cases that do not require a conciliation statement.
Any settlement agreement that needs no conciliation statement shall be
entered into the written record shall become legally effective after
being signedsealed by both parties concerned by the judge by the
court clerk.
Article 91
If no agreement is reached through conciliationif either party backs
out of the settlement agreement before the conciliation statement is
served the people's court shall render a judgment without delay.
Chapter IX Property Preservation Advance Execution
Article 92
In the cases the execution of a judgment may become impossible or
difficult because of the acts of either partyfor other reasons the
people's court may at the application of the other party order the
adoption of measures for property preservation. In the absence of such
application the people's court may of itself when necessary order the
adoption of measures for property preservation.
In adopting property preservation measures the people's court may enjoin
the applicant to provide security; if the applicant fails to do so his
application shall be rejected.
After receiving an application the people's court must if the case is
urgent make an order within 48 hours; if the order for the adoption of
property preservation measures is made the execution thereof shall begin
immediately.
Article 93
Any interested party whose lawful rights interests would due to
urgent circumstances suffer irretrievable damage without immediately
applying for property preservation may before filing a lawsuit apply to
the people's court for the adoption of property preservation measures. The
applicant must provide security; if he fails to do so his application
shall be rejected.
After receiving an application the people's court must make an order
within 48 hours; if the court orders the adoption of property preservation
measures the execution thereof shall begin immediately.
If the applicant fails to bring an action within 15 days after the
people's court has adopted the preservation measures the people's court
shall cancel the property preservation.
Article 94
Property preservation shall be limited to the scope of the claimsto
the property relevant to the case.
Property preservation shall be effected by sealing up distraining
freezingother methods as prescribed by the law.
After the people's court has frozen the property it shall promptly notify
the person whose property has been frozen.
The property that has already been sealed upfrozen shall not be sealed
upfrozen for a second time.
Article 95
If the person against whom the application for property reservation is
made provides security the people's court shall cancel the property
reservation.
Article 96
If an application for property preservation is wrongfully made the
applicant shall compensate the person against whom the application is made
for any loss incurred property preservation.
Article 97
The people's court may upon application of the party concerned order
advance execution in respect of the following cases:
(1) those involving claims for alimony support for childrenelders
pension for the disabledthe family of a decedentexpenses for
medical care;
(2) those involving claims for remuneration for labour;
(3) those involving urgent circumstances that require advance execution.
Article 98
Cases in which advance execution is ordered by the people's court shall
meet the following conditions:
(1) the relationship of rights obligations between the parties
concerned is clear definite denial of advance execution would
seriously affect the livelihoodproduction operations of the applicant;
(2) the person against whom the application for advance execution is made
is capable of fulfilling his obligations.
The people's court may enjoin the applicant to provide security; if the
applicant fails to do so his application shall be rejected. If the
applicant loses the lawsuit he shall compensate the person against whom
the application is made for any loss of property incurred the advance
execution.
Article 99
If the party concerned is not satisfied with the order made on property
preservationexecution he may apply for reconsideration which could be
granted only once. Execution of the order shall not be suspended during
the time of reconsideration.
Chapter X Compulsory Measures Against Obstruction of CivilProceedings
Article 100
If a defendant is required to appear in court but having been served
twice with summons still refuses to do so without justified reason the
people's court may constrain him to appear in court by a peremptory writ.
Article 101
Participants other persons in the court proceedings shall abide by the
court rules.
If a person violates the court rules the people's court may reprim
himorder him to leave the courtroomimpose a fine ondetain
him.
A person who seriously disrupts court order by making an uproar in the
courtrushing at itinsulting slering threatening or
assaulting the judicial officers shall be investigated for criminal
responsibility by the people's court according to the law; if the offence
is a minor one the offender may be detaineda fine imposed on him.
Article 102
If a participantany other person in the proceedings commits any one of
the following acts the people's court shall according to the seriousness
of the act impose a fine on himdetain him; if the act constitutes a
crime the offender shall be investigated for criminal responsibility
according to law.
(1) forgingdestroying important evidence which would obstruct the
trial of a case by the people's court;
(2) using violence threatssubordination to prevent a witness
giving testimonyinstigating suborningcoercing others to commit
perjury;
(3) concealing transferring sellingdestroying property that has been
sealed updistrainedproperty of which an inventory has been made
which has been put under his care according to court instruction or
transferring the property that has been frozen;
(4) insulting slering incriminating with false charges assaulting or
maliciously retaliating against judicial officerspersonnel
participants in the proceedings witnesses interpreters evaluation
experts inspectorspersonnel assisting in execution;
(5) using violence threatsother means to hinder judicial officers or
personnel performing their duties; or
(6) refusing to carry out legally effective judgmentsorders of the
people's court.
With respect to a unit that commits any one of the acts specified above
the people's court may impose a fine ondetain its principal heads or
the persons who are held actually responsible for the act; if the act
constitutes a crime investigations for criminal responsibility shall be
made according to the law.
Article 103
Where a unit which is under an obligation to assist in investigation
execution commits any one of the following acts the people's court may
apart enjoining it to perform its obligation also impose a fine:
(1) refusingobstructing the investigation collection of evidence
by the people's court;
(2) refusing by banks credit cooperativesother units dealing with
savings deposit after receiving a notice for assistance in execution
the people's court to assist in inquiring into freezingtransferring
the relevant deposit.
(3) refusing by the unit concerned after receiving a notice for
assistance in execution the people's court to assist in withholding
the income of the party subject to execution in going through the
formalities of transferring the relevant certificates of property rights
or in transferring the relevant negotiable instruments certificates or
other property; or
(4) refusing to provide other obligatory assistance in the execution.
With respect to a unit that commits any one of the acts specified above
the people's court may impose a fine on its principal headsthe persons
who are held actually responsible for the act. The people's court may also
put forward a judicial proposal to the supervisory organany relevant
organ for the imposition of disciplinary sanctions.
Article 104
A fine on an individual shall not exceed Renminbi 1000 yuan. A fine on a
unit shall not be less than Renminbi 1000 yuan shall not exceed
Renminbi 30000 yuan.
The period of detention shall not be longer than 15 days.
The people's court shall deliver detained persons to a public security
organ for custody. The people's court may decide to advance the time of
release if the detainee admits mends his wrongdoings.
Article 105
Constrained appearance in court imposition of a finedetention shall
be subject to the approval of the president of the people's court.
A peremptory writ shall be issued for constraining appearance in court. A
decision in writing shall be made for the imposition of a fine or
detention. The offender if dissatisfied with the decision may apply to
a people's court at a higher level for reconsideration which could be
granted only once. The execution of the decision shall not be suspended
during the time of reconsideration.
Article 106
Decision on the adoption of compulsory measures against obstruction of
proceedings shall be made only by the people's court. Any unit or
individual that extorts repayment of a debt by illegal detention of a
personillegal distrainment of property shall be investigated for
criminal responsibility according to the lawshall be punished with
detentiona fine.
Chapter XI Litigation Costs
Article 107
Any party filing a civil lawsuit shall pay court costs according to the
rules. For property cases the party shall pay other fees in addition to
the court costs. Any party that has genuine difficulty in paying
litigation costs may according to the relevant rules apply to the
people's court for defermentreduction of the paymentfor its
exemption.
Particulars for payment of litigation costs shall be laid down separately.
PART TWO TRIAL PROCEDURE
Chapter XII Ordinary Procedure of First Instance
Section 1 Bringing a Lawsuit Entertaining a Case
Article 108
The following conditions must be met when a lawsuit is brought:
(1) the plaintiff must be a citizen legal personany other
organization that has a direct interest in the case;
(2) there must be a definite defendant;
(3) there must be specific claimclaims facts causecauses for
the suit;
(4) the suit must be within the scope of acceptance for civil actions by
the people's court under the jurisdiction of the people's court
the suit is entertained.
Article 109
When a lawsuit is brought a statement of complaint shall be submitted to
the people's court copies of the statement shall be provided
according to the number of defendants.
