Litigation Costs: Civil Procedure Law China

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Chapter XI

Litigation Costs

Article 107 Any party filing a civil lawsuit shall pay court costs according to the rules. For property cases, the party shall pay other fees in addition to the court costs.

Any party that has genuine difficulty in paying litigation costs may, according to the relevant rules, apply to the people’s court for deferment or reduction of the payment or for its exemption.

Particulars for payment of litigation costs shall be laid down separately.

Part Two Trial Procedure

Chapter XII Ordinary Procedure of First Instance

Section 1 Bringing a Lawsuit and Entertaining a Case

Article 108 The following conditions must be met when a lawsuit is brought:

(1) the plaintiff must be a citizen, legal person or any other organization that has a direct interest in the case;

(2) there must be a definite defendant;

(3)there must be specific claim or claims, facts, and cause or causes for the suit; and

(4) the suit must be within the scope of acceptance for civil actions by the people’s courts and under the jurisdiction of the people’s court where the suit is entertained.

Article 109 When a lawsuit is brought, a statement of complaint shall be submitted to the people’s court, and copies of the statement shall be provided according to the number of defendants.

If the plaintiff has genuine difficulty in presenting the statement of complaint in writing, he may state his complaint orally; the people’s court shall transcribe the complaint and inform the other party of it accordingly.

Article 110 A statement of complaint shall clearly set forth the following:

(1) the name, sex, age, ethnic status, occupation, work unit and home address of the parties to the case; if the parties are legal persons or any other organizations, their names, addresses and the names and posts of the legal representatives or the principal heads.

(2) the claim or claims of the suit, the facts and grounds on which the suit is based; and

(3) the evidence and its source, as well as the names and home addresses of the witnesses.

Article 111 The people’s court must entertain the lawsuits filed in conformity with the provisions of Article 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 judgment or order 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 divorce, or in which both parties have become reconciled after conciliation, or in a case concerning adoptive relationship in which a judgment has been made or conciliation has been successfully conducted to maintain the adoptive relationship, if the plaintiff files a suit again within six months in the absence of any new developments or new reasons, it shall not be entertained.

Article 112 When a people’s court receives a statement of complaint or an oral complaint and finds after examination that it meets the requirements for acceptance, the court shall place the case on the docket within seven days and notify the parties concerned; if it does not meet the requirements for acceptance, the court shall make an order within seven days to reject it. The plaintiff, if not satisfied with the order, may file an appeal.

Section 2 Preparations for Trial

Article 113 The people’s court shall send a copy of the statement of complaint to the defendant within five days after docketing the case, and the defendant shall file a defence within 15 days from receipt of the copy of the statement of complaint.

When the defendant files a defence, the people’s court shall send a copy of it to the plaintiff within five days from its receipt. Failure by the defendant to file a defence shall not prevent the case from being tried by the people’s court.

Article 114 The people’s court shall, with respect to cases whose acceptance has been decided, inform the parties in the notification of acceptance and in the notification calling for response to the action of their relevant litigation rights and obligations of which the parties may likewise be informed orally.

Article 115 The parties shall be notified within three days after the members of the collegial panel are determined.

Article 116 The judicial officers must carefully examine and verify the case materials and carry out investigations and collection of necessary evidence.

Article 117 The personnel sent by a people’s court to conduct investigations shall produce their credentials before the person to be investigated.

The written record of an investigation shall be checked by the person investigated and then signed or sealed by both the investigator and the investigated.

Article 118 A people’s court may, when necessary, entrust a people’s court in another locality with the investigations.

The entrusting people’s court shall clearly set out the matters for and requirements of the entrusted investigations. The entrusted people’s court may on its own initiative conduct supplementary investigations.

The entrusted people’s court shall complete the investigations within 30 days after receiving the commission in writing. If for some reason it cannot complete the investigations, the said people’s court shall notify the entrusting people’s court in writing within the above-mentioned time limit.

Article 119 If a party who must participate in a joint action fails to participate in the proceedings, the people’s court shall notify him to participate.

Section 3 Trial in Court

Article 120 Civil cases shall be tried in public, except for those that involve State secrets or personal privacy or are to be tried otherwise as provided by the law.

A divorce case or a case involving trade secrets may not be heard in public if a party so requests.

Article 121 For civil cases, the people’s court shall, whenever necessary, go on circuit to hold trials on the spot.

Article 122 For civil cases, the people’s court shall notify the parties and other participants in the proceedings three days before the opening of a court session. If a case is to be tried in public, the names of the parties, the cause of action and the time and location of the court session shall be announced publicly.

Article 123 Before a court session is called to order, the court clerk shall ascertain whether or not the parties and other participants in the proceedings are present and announce the rules of order of the court.

At the beginning of a court session, the presiding judge shall check the parties present, announce the cause of action and the names of the judicial officers and court clerks, inform the parties of their relevant litigation rights and obligations and ask the parties whether or not they wish to apply for the withdrawal of any court personnel.

Article 124 Court investigation shall be conducted in the following order:

(1) statements by the parties;

(2) informing the witnesses of their rights and obligations, giving testimony by the witnesses and reading of the written statements of absentee witnesses;

(3) presentation of documentary evidence, material evidence and audio-visual material;

(4) reading of expert conclusions; and

(5) reading of records of inspection.

Article 125 The parties may present new evidence during a court session.

With the permission of the court, the parties may put questions to witnesses, expert witnesses and inspectors.

Any request by the parties concerned for a new investigation, expert evaluation or inspection shall be subject to the approval of the people’s court.

Article 126 Additional claims by the plaintiff, counterclaims by the defendant and third-party claims related to the case may be tried in combination.

