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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
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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 CHINA

(國際貿易法律網http://www.sensuous.net.cn

 

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 China is formulated on the basis of the Constitution in the light of the experience actual conditions of our country in the trial of civil cases.

Article 2

The Civil Procedure Law of the People's Republic of China aims to protect the exercise of the litigation rights of the parties 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 China must abide by this Law.

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 China.

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 China;

(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 China then transmitted for authentication to the embassyconsulate

of the People's Republic of China accredited to that third countryit must be certified by a local patriotic overseas Chinese organization.

Article 60

A party to an action shall inform the people's court in writing if he 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.

(國際貿易法律網http://www.sensuous.net.cn

 

 

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.

 

(國際貿易法律網http://www.sensuous.net.cn

 

 

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 China on Enterprise

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

 

 

(國際貿易法律網http://www.sensuous.net.cn

 

 

 

Chapter XXIV General Principles

 

 

Article 237

The provisions of this Part shall be applicable to civil proceedings

within the territory of the People's Republic of China in regard to cases

involving foreign element. Where it is not covered by the provisions of

this Part other relevant provisions of this Law shall apply.

Article 238

If an international treaty 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 China has made reservations.

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 China the provisions of the international

treaties concludedacceded to by the People's Republic of China.

Article 240

The people's court shall conduct trials of civil cases involving foreign

element in the spoken written language commonly used in the People's

Republic of China. Translation may be provided at the request of the

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 China.

Article 242

Any power of attorney mailedforwarded by other means outside the

territory of the People's Republic of China by a foreign national

stateless persona foreign enterprise organization that has no

domicile in the People's Republic of China for the appointment of a lawyer

or any other person of the People's Republic of China as an agent ad litem

must be notarized by a notarial office in the country of domicile

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 China if the

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 Chinaif the defendant has

distrainable property within the territory of the People's Republic of

Chinaif the defendant has its representative office within the

territory of the People's Republic of China the people's court of the

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 China is chosen to exercise jurisdiction the

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 China shall fall

under the jurisdiction of the people's courts of the People's Republic of

China.

 

 

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 China in the

following ways:

(1) in the way specified in the international treaties concluded or

acceded to by both the People's Republic of China the country

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 China service may be

entrusted to the embassyconsulate of the People's Republic of China

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 China if the parties have had an

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 China

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 China hling cases involving foreign

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 China hling cases involving foreign element the

parties may not bring an action in a people's court. If one party fails to

comply with the arbitral award the other party may apply for its

enforcement to the intermediate people's court of the place 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 China

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 Chinawith the principle of reciprocity the

people's courts of China foreign courts may make mutual requests for

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 China.

Article 263

The request for the providing of judicial assistance shall be effected

through channels provided in the international treaties concluded or

acceded to by the People's Republic of China; in the absence of such

treaties they shall be effected through diplomatic channels.

A foreign embassyconsulate accredited to the People's Republic of

China may serve documents on its citizens make investigations

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 China serve documentsmake

investigations collect evidence within the territory of the People's

Republic of China.

Article 264(國際貿易法律網http://www.sensuous.net.cn

 

 

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 China. If a special form of judicial assistance is requested

by a foreign court it may also be rendered provided that the special

form requested does not contradict the laws of the People's Republic of

China.

Article 266

If a party applies for enforcement of a legally effective judgment or

written order made by a people's court the opposite partyhis

property is not within the territory of the People's Republic of China

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 Chinawith the principle of reciprocity

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 China hling cases

involving foreign element the opposite partyhis property is not

within the territory of the People's Republic of China he may directly

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 China or

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

Chinawith the principle of reciprocity arriving at the conclusion

that it does not contradict the basic principles of the law of the

People's Republic of China nor violates State sovereignty security

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 China the

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 Chinawith the principle of reciprocity.

Article 270

This Law shall come into force as of the date of promulgation the

Civil Procedure Law of the People's Republic of China (for Trial

Implementation) shall be abrogated simultaneously.

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