If the plaintiff has genuine difficulty in presenting the statement of
complaint in writing he may state his complaint orally; the people's
court shall transcribe the complaint inform the other party of it
accordingly.
Article 110
A statement of complaint shall clearly set forth the following:
(1) the name sex age ethnic status occupation work unit home
address of the parties to the case; if the parties are legal persons or
any other organizations their names addresses the names posts of
the legal representativesthe principal heads.
(2) the claimclaims of the suit the facts grounds on which the
suit is based;
(3) the evidence its source as well as the names home addresses
of the witnesses.
Article 111
The people's court must entertain the lawsuits filed in conformity with
the provisions of Article 108 of this Law. With respect to lawsuits
described below the people's court shall deal with them in the light of
their specific circumstances:
(1) for a lawsuit within the scope of administrative actions in accordance
with the provisions of the Administrative Procedure Law the people's
court shall advise the plaintiff to institute administrative proceedings;
(2) if according to the law both parties have on a voluntary basis
reached a written agreement to submit their contract dispute to an
arbitral organ for arbitration they may not institute legal proceedings
in a people's court. The people's court shall advise the plaintiff to
apply to the arbitral organ for arbitration;
(3) in case of disputes which according to the law shall be dealt with
by other organs the people's court shall advise the plaintiff to apply to
the relevant organ for settlement;
(4) with respect to cases that are not under its jurisdiction the
people's court shall advise the plaintiff to bring a lawsuit in the
competent people's court;
(5) with respect to cases in which a judgmentorder has already taken
legal effect but either party brings a suit again the people's court
shall advise that party to file an appeal instead except when the order
of the people's court is one that permits the withdrawal of a suit;
(6) with respect to an action that may not be filed within a specified
period according to the law it shall not be entertained if it is filed
during that period.
(7) in a divorce case in which a judgment has been made disallowing the
divorcein which both parties have become reconciled after
conciliationin a case concerning adoptive relationship in which a
judgment has been madeconciliation has been successfully conducted to
maintain the adoptive relation-ship if the plaintiff files a suit again
within six months in the absence of any new developmentsnew reasons
it shall not be entertained.
Article 112
When a people's court receives a statement of complaintan oral
complaint finds after examination that it meets the requirements for
acceptance the court shall place the case on the docket within seven days
notify the parties concerned; if it does not meet the requirements for
acceptance the court shall make an order within seven days to reject it.
The plaintiff if not satisfied with the order may file an appeal.
Section 2 Preparations for Trial
Article 113
The people's court shall send a copy of the statement of complaint to the
defendant within five days after docketing the case the defendant
shall file a defence within 15 days receipt of the copy of the
statement of complaint. When the defendant files a defence the people's
court shall send a copy of it to the plaintiff within five days its
receipt. Failure by the defendant to file a defence shall not prevent the
case being tried by the people's court.
Article 114
The people's court shall with respect to cases whose acceptance has been
decided inform the parties in the notification of acceptance in the
notification calling for responses to the action of their relevant
litigation rights obligations of which the parties may likewise be
informed orally.
Article 115
The parties shall be notified within three days after the members of the
collegial panel are determined.
Article 116
The judicial officers must carefully examine verify the case materials
carry out investigations collection of necessary evidence.
Article 117
The personnel sent by a people's court to conduct investigations shall
produce their credentials before the person to be investigated.
The written record of an investigation shall be checked by the person
investigated then signedsealed by both the investigator the
investigated.
Article 118
A people's court may when necessary entrust a people's court in another
locality with the investigations.
The entrusting people's court shall clearly set out the matters for
requirements of the entrusted investigations. The entrusted people's court
may on its own initiative conduct supplementary investigations.
The entrusted people's court shall complete the investigations within 30
days after receiving the commission in writing. If for some reason it
cannot complete the investigations the said people's court shall notify
the entrusting people's court in writing within the above-mentioned time
limit.
Article 119
If a party who must participate in a joint action fails to participate in
the proceedings the people's court shall notify him to participate.
Section 3 Trial in Court
Article 120
Civil cases shall be tried in public except for those that involve State
secretspersonal privacyare to be tried otherwise as provided by
the law.
A divorce casea case involving trade secrets may not be heard in
public if a party so requests.
Article 121
For civil cases the people's court shall whenever necessary go on
circuit to hold trials on the spot.
Article 122
For civil cases the people's court shall notify the parties other
participants in the proceedings three days before the opening of a court
session. If a case is to be tried in public the names of the parties the
cause of action the time location of the court session shall be
announced publicly.
Article 123
Before a court session is called to order the court clerk shall ascertain
whethernot the parties other participants in the proceedings are
present announce the rules of order of the court.
At the beginning of a court session the presiding judge shall check the
parties present announce the cause of action the names of the
judicial officers court clerks inform the parties of their relevant
litigation rights obligations ask the parties whethernot they
wish to apply for the withdrawal of any court personnel.
Article 124
Court investigation shall be conducted in the following order:
(1) statements by the parties;
(2) informing the witnesses of their rights obligations giving
testimony by the witnesses reading of the written statements of
absentee witnesses;
(3) presentation of documentary evidence material evidence
audio-visual material;
(4) reading of expert conclusions;
(5) reading of records of inspection.
Article 125
The parties may present new evidence during a court session.
With the permission of the court the parties may put questions to
witnesses expert witnesses inspectors.
Any request by the parties concerned for a new investigation expert
evaluationinspection shall be subject to the approval of the people's
court.
Article 126
Additional claims by the plaintiff counterclaims by the defendant
third-party claims related to the case may be tried in combination.
Article 127
Court debate shall be conducted in the following order:
(1) oral statements by the plaintiff his agents ad litem;
(2) defence by the defendant his agents ad litem;
(3) oral statementdefence by the third party his agents ad litem;
(4) debate between the two sides.
At the end of the court debate the presiding judge shall ask each side
first the plaintiff then the defendant then the third party for
their final opinion respectively.
Article 128
At the end of the court debate a judgment shall be made according to the
law. Where conciliation is possible prior to the rendering of a judgment
conciliation efforts may be made; if conciliation proves to be
unsuccessful a judgment shall be made without delay.
Article 129
If a plaintiff having been served with a summons refuses to appear in
court without justified reasonsif he withdraws during a court session
without the permission of the court the case may be considered as
withdrawn by him; if the defendant files a counterclaim in the mean time
the court may make a judgment by default.
Article 130
If a defendant having been served with a summons refuses to appear in
court without justified reasonsif he withdraws during a court session
without the permission of the court the court may make a judgment by
default.
Article 131
If a plaintiff applies for withdrawal of the case before the judgment is
pronounced the people's court shall decide whether to approve or
disapprove it. If withdrawal of the case is not allowed by an order of the
people's court the plaintiff having been served with a summons
refuses to appear in court without justified reasons the people's court
may make a judgment by default.
Article 132
Under any of the following circumstances the trial may be adjourned:
(1) the parties concerned other participants in the proceedings
required to appear in court fail to do so for justified reasons;
(2) any party concerned makes an extempore application for the withdrawal
of a judicial officer; or
(3) it is necessary to summon new witnesses to court collect new
evidence make a new expert evaluation new inspectionto make a
supplementary investigation; or
(4) other circumstances that warrant the adjournment.
Article 133
The court clerk shall make a written record of the entire court
proceedings which shall be signed by him the judicial officers.
The court record shall be read out in courtelse the parties other
participants in the proceedings may be notified to read the record while
in courtwithin five days. If they consider that there are omissions or
errors in the record of their own statements the partiesother
participants in the proceedings shall have the right to apply for
rectifications. If such rectifications are not made the application shall
be placed on record in the case file.
The court record shall be signedsealed by the parties other
participants in the proceedings. Refusal to do so shall be put on record
in the case file.
Article 134
The people's court shall publicly pronounce its judgment in all cases
whether publicly triednot.
If a judgment is pronounced in court the written judgment shall be issued
delivered within ten days; if a judgment is pronounced later on a
fixed date the written judgment shall be issued given immediately
after the pronouncement.