Article 127 Court debate shall be conducted in the following order:

(1) oral statements by the plaintiff and his agents ad litem;

(2) defence by the defendant and his agents ad litem;

(3) oral statement or defence by the third party and his agents ad litem;

(4) debate between the two sides.

At the end of the court debate, the presiding judge shall ask each side, first the plaintiff, then the defendant, and then the third party, for their final opinion respectively.

Article 128 At the end of the court debate, a judgment shall be made according to the law. Where conciliation is possible prior to the rendering of a judgment, conciliation efforts may be made; if conciliation proves to be unsuccessful, a judgment shall be made without delay.

Article 129 If a plaintiff, having been served with a summons, refuses to appear in court without justified reasons, or if he withdraws during a court session without the permission of the court, the case may be considered as withdrawn by him; if the defendant files a counterclaim in the mean time, the court may make a judgment by default.

Article 130 If a defendant, having been served with a summons, refuses to appear in court without justified reasons, or if he withdraws during a court session without the permission of the court, the court may make a judgment by default.

Article 131 If a plaintiff applies for withdrawal of the case before the judgment is pronounced, the people’s court shall decide whether to approve or disapprove it.

If withdrawal of the case is not allowed by an order of the people’s court, and the plaintiff, having been served with a summons, refuses to appear in court without justified reasons, the people’s court may make a judgment by default.

Article 132 Under any of the following circumstances, the trial may be adjourned:

(1) the parties concerned and other participants in the proceedings required to appear in court fail to do so for justified reasons;

(2) any party concerned makes an extempore application for the withdrawal of a judicial officer; or

(3) it is necessary to summon new witnesses to court, collect new evidence, make a new expert evaluation, new inspection, or to make a supplementary investigation; or

(4) other circumstances that warrant the adjournment.

Article 133 The court clerk shall make a written record of the entire court proceedings, which shall be signed by him and the judicial officers.

The court record shall be read out in court, or else the parties and other participants in the proceedings may be notified to read the record while in court or within five days. If they consider that there are omissions or errors in the record of their own statements, the parties or other participants in the proceedings shall have the right to apply for rectifications. If such rectifications are not made, the application shall be placed on record in the case file.

The court record shall be signed or sealed by the parties and other participants in the proceedings. Refusal to do so shall be put on record in the case file.

Article 134 The people’s court shall publicly pronounce its judgment in all cases, whether publicly tried or not.

If a judgment is pronounced in court, the written judgment shall be issued and delivered within ten days; if a judgment is pronounced later on a fixed date, the written judgment shall be issued and given immediately after the pronouncement.

Upon pronouncement of a judgment, the parties concerned must be informed of their right to file an appeal, the time limit for appeal and the court to which they may appeal.

Upon pronouncement of a divorce judgement, the parties concerned must be informed not to remarry before the judgment takes legal effect.

Article 135 A people’s court trying a case in which the ordinary procedure is followed, shall conclude the case within six months after docketing the case. Where an extension of the period is necessary under special circumstances, a six-month extension may be allowed subject to the approval of the president of the court. Further extension, if needed, shall be reported to the people’s court at a higher level for approval.

Section 4 Suspension and Termination of Legal Proceedings

Article 136 Legal Proceedings shall be suspended in any of the following circumstances:

(1) one of the parties dies and it is necessary to wait for the heir or heiress to make clear whether to participate or not in the proceedings;

(2) one of the parties has lost the capacity to engage in litigation and his agent ad litem has not been designated yet;

(3) the legal person or any other organization as one of the parties has dissolved, and the successor to its rights and obligations has not been determined yet;

(4) one of the parties is unable to participate in the proceedings for reasons of force majeure;

(5) the adjudication of the case pending is dependent on the results of the trial of another case that has not yet been concluded; or

(6) other circumstances that warrant the suspension of the litigation.

The proceedings shall resume after the causes of the suspension have been eliminated.

Article 137 Legal proceedings shall be terminated in any of the following circumstances:

(1) the plaintiff dies without a successor, or the successor waives the right to litigate;

(2) the decedent leaves no estate, nor any one to succeed to his obligations;

(3) one of the parties in a divorce case dies; or

(4) one of the parties dies who is a claimant to alimony, support for elders or children or to the termination of adoptive relationship.

Section 5 Judgment and Order

Article 138 A judgment shall clearly set forth the following:

(1) cause of action, the claims, facts and cause or causes of the dispute;

(2) the facts and causes as found in the judgment and the basis of application of the law;

(3) the outcome of adjudication and the costs to be borne; and

(4) the time limit for filing an appeal and the appellate court with which the appeal may be filed.

The judgment shall be signed by the judicial officers and the court clerk, with the seal of the people’s court affixed to it.

Article 139 If some of the facts in a case being tried by the people’s court are already evident, the court may pass judgment on that part of the case first.

Article 140 An order in writing is to be made in any of the following conditions:

(1)refusal to entertain a case;

(2)objection to the jurisdiction of a court;

(3)rejection of a complaint;

(4)property preservation and advance execution;

(5) approval or disapproval of withdrawal of a suit;

(6) suspension or termination of legal proceedings;

(7) correction of errata in the judgment;

(8) suspension or termination of execution;

(9) refusal to enforce an arbitration award;

(10)refusal to enforce a document of a notary office evidencing the rights of a creditor and entitling him to its compulsory execution;

(11) other matters to be decided in the form of an order in writing.

An appeal may be lodged against an order in writing in Item(1), (2) and (3) mentioned above.

An order in writing shall be signed by the judicial officers and the court clerk, with the seal of the people’s court affixed to it. If it is issued orally, the order shall be entered in the record.

Article 141 All judgments and written orders of the Supreme People’s Court, as well as judgments and written orders that may not be appealed against according to the law or that have not been appealed against within the prescribed time limit, shall be legally effective.


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