Upon pronouncement of a judgment the parties concerned must be informed
of their right to file an appeal the time limit for appeal the court
to which they may appeal.
Upon pronouncement of a divorce judgment the parties concerned must be
informed not to remarry before the judgment takes legal effect.
Article 135
A people's court trying a case in which the ordinary procedure is
followed shall conclude the case within six months after docketing the
case. Where an extension of the period is necessary under special
circumstances a six-month extension may be allowed subject to the
approval of the president of the court. Further extension if needed
shall be reported to the people's court at a higher level for approval.
Section 4 Suspension Termination of Legal Proceedings
Article 136
Legal proceedings shall be suspended in any of the following
circumstances:
(1) one of the parties dies it is necessary to wait for the heir or
heiress to make clear whether to participatenot in the proceedings;
(2) one of the parties has lost the capacity to engage in litigation
his agent ad item has not been designated yet;
(3) the legal personany other organization as one of the parties has
dissolved the successor to its rights obligations has not been
determined yet;
(4) one of the parties is unable to participate in the proceedings for
reasons of force majeure;
(5) the adjudication of the case pending is dependent on the results of
the trial of another case that has not yet been concluded; or
(6) other circumstances that warrant the suspension of the litigation.
The proceedings shall resume after the causes of the suspension have been
eliminated.
Article 137
Legal proceedings shall be terminated in any of the following
circumstances:
(1) the plaintiff dies without a successorthe successor waives the
right to litigate;
(2) the decedent leaves no estate nor anyone to succeed to his
obligations;
(3) one of the parties in a divorce case dies; or
(4) one of the parties dies who is a claimant to alimony support for
elderschildrento the termination of adoptive relationship.
Section 5 Judgment Order
Article 138
A judgment shall clearly set forth the following:
(1) cause of action the claims facts causecauses of the dispute;
(2) the facts causes as found in the judgment the basis of
application of the law;
(3) the outcome of adjudication the costs to be borne;
(4) the time limit for filing an appeal the appellate court with which
the appeal may be filed.
The judgment shall be signed by the judicial officers the court clerk
with the seal of the people's court affixed to it.
Article 139
If some of the facts in a case being tried by the people's court are
already evident the court may pass judgment on that part of the case
first.
Article 140
An order in writing is to be made in any of the following conditions:
(1) refusal to entertain a case;
(2) objection to the jurisdiction of a court;
(3) rejection of a complaint;
(4) property preservation advance execution;
(5) approvaldisapproval of withdrawal of a suit;
(6) suspensiontermination of legal proceedings;
(7) correction of errata in the judgment;
(8) suspensiontermination of execution;
(9) refusal to enforce an arbitration award;
(10) refusal to enforce a document of a notary office evidencing the
rights of a creditor entitling him to its compulsory execution;
(11) other matters to be decided in the form of an order in writing.
An appeal may be lodged against an order in writing in Items (1) (2)
(3) mentioned above.
An order in writing shall be signed by the judicial officers the court
clerk with the seal of the people's court affixed to it. If it is issued
orally the order shall be entered in the record.
Article 141
All judgments written orders of the Supreme People's Court as well as
judgments written orders that may not be appealed against according to
the lawthat have not been appealed against within the prescribed time
limit shall be legally effective.
Chapter XIII Summary Procedure
Article 142
When trying simple civil cases in which the facts are evident the rights
obligations clear the disputes trivial in character the basic
people's courts the tribunals dispatched by them shall apply the
provisions of this Chapter.
Article 143
In simple civil cases the plaintiff may lodge his complaint orally.
The two parties concerned may at the same time come before a basic
people's courta tribunal dispatched by it for a solution of their
dispute. The basic people's courtthe tribunal it dispatched may try
the case immediatelyset a date for the trial.
Article 144
In trying a simple civil case the basic people's courtthe tribunal
dispatched by it may use simplified methods to summon at any time the
parties witnesses.
Article 145
Simple civil cases shall be tried by a single judge alone the trial of
such cases shall not be bound by the provisions of Articles 122 124
127 of this Law.
Article 146
The people's court trying a case in which summary procedure is followed
shall conclude the case within three months after placing the case on the
docket.
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Chapter XIV Procedure of Second Instance
Article 147
If a party refuses to accept a judgment of first instance of a local
people's court he shall have the right to file an appeal with the
people's court at the next higher level within 15 days after the date on
which the written judgment was served.
If a party refuses to accept a written order of first instance of a local
people's court he shall have the right to file an appeal with a people's
court at the next higher level within 10 days after the date on which the
written order was served.
Article 148
For filing an appeal a petition for the purpose shall be submitted. The
content of the appeal petition shall include the names of the parties the
names of the legal persons their legal representativesnames of
other organizations their principal heads; the name of the people's
court the case was originally tried; file number of the case the
cause of action; the claims of the appeal the reasons.
Article 149
The appeal petition shall be submitted through the people's court which
originally tried the case copies of it shall be provided according to
the number of persons in the other partyof the representatives
thereof.
If a party appeals directly to a people's court of second instance the
said court shall within five days transmit the appeal petition to the
people's court which originally tried the case.
Article 150
The people's court which originally tried the case shall within five days
after receiving the appeal petition serve a copy of it on the other
party who shall submit his defence within 15 days the receipt of
such copy. The people's court shall within five days after receiving the
defence serve a copy of it on the appellant. Failure by the other party
to submit a defence shall not prevent the case being tried by the
people's court.
After receiving the appeal petition the defence the people's court
which originally tried the case shall within five days deliver them
together with the entire case file evidence to the people's court of
second instance.
Article 151
With respect to an appealed case the people's court of second instance
shall review the relevant facts the application of the law.
Article 152
With respect to a case on appeal the people's court of second instance
shall form a collegial panel to conduct the trial. After verification of
the facts of the case through consulting the files making investigations
questioning the parties if the collegial panel considers that it is
not necessary to conduct a trial it may make a judgmenta written
order directly.
The people's court of second instance may try a case on appeal at its own
sitein the place the case originated the people's court
which originally tried the case is located.
Article 153
After trying a case on appeal the people's court of second instance
shall in the light of the following situations dispose of it
accordingly:
(1) if the facts were clearly ascertained the law was correctly
applied in the original judgment the appeal shall be rejected in the form
of a judgment the original judgment shall be affirmed;
(2) if the application of the law was incorrect in the original judgment
the said judgment shall be amended according to the law;
(3) if in the original judgment the facts were incorrectlynot clearly
ascertained the evidence was insufficient the people's court of
second instance shall make a written order to set aside the judgment
rem to case to the original people's court for retrialthe people's
court of second instance may amend the judgment after investigating
clarifying the facts; or
(4) if there was violation of legal procedure in making the original
judgment which may have affected correct adjudication the judgment shall
be set aside by a written order the case remed to the original
people's court for retrial. The parties concerned may appeal against the
judgmentwritten order rendered in a retrial of their case.
Article 154
The people's court of second instance shall decide in the form of orders
in writing all cases of appeal against the written orders made by the
people's court of first instance.
Article 155
In dealing with a case on appeal a people's court of second instance may
conduct conciliation. If an agreement is reached through conciliation a
conciliation statement shall be made signed by the judicial officers
the court clerk with the seal of the people's court affixed to it.
After the conciliation statement has been served the original judgment of
the lower court shall be deemed as set aside.
Article 156
If an appellant applies for withdrawal of his appeal before a people's
court of second instance pronounces its judgment the court shall decide
whether to approve the applicationnot.
Article 157
In the trial of a case on appeal the people's court of second instance
shall apart observing the provisions of this Chapter follow the
ordinary procedure for trials of first instance.
Article 158
he judgment the written order of a people's court of second instance
shall be final.
Article 159
The people's court trying a case on appeal shall conclude the case within
three months after docketing the case. Any extension of the period
necessitated by special circumstances shall be subject to the approval of
the president of the court.
The people's court trying a case on appeal against a written order shall
within 30 days after docketing the case for second instance trial make a
written order which is final.
Chapter XV Special Procedure
Section 1 General Provisions
Article 160
When the people's courts try cases concerning the qualification of voters
the declaration of a person as missingdead the adjudgment of legal
incapacityrestricted legal capacity of a citizen the adjudgment of
a property as ownerless the provisions of this Chapter shall apply. For
matters not covered in this Chapter the relevant provisions of this Law
other laws shall apply .
Article 161
In cases tried in accordance with the procedure provided in this Chapter
the judgment of first instance shall be final . A collegial panel of
judges shall be formed for the trial of any case in involving the
qualification of votersof any major difficultcomplicated case;
other cases shall be tried by a single judge alone.
Article 162
If a people's court while trying a case in accordance with the procedure
provided in this Chapter finds that the case involves a civil dispute
over rights interests it shall make a written order to terminate the
special procedure inform the interested parties to otherwise institute
action.
Article 163
A people's court trying a case in which special procedure is followed
shall conclude the case within 30 days after placing the case on the
docketwithin 30 days after expiration of the period stated in the
public notice. Any extension of the time limit necessitated by special
circumstances shall be subject to the approval of the president of the
court excepting however a case concerning the qualification of voters.
Section 2 Cases Concerning the Qualification of Voters
Article 164
If a citizen refuses to accept an election committee's decision on an
appeal concerning his voting qualification he may five days before the
election day bring a suit in the basic people's court located in the
electoral district.
Article 165
After entertaining a case concerning voting qualification a people's
court must conclude the trial before the election day.
The party who brings the suit the representative of the election
committee other citizens concerned must participate in the
proceedings.
The written judgment of the people's court shall be served on the election
committee the party who brings the suit before the election day; other
citizens concerned shall be notified of the judgment.
Section 3 Cases Concerning the Declaration of a Person as MissingDead
Article 166
With respect to a citizen whose abouts are unknown for two years in
full if the interested party applies for declaring the person as missing
the application shall be filed with the basic people's court in the
locality the missing person has his domicile.
The application shall clearly state the facts time of the
disappearance of the person missing as well as the motion; documentary
evidence a public security organother relevant organs concerning
the disappearance of the citizen shall be appended to the application.
Article 167
With respect to a citizen whose abouts are unknown for four years in
fullwhose abouts are unknown for two years in full after an
accident in which he was involvedwith respect to a citizen whose
abouts are unknown after such an accident upon proof furnished
by the relevant authorities that it is impossible for him to survive if
the interested party applies for declaring such person as dead the
application shall be filed with the basic people's court in the locality
the missing person has his domicile.
The application shall clearly state the facts time of the
disappearance as well as the motion; documentary evidence a public
security organother relevant organs concerning the disappearance of
the citizen shall be appended to the application.
Article 168
After entertaining a case concerning the declaration of a person as
missingdead the people's court shall issue a public notice in search
of the person missing. The period of the public notice for declaring a
person as missing shall be three months that for declaring a person
as dead shall be one year. Where a citizen's abouts are unknown after
an accident in which he was involved upon proof furnished by the
relevant authorities that it is impossible for him to survive the period
of the public notice for proclaiming such person as dead shall be three
months.
On the expiration of the period of the public notice the people's court
shall depending on whether the fact of the missingdeath of the person
has been confirmed make a judgment declaring the person missingdead
or make a judgment rejecting the application.
Article 169
If a person who has been declared missingdead by a people's court
reappears the people's court shall upon the application of that person
or of an interested party make a new judgment annul the previous one.
Section 4 Cases Concerning the Adjudgment of Legal Incapacity or
Restricted Legal Capacity of Citizens
Article 170
An application for adjudgment of legal incapacityrestricted legal
capacity of a citizen shall be filed by the citizen's near relatives or
any other interested party with the basic people's court in the locality
the citizen has his domicile.
The application shall clearly state the fact grounds of the citizen's
legal incapacityrestricted legal capacity.
Article 171
After accepting such an application the people's court shall when
necessary have an expert evaluation of the citizen of whom the
determination of legal incapacityrestricted legal capacity is sought;
if the applicant has already provided an evaluation conclusion the
people's court shall examine such conclusion.
Article 172
In the trial by the people's court of a case for the determination of
legal incapacityrestricted legal capacity of a citizen a near
relative of the citizen shall be his agent the applicant being excluded.
If the near relatives of the citizen shift responsibility onto one
another the people's court shall appoint one of them as agent for the
citizen. If the citizen's condition of health permits the people's court
shall also seek the opinion of the citizen on the matter.
If through the trial the people's court finds that the application is
based on facts a judgment of legal incapacityrestricted legal
capacity of the citizen shall be made; if the court finds that the
application is not based on facts it shall make a judgment rejecting the
application.
Article 173
If upon the application of a person who has been determined as one of
legal incapacityrestricted legal capacityupon the application of
his guardian the people's court confirms that the causes of that person's
legal incapacityrestricted legal capacity have been eliminated a new
judgment shall be made annulling the previous one.
Section 5 Cases Concerning the Determination of a Property as Ownerless
Article 174
An application for determining a property as ownerless shall be filed by a
citizen legal personany other organization with the basic people's
court in the place the property is located.
The application shall clearly state the type quantity of the property
the grounds on which the application for determining the property as
ownerless is filed.
Article 175
The people's court shall after accepting such an application upon
examination verification of it issue a public notice calling on the
owner to claim the property. If no one claims the property one year after
the issue of the public notice the people's court shall make a judgment
determining the property as ownerless turn it over to the Statethe
collective concerned.
Article 176
If after a property has been determined by a judgment as ownerless the
owner of the propertyhis successor appears such a person may file a
claim for the property within the period of limitation specified in the
General Principles of the Civil Law. The people's court shall after
examination verification of the claim make a new judgment annulling
the previous one.
Chapter XVI Procedure for Trial Supervision
Article 177
If the president of a people's court at any level finds definite error in
a legally effective judgmentwritten order of his court deems it
necessary to have the case retried he shall refer it to the judicial
committee for discussion decision.
If the Supreme People's Court finds definite error in a legally effective
judgementwritten order of a local people's court at any levelif a
people's court at a higher level finds some definite error in a legally
effective judgmentwritten order of a people's court at a lower level
it shall respectively have the power to bring the case up for trial by
itselfdirect the people's court at a lower level to conduct a retrial.
Article 178
If a party to an action considers that there is error in a legally
effective judgmentwritten order he may apply to the people's court
which originally tried the caseto a people's court at the next higher
level for a retrial; however execution of the judgmentorder shall not
be suspended.
Article 179
If an application made by a party meets any of the following conditions
the people's court shall retry the case:
(1) there is sufficient new evidence to set aside the original judgment or
written order;
(2) the main evidence on which the facts were ascertained in the original
judgmentwritten order was insufficient;
(3) there was definite error in the application of the law in the original
judgmentwritten order;
(4) there was violation by the people's court of the legal procedure which
may have affected the correctness of the judgmentwritten order in the
case; or
(5) the judicial officers have committed embezzlement accepted bribes
done malpractices for personal benefits perverted the law in the
adjudication of the case.
The people's court shall reject the application that meets none of the
conditions specified above.
Article 180
With respect to a legally effective conciliation statement if evidence
furnished by a party proves that the conciliation violates the principle
of voluntarinessthat the content of the conciliation agreement
violates the law the party may apply for a retrial. If the foregoing
proves true after its examination the people's court shall retry the
case.
Article 181
With respect to a legally effective judgment on dissolution of marriage
neither of the two parties shall apply for a retrial.
Article 182
Application for a retrial made by a party must be submitted within two
years after the judgmentwritten order becomes legally effective.
Article 183
When a decision is made to retry a case in accordance with the procedure
for trial supervision the execution of the original judgment shall be
suspended by a written order which shall be signed by the president of the
court with the seal of the people's court affixed to it.
Article 184
With respect to a case pending retrial by a people's court in accordance
with the procedure for trial supervision if the legally effective
judgmentwritten order was made by a court of first instance the case
shall be tried in accordance with the procedure of first instance the
parties concerned may appeal against the new judgmentorder; if the
legally effective judgmentwritten order was made by a court of second
instance the case shall be tried in accordance with the procedure of
second instance the new judgmentwritten order shall be legally
effective; if it is a case which was brought up for trial by a people's
court at a higher level it shall be tried in accordance with the
procedure of second instance the new judgmentwritten order shall
be legally effective.
The people's court shall form a new collegial panel for the purpose of the
retrial.
Article 185
If the Supreme People's Procuratorate finds that a legally effective
judgmentwritten order made by a people's court at any level involves
any of the following circumstancesif a people's procuratorate at a
higher level finds that a legally effective judgmentwritten order made
by a people's court at a lower level involves any of the following
circumstances the Supreme People's Procuratoratethe people's
procuratorate at a higher level shall respectively lodge a protest in
accordance with the procedure for trial supervision:
(1) the main evidence for ascertaining the facts in the previous judgment
or written order was insufficient;
(2) there was a definite error in the application of the law in the
previous judgmentwritten order;
(3) there was violation by the people's court of the legal procedure which
may have affected the correctness of the judgmentwritten order; or
(4) the judicial officers have committed embezzlement accepted bribes
done malpractice for personal benefits perverted the law in the trial
of the case. If a local people's procuratorate at any level finds that a
legally effective judgmentwritten order made by a people's court at
the corresponding level involves any of the circumstances specified above
it shall refer the matter to the people's procuratorate at a higher level
with the request that a protest be lodged by the latter in accordance with
the procedure for trial supervision.
Article 186
Cases in which protest was made by the people's procuratorate shall be
retried by the people's court.
Article 187
When a people's procuratorate decides to lodge a protest against a
judgmentwritten order made by a people's court it shall make the
protest in writing.
Article 188
The people's court shall in retrying a case in which protest was lodged
by a people's procuratorate notify the procuratorate to send
representatives to attend the court session.
Chapter XVII Procedure for Hastening Debt Recovery
Article 189
When a creditor requests payment of a pecuniary debtrecovery of
negotiable instruments a debtor he may if the following
requirements are met apply to the basic people's court that has
jurisdiction for an order of payment:
(1) no other debt disputes exist between the creditor the debtor;
(2) the order of payment can be served on the debtor.
The application shall clearly state the requested amount of moneyof
the negotiable instruments the facts evidence on the basis of
which the application is made.
Article 190
After the creditor has submitted his application the people's court shall
within five days inform the creditor whether it accepts the application or
not.
Article 191
After accepting the application upon examination of the facts
evidence provided by the creditor the people's court shall if the rights
obligations relationship between the creditor the debtor is clear
legitimate issue within 15 days after accepting the application an
order of payment to the debtor; if the application is unfounded the
people's court shall make an order to reject it.
The debtor shall within 15 days after receipt of the order of payment
clear off his debtssubmit to the people's court his dissent in
writing.
If the debtor has neither dissented nor complied with the order of
payment within the period specified in the preceding paragraph the
creditor may apply to the people's court for execution.
Article 192
The people's court shall on receiving the dissent in writing submitted by
the debtor make an order to terminate the procedure for hastening debt
recovery the order of payment shall of itself be invalidated. The
creditor may bring an action in the people's court.
Chapter XVIII Procedure for Publicizing Public Notice for Assertion of Claims
Article 193
Any holder of a bill transferable by endorsement according to the law may
if the bill is stolen lostdestroyed apply to the basic people's
court of the place the bill is to be paid for publication of public
notice for assertion of claims. The provisions of this Chapter shall apply
to other matters for which according to the law an application for
publication of a public notice for assertion of claims may be made.
The applicant shall submit to the people's court an application which
clearly states the main contents of the bill such as the face amount the
drawer the holder the endorser the facts reasons in respect of
the application.
Article 194
The people's court shall upon deciding to accept the application notify
the payor concerned in the meantime to suspend the payment shall
within three days issue a public notice for the interested parties to
assert their rights. The period of the public notice shall be decided at
the discretion of the people's court; however it shall not be less than
60 days.
Article 195
The payor shall upon receiving the notification by the people's court to
suspend the payment do so accordingly till the conclusion of the
procedure for publicizing a public notice for assertion of claims.
Within the period of the public notice assignment of rights on the bill
shall be void.
Article 196
Interested partyparties as claimants shall report their claims to the
people's court within the period of the public notice.
After receiving the report on the claims by interested partyparties
the people's court shall make a written order to terminate the procedure
for publicizing public notice for assertion of claims notify the
applicant the payor.
The applicantthe claimants may bring an action in the people's court.
Article 197
If no claim is asserted the people's court shall make a judgment on the
basis of the application to declare the bill in question null void.
The judgment shall be published the payor notified accordingly. As of
the date of publication of the judgment the applicant shall be entitled
to payment by the payor.
Article 198
If an interested party for justified reasons was unable to submit his
claim to the people's court before the judgment is made he may within
one year after the day he knowsshould know the publication of the
judgment bring an action in the people's court which has made the
judgment.
Chapter XIX Procedure for Bankruptcy Debt Repayment of Legal Person Enterprises
Article 199
If a legal person enterprise has suffered serious losses is unable to
repay the debts at maturity the creditors may apply to a people's court
for declaring the debtor bankrupt for debts to be repaid; the debtor may
likewise apply to a people's court for declaring bankruptcy for debts to
be repaid.
Article 200
After making an order to declare the initiation of the bankruptcy debt
repayment proceedings the people's court shall notify the debtor the
known creditors within ten days also make a public announcement.
Creditors who have been notified shall within 30 days after receiving the
notice those who have not been notified shall within three months
after the date of the announcement lodge their claims with the people's
court. Creditors who fail to lodge their claims during the respective
periods shall be deemed to have aboned their rights.
Creditors may organize a creditors' meeting to discuss approve of a
formula for the disposition distribution of bankrupt propertyfor
a composition agreement.
Article 201
The people's court may appoint a liquidation commission formed by relevant
state organs persons concerned. The liquidation commission shall take
charge of the custody of the bankrupt property its liquidation
assessment disposition distribution. The liquidation commission may
also engage in necessary activities of a civil nature according to the
law.
The liquidation commission shall be responsible report its work to the
people's court.
Article 202
If the legal person enterprise the creditors reach a composition
agreement the people's court shall after approving the agreement make a
public announcement of it terminate the bankruptcy debt repayment
proceedings. The composition agreement shall be legally effective as of
the date of the public announcement.
Article 203
With respect to the property mortgagedotherwise used as security for
bank loansother obligations the bank other creditors shall have
priority in the repayment of debts as regards the property mortgaged or
used as security for other kinds of obligations. If the money value of the
property mortgagedused as security for other kinds of obligations
exceeds the amount of loans secured the surplus shall go to the bankrupt
property for debt repayment.
Article 204
After deduction of bankruptcy proceedings expenses the bankrupt
property first repayment shall be made in the following order of
priority:
(1) wages salaries of staff workers labour insurance expenses
that are owned by the bankrupt enterprise;
(2) taxes owed by the bankrupt enterprise;
(3) claims by creditors in the bankruptcy proceedings.
Where the bankrupt property is insufficient to meet the repayment claims
of the same order of priority it shall be distributed on a pro-rata
basis.
Article 205
The debt repayment of a bankrupt legal person enterprise shall be under
the jurisdiction of the people's court of the place the legal person
enterprise is located.
Article 206
The provisions of the Law of the People's Republic of
Bankruptcy shall apply to bankruptcy debt repayment of enterprises
owned by the whole people.
The provisions of this Chapter shall not apply to non-legal person
enterprises individual businesses leaseholding farm households
partnerships by private individuals.
PART THREE PROCEDURE OF EXECUTION
Chapter XX General Provisions
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Article 207
Legally effective judgmentswritten orders in civil cases as well as
the paeral Provisions
Article 207
Legally effective judgmentswritten orders in civil cases as well as
the parts of judgmentswritten orders that relate to property in
criminal cases shall be executed by the people's court of first instance.
Other legal documents which are to be executed by a people's court as
prescribed by the law shall be executed by the people's court of the place
the person subjected to execution has his domicile the
property subject to execution is located.
Article 208
If in the course of execution an outsider raises an objection with
respect to the object subjected to execution the execution officer shall
examine the objection in accordance with the procedure prescribed by the
law. If the reasons for the objection are untenable the objection shall
be rejected; if otherwise execution shall be suspended with the approval
of the president of the court. If definite error is found in the judgment
or the written order it shall be dealt with in accordance with the
procedure for trial supervision.
Article 209
Execution work shall be carried out by the execution officer.
When carrying out a compulsory execution measure the execution officer
shall produce his credentials. After the execution is completed the
execution officer shall make a record of the particulars of the execution
have it signedsealed by the persons concerned on the scene.
The basic people's court the intermediate people's court may when
necessary establish execution organs whose functions shall be defined by
the Supreme People's Court.
Article 210
If a personproperty subjected to execution is in another locality the
people's court in that locality may be entrusted with the carrying out of
the execution. The entrusted people's court shall begin the execution
within 15 days after receiving a letter of entrustment shall not
refuse to do so. After the execution has been completed the entrusted
people's court shall promptly inform the entrusting people's court by
letter of the result of the execution. If the execution has not been
completed within 30 days the entrusted people's court shall also inform
the entrusting people's court by letter of the particulars of the
execution.
If the entrusted people's court does not carry out the execution within 15
days after receiving the letter of entrustment the entrusting people's
court may request the people's court at a higher level over the entrusted
people's court to instruct the entrusted people's court to carry out the
execution.
Article 211
If in the course of execution the two parties become reconciled reach
a settlement agreement on their own initiative the execution officer
shall make a record of the contents of the agreement both parties
shall affix their signaturesseals to the record.
If either party fails to fulfil the settlement agreement the people's
court may at the request of the other party resume the execution of the
legal document which was originally effective.
Article 212
In the course of execution if the person subjected to execution provides
a guaranty the people's court may with the consent of the person who has
applied for execution decide on the suspension of the execution the
time limit for such suspension. If the person subjected to execution still
fails to perform his obligations after the time limit the people's court
shall have the power to execute the property he provided as security or
the property of the guarantor.
Article 213
If the citizen subjected to execution dies his debts shall be paid off
the deceased estate; if a legal personany other organization
subjected to execution dissolves the party that succeeds to its rights
obligations shall fulfil the obligations.
Article 214
After the completion of execution if definite error is found in the
executed judgment written orderother legal documents resulting in the
annulment of such judgment orderlegal documents by the people's
court the said court shall with respect to the property which has been
executed make a written order that persons who have obtained the property
shall return it. In the event of refusal to return such property
compulsory execution shall be carried out.
Article 215
The provisions of this Part shall be applicable to the execution of the
conciliation statement as drawn up by the people's court.
Chapter XXI Application for Execution Referral
Article 216
The parties concerned must comply with legally effective judgments or
written orders in civil cases. If a party refuses to do so the other
party may apply to the people's court for executionthe judge may
refer the matter to the execution officer for enforcement.
The parties concerned must comply with the conciliation statement
other legal documents that are to be executed by the people's court. If a
party refuses to do so the other party may apply to the people's court
for enforcement.
Article 217
If a party fails to comply with an award of an arbitral organ established
according to the law the other party may apply for execution to the
people's court which has jurisdiction over the case. The people's court
applied to shall enforce the award.
If the party against whom the application is made furnishes proof that the
arbitral award involves any of the following circumstances the people's
court shall after examination verification by a collegial panel make
a written order not to allow the enforcement:
(1) the parties have had no arbitration clause in their contract nor have
subsequently reached a written agreement on arbitration;
(2) the matters dealt with by the award fall outside the scope of the
arbitration agreementare matters which the arbitral organ has no power
to arbitrate;
(3) the composition of the arbitration tribunalthe procedure for
arbitration contradicts the procedure prescribed by the law;
(4) the main evidence for ascertaining the facts is insufficient;
(5) there is definite error in the application of the law; or
(6) the arbitrators have committed embezzlement accepted bribesdone
malpractice for personal benefitsperverted the law in the arbitration
of the case.
If the people's court determines that the execution of the arbitral award
is against the social public interest it shall make an order not to
allow the execution.
The above-mentioned written order shall be served on both parties the
arbitral organ.
If the execution of an arbitral award is disallowed by a written order of
the people's court the parties may in accordance with a written
agreement on arbitration reached between them apply for arbitration
again; they may also bring an action in a people's court.
Article 218
If a party fails to comply with a document evidencing the creditor's
rights made enforceable according to the law by a notary office the other
party may apply to the people's court which has jurisdiction over the case
for execution. The people's court applied to shall enforce such document.
If the people's court finds definite error in the document of creditor's
rights it shall make an order not to allow the execution serve the
order on both parties concerned as well as the notary office.
Article 219
The time limit for the submission of an application for execution shall be
one year if bothone of the parties are citizens; it shall be six
months if both parties are legal personsother organizations.
The above-mentioned time limit shall be calculated the last day of
the period of performance specified by the legal document. If the legal
document specifies performance in stages the time limit shall be
calculated the last day of the period specified for each stage of
performance.
Article 220
The execution officer shall after receiving the application for execution
or the writ of referral directing execution send an execution notice to
the person subjected to execution instructing him to comply within the
specified time. If the person fails to comply accordingly compulsory
execution shall be carried out.
Chapter XXII Execution Measures
Article 221
If the person subjected to execution fails to fulfil according to the
execution notice the obligations specified in the legal document the
people's court shall be empowered to make inquiries with banks credit
cooperativesother units that deal with savings deposit into the
deposit accounts of the person subjected to execution shall be
empowered to freezetransfer his deposits; however the inquiries
freezingtransfer of the deposits shall not exceed the scope of the
obligations to be fulfilled by the person subjected to execution.
The people's court shall in deciding to freezetransfer a deposit
make a written order issue a notice for assistance in execution.
Banks credit cooperativesother units that deal with savings deposit
must comply with it.
Article 222
If the person subjected to execution fails to fulfil according to the
execution notice the obligations specified in the legal document the
people's court shall be empowered to withholdwithdraw part of the
income of the person subjected to execution for the fulfilment of his
obligations. However it shall leave out the necessary living expenses for
the person subjected to execution his dependant family members.
The people's court shall when withholdingwithdrawing the income make
a written order issue a notice for assistance in execution. The unit
in which the person subjected to execution works banks credit
cooperativesother units that deal with savings deposit must comply
with the notice.
Article 223
If the person subjected to execution fails to fulfil according to the
execution notice the obligations specified in the legal document the
people's court shall be empowered to seal up distrain freeze sell by
public auctionsell off part of the property of the person subjected
to execution for the fulfilment of his obligations. However it shall
leave out the necessaries of life for the person subjected to execution
his dependant family members.
The people's court shall make an order for the adoption of the measures
specified in the preceding paragraph.
Article 224
When the people's court seals updistrains a property it shall if the
person subjected to execution is a citizen notify himan adult member
of his family to appear on the scene; if the party subjected to execution
is a legal personany other organization it shall notify its legal
representativesits principal heads to be present. Their refusal to
appear on the scene shall not hinder the execution. If the person
subjected to execution is a citizen his unitthe grass-roots
organization of the place his property is located shall send a
representative to attend the execution.
An inventory of the sealed-updistrained property must be made by the
execution officer after the inventory has been signedsealed by
the persons on the scene a copy of it shall be given to the person
subjected to execution. If the person subjected to execution is a citizen
another copy may be given to an adult member of his family.
Article 225
The execution officer may commit the sealed-up property to the person
subjected to execution for safekeeping the person shall be held
responsible for any losses incurred due to his fault.
Article 226
After a property has been sealed updistrained the execution officer
shall instruct the person subjected to execution to fulfil within the
prescribed period the obligations specified in the legal document. If the
person has not fulfilled his obligations upon expiration of the period
the people's court may in accordance with the relevant legal provisions
entrust the relevant units with selling by public auctionselling off
the sealed-updistrained property. Articles which are prohibited
free trading by the State shall be delivered to purchased by the
relevant units at the price fixed by the State.
Article 227
If the person subjected to execution fails to fulfil his obligations
specified in the legal document conceals his property the people's
court shall be empowered to issue a search warrant search him his
domicilethe place the property was concealed.
In adopting the measure mentioned in the preceding paragraph the
president of the people's court shall sign issue the search warrant.
Article 228
With respect to the propertynegotiable instruments specified for
delivery in the legal document the execution officer shall summon both
parties concerned deliver them in their presencethe execution
officer may forward them to the recipient who shall sign give a
receipt.
Any unit concerned that has in possession the propertynegotiable
instruments shall turn them over to the recipient in accordance with the
notice of the people's court for assistance in execution the
recipient shall sign give a receipt.
If any citizen concerned has in possession the propertynegotiable
instruments the people's court shall notify him to h them over. If he
refuses to do so compulsory execution shall be carried out.
Article 229
Compulsory eviction a buildinga plot of l shall require a
public notice signed issued by the president of a people's court
instructing the person subjected to execution to comply within a specified
period of time. If the person subjected to execution fails to do so upon
the expiration of the period compulsory execution shall be carried out by
the execution officer.
When compulsory execution is being carried out if the person subjected to
execution is a citizen the personan adult member of his family shall
be notified to be present; if the party subjected to execution is a legal
personany other organization its legal representativesprincipal
heads shall be notified to be present; their refusal to be present shall
not hinder the execution. If the person subjected to execution is a
citizen his work unitthe grass-roots organization in the locality of
the buildingthe plot of l shall send a representative for
attendance. The execution officer shall make a record of the particulars
of the compulsory execution with the signaturesseals of the persons
on the scene affixed to it.
The people's court shall assign personnel to transport the property
removed in a compulsory eviction a building to a designated location
turn it over to the person subjected to execution or if the person is
a citizen to an adult member of his family; if any loss is incurred due
to such person's refusal to accept the property the loss shall be borne
by the person subjected to execution.
Article 230
In the course of execution if certain formalities for the transfer of
certificates of property right need to be gone through the people's court
may issue a notice for assistance in execution to the relevant units
they must comply with it.
Article 231
If the person subjected to execution fails to perform acts specified in a
judgementwritten orderany other legal document according to the
execution notice the people's court may carry out compulsory execution or
entrust the task to a relevant unitother persons the person
subjected to execution shall bear the expenses thus incurred.
Article 232
If the person subjected to execution fails to fulfil his obligations with
respect to pecuniary payment within the period specified by a judgment or
written orderany other legal document he shall pay double interest on
the debt for the belated payment. If the person subjected to execution
fails to fulfil his other obligations within the period specified in the
judgmentwritten orderany other legal document he shall pay a
charge for the dilatory fulfilment.
Article 233
After the adoption of the execution measures stipulated in Articles 221
222 223 of this Law if the person subjected to execution is still
unable to repay the debts he shall continue to fulfil his obligations.
If the creditor finds that the person subjected to execution has any other
property he may at any time apply to the people's court for execution.
Chapter XXIII Suspension Termination of Execution
Article 234
The people's court shall make a written order to suspend execution under
any of the following circumstances:
(1) the applicant indicates that the execution may be postponed;
(2) an outsider raises an obviously reasonable objection to the object of
the execution;
(3) a citizen as one of the parties dies it is necessary to wait for
the successor to inherit the rights of the deceasedto succeed to his
obligations;
(4) a legal personany other organization as one of the parties
dissolves the party succeeding to its rights obligations has not
been determined; or
(5) other circumstances occur under which the people's court deems the
suspension of execution necessary.
Execution shall be resumed when the circumstances warranting the
suspension of execution have disappeared.
Article 235
The people's court shall make a written order to terminate execution under
any of the following circumstances:
(1) the applicant has withdrawn his application;
(2) the legal document on which the execution is based has been revoked;
(3) the citizen subjected to execution dies there is no estate that
may be subjected to execution nor anyone to succeed to his obligations;
(4) the person entitled to claim alimonysupport for elderschildren
dies;
(5) the citizen subjected to execution is too badly off to repay his
debts has no source of income has lost his ability to work as well;
or
(6) other circumstances occur under which the people's court deems the
termination of execution necessary.
Article 236
A written order to suspendterminate execution shall become effective
immediately after being served on the parties concerned.
PART FOUR SPECIAL PROVISIONS FOR CIVIL PROCEDURE OF CASES INVO-LVING FOREIGN ELEMENT
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Chapter XXIV General Principles
Article 237
The provisions of this Part shall be applicable to civil proceedings
within the territory of the People's Republic of
involving foreign element. Where it is not covered by the provisions of
this Part other relevant provisions of this Law shall apply.
Article 238
If an international treaty concludedacceded to by the People's
Republic of China contains provisions that differ provisions of this
Law the provisions of the international treaty shall apply except those
on which
Article 239
Civil actions brought against a foreign national a foreign organization
or an international organization that enjoys diplomatic privileges
immunities shall be dealt with in accordance with the relevant law of the
People's Republic of
treaties concludedacceded to by the People's Republic of
Article 240
The people's court shall conduct trials of civil cases involving foreign
element in the spoken written language commonly used in the People's
Republic of
parties concerned the expenses shall be borne by them.
Article 241
When foreign nationals stateless personsforeign enterprises
organizations need lawyers as agents ad litem to bring an actionenter
appearance on their behalf in the people's court they must appoint
lawyers of the People's Republic of
Article 242
Any power of attorney mailedforwarded by other means outside the
territory of the People's Republic of
stateless persona foreign enterprise organization that has no
domicile in the People's Republic of
or any other person of the People's Republic of
must be notarized by a notarial office in the country of domicile
authenticated by the Chinese embassyconsulate accredited to that
country or for the purpose of verification must go through the
formalities stipulated in the relevant bilateral treaties between China
that country before it becomes effective.
Chapter XXV Jurisdiction
Article 243
In the case of an action concerning a contract disputeother disputes
over property rights interests brought against a defendant who has no
domicile within the territory of the People's Republic of
contract is signedperformed within the territory of the People's
Republic of Chinaif the object of the action is located within the
territory of the People's Republic of
distrainable property within the territory of the People's Republic of
territory of the People's Republic of
place the contract is signedperformed the object of
the action is the defendant's distrainable property is located
or the torts are done the defendant's representative
office is located shall have jurisdiction.
Article 244
Parties to a dispute over a contract concluded with foreign element or
over property rights interests involving foreign element may through
written agreement choose the court of the place which has practical
connections with the dispute to exercise jurisdiction. If a people's court
of the People's Republic of
provisions of this Law on jurisdiction by forum level on exclusive
jurisdiction shall not be violated.
Article 245
If in a civil action in respect of a case involving foreign element the
defendant raises no objection to the jurisdiction of a people's court
responds to the action by making his defence he shall be deemed to have
accepted that this people's court has jurisdiction over the case.
Article 246
Actions brought on disputes arising the performance of contracts for
Chinese-foreign equity joint venturesChinese-foreign contractual
joint venturesChinese-foreign cooperative exploration development
of the natural resources in the People's Republic of
under the jurisdiction of the people's courts of the People's Republic of
Chapter XXVI Service Time Periods
Article 247
A people's court may serve litigation documents on a party who has no
domicile within the territory of the People's Republic of
following ways:
(1) in the way specified in the international treaties concluded or
acceded to by both the People's Republic of
the person on whom service is to be made resides;
(2) by making the service through diplomatic channels;
(3) with respect to the person on whom the service is to be made who
is of the nationality of the People's Republic of
entrusted to the embassyconsulate of the People's Republic of
accredited to the country the person resides;
(4) by making the service on the agent ad litem who is authorized to
receive the documents served;
(5) by serving the documents on the representative office established in
the People's Republic of China by the person on whom the service is to be
madeon his branch officebusiness agents there who have the right
to receive the documents;
(6) by making service by mail if the law of the country the person
on whom the service is to be made resides so permits; in the event that
the receipt of delivery is not returned six months after the date on which
the documents were mailed that circumstances justify the assumption
that service has been made the service shall be deemed completed upon the
expiration of the said time period;
(7) by making service by public notice if none of the above-mentioned
methods can be employed. The service shall be deemed completed six months
after the date on which the public notice was issued.
Article 248
If a defendant has no domicile within the territory of the People's
Republic of China the people's court shall serve a copy of the statement
of complaint on the defendant notify him to submit his defence within
30 days after he receives the copy of the statement of complaint.
Extension of the period requested by the defendant shall be at the
discretion of the people's court.
Article 249
If a party who has no domicile within the territory of the People's
Republic of China is not satisfied with a judgmentwritten order made
by a people's court of first instance he shall have the right to file an
appeal within 30 days the date the written judgmentorder is
served. The appellee shall submit his defence within 30 days after receipt
of a copy of the appeal petition. If a party who is unable to file an
appealsubmit a defence within the period prescribed by the law
requests an extension of the period the people's court shall decide
whether to grant it.
Article 250
The period for the trials of civil cases involving foreign element by the
people's court shall not be restricted by the provisions of Articles 135
159 of this Law.
Chapter XXVII Property Preservation
Article 251
The parties to an action may in accordance with the provisions of Article
92 of this Law apply to the people's court for property preservation.
Interested parties may in accordance with the provisions of Article 93 of
this Law apply to the people's court for property preservation before an
action is brought.
Article 252
After a people's court makes an order granting property preservation
before litigation the applicant shall bring an action within 30 days. If
he fails to bring the action within the period the people's court shall
cancel the property preservation.
Article 253
After the people's court makes an order granting property preservation if
the party against whom the application is made provides a guaranty the
people's court shall cancel the property preservation.
Article 254
If the application is wrongfully made the applicant shall compensate the
party against whom the application is made for losses incurred the
property preservation.
Article 255
If the property to be preserved by a people's court needs supervision the
court shall notify the unit concerned to be responsible for the
supervision the party against whom the application is made shall bear
the expenses.
Article 256
The order to cancel the preservation issued by a people's court shall be
carried out by an execution officer.
Chapter XXVIII Arbitration
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Article 257
In the case of a dispute arising the foreign economic trade
transportmaritime activities of
arbitration clause in the contract concernedhave subsequently reached
a written arbitration agreement stipulating the submission of the dispute
for arbitration to an arbitral organ in the People's Republic of
hling cases involving foreign elementto any other arbitral body
they may not bring an action in a people's court. If the parties have not
had an arbitration clause in the contract concernedhave not
subsequently reached a written arbitration agreement they may bring an
action in a people's court.
Article 258
If a party has applied for property preservation measures the arbitral
organ of the People's Republic of
element shall refer the party's application for a decision to the
intermediate people's court of the place the party against whom the
application is made has his domicile his property is located.
Article 259
In a case in which an award has been made by an arbitral organ of the
People's Republic of
parties may not bring an action in a people's court. If one party fails to
comply with the arbitral award the other party may apply for its
enforcement to the intermediate people's court of the place the
party against whom the application for enforcement is made has his
domicile his property is located.
Article 260
A people's court shall after examination verification by a collegial
panel of the court make a written order not to allow the enforcement of
the award rendered by an arbitral organ of the People's Republic of
hling cases involving foreign element if the party against whom the
application for enforcement is made furnishes proof that:
(1) the parties have not had an arbitration clause in the contracthave
not subsequently reached a written arbitration agreement;
(2) the party against whom the application for enforcement is made was not
given notice for the appointment of an arbitratorfor the inception of
the arbitration proceedingswas unable to present his case due to
causes for which he is not responsible;
(3) the composition of the arbitration tribunalthe procedure for
arbitration was not in conformity with the rules of arbitration; or
(4) the matters dealt with by the award fall outside the scope of the
arbitration agreementwhich the arbitral organ was not empowered to
arbitrate.
If the people's court determines that the enforcement of the award goes
against the social public interest of the country the people's court
shall make a written order not to allow the enforcement of the arbitral
award.
Article 261
If the enforcement of an arbitral award is disallowed by a written order
of a people's court the parties may in accordance with a written
arbitration agreement reached between them apply for arbitration again;
they may also bring an action in a people's court.
Chapter XXIX Judicial Assistance
Article 262
In accordance with the international treaties concludedacceded to by
the People's Republic of
people's courts of
assistance in the service of legal documents in investigation
collection of evidencein other litigation actions.
The people's court shall not render the assistance requested by a foreign
court if it impairs the sovereignty securitysocial public
interest of the People's Republic of
Article 263
The request for the providing of judicial assistance shall be effected
through channels provided in the international treaties concluded or
acceded to by the People's Republic of
treaties they shall be effected through diplomatic channels.
A foreign embassyconsulate accredited to the People's Republic of
collect evidence among them provided that the laws of the People's
Republic of China are not violated no compulsory measures are taken.
Except for the conditions provided in the preceding paragraph no foreign
organizationindividual may without the consent of the competent
authorities of the People's Republic of
investigations collect evidence within the territory of the People's
Republic of
Article 264（國際貿易法律網http://www.tushar-pawar.com）
The letter of request for judicial assistance its annexes sent by a
foreign court to a people's court shall be appended with a Chinese
translationa text in any other languagelanguages specified in the
relevant international treaties.
The letter of request its annexes sent to a foreign court by a
people's court for judicial assistance shall be appended with a
translation in the language of that countrya text in any other
languagelanguages specified in the relevant international treaties.
Article 265
The judicial assistance provided by the people's courts shall be rendered
in accordance with the procedure prescribed by the laws of the People's
Republic of
by a foreign court it may also be rendered provided that the special
form requested does not contradict the laws of the People's Republic of
Article 266
If a party applies for enforcement of a legally effective judgment or
written order made by a people's court the opposite partyhis
property is not within the territory of the People's Republic of
the applicant may directly apply for recognition enforcement to the
foreign court which has jurisdiction. The people's court may also in
accordance with the relevant provisions of the international treaties
concludedacceded to by
request recognition enforcement by the foreign court.
If a party applies for enforcement of a legally effective arbitral award
made by an arbitral organ in the People's Republic of
involving foreign element the opposite partyhis property is not
within the territory of the People's Republic of
apply for recognition enforcement of the award to the foreign court
which has jurisdiction.
Article 267
If a legally effective judgmentwritten order made by a foreign court
requires recognition enforcement by a people's court of the People's
Republic of China the party concerned may directly apply for recognition
enforcement to the intermediate people's court of the People's
Republic of China which has jurisdiction. The foreign court may also in
accordance with the provisions of the international treaties concluded or
acceded to by that foreign country the People's Republic of
with the principle of reciprocity request recognition enforcement by
a people's court.
Article 268
In the case of an applicationrequest for recognition enforcement
of a legally effective judgmentwritten order of a foreign court the
people's court shall after examining it in accordance with the
international treaties concludedacceded to by the People's Republic of
that it does not contradict the basic principles of the law of the
People's Republic of China nor violates State sovereignty security
social public interest of the country recognize the validity of the
judgmentwritten order if required issue a writ of execution to
enforce it in accordance with the relevant provisions of this Law; if the
applicationrequest contradicts the basic principles of the law of the
People's Republic of Chinaviolates State sovereignty security
social public interest of the country the people's court shall not
recognize enforce it.
Article 269
If an award made by a foreign arbitral organ requires the recognition
enforcement by a people's court of the People's Republic of
party concerned shall directly apply to the intermediate people's court of
the place the party subjected to enforcement has his domicile or
his property is located. The people's court shall deal with the
matter in accordance with the international treaties concludedacceded
to by the People's Republic of
Article 270
This Law shall come into force as of the date of promulgation the
Civil Procedure Law of the People's Republic of
Implementation) shall be abrogated simultaneously.
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