Procedure for Trial Supervision:Civil Procedure Law China

MAIN INDEX

Chapter XVI

Procedure for Trial Supervision

Article 177 If the president of a people’s court at any level finds definite error in a legally effective judgment or written order of his court and deems it necessary to have the case retried, he shall refer it to the judicial committee for discussion and decision.

If the Supreme People’s Court finds definite error in a legally effective judgment or written order of a local people’s court at any level, or if a people’s court at a higher level finds some definite error in a legally effective judgment or written order of a people’s court at a lower level, it shall respectively have the power to bring the case up for trial by itself or direct the people’s court at a lower level to conduct a retrial.

Article 178 If a party to an action considers that there is error in a legally effective judgment or written order, he may apply to the people’s court which originally tried the case or to a people’s court at the next higher level for a retrial; however, execution of the judgment or order shall not be suspended.

Article 179 If an application made by a party meets any of the following conditions, the people’s court shall retry the case:

(1) there is sufficient new evidence to set aside the original judgment or written order;

(2) the main evidence on which the facts were ascertained in the original judgment or written order was insufficient;

(3) there was definite error in the application of the law in the original judgment or written order;

(4) there was violation by the people’s court of the legal procedure which may have affected the correctness of the judgment or written order in the case; or

(5) the judicial officers have committed embezzlement, accepted bribes, done malpractices for personal benefits and perverted the law in the adjudication of the case.

The people’s court shall reject the application that meets none of the conditions specified above.

Article 180 With respect to a legally effective conciliation statement, if evidence furnished by a party proves that the conciliation violates the principle of voluntariness or that the content of the conciliation agreement violates the law, the party may apply for a retrial. If the foregoing proves true after its examination, the people’s court shall retry the case.

Article 181 With respect to a legally effective judgement on dissolution of marriage, neither of the two parties shall apply for retrial.

Article 182 Application for a retrial made by a party must be submitted within two years after the judgment or written order becomes legally effective.

Article 183 When a decision is made to retry a case in accordance with the procedure for trial supervision, the execution of the original judgment shall be suspended by a written order which shall be signed by the president of the court with the seal of the people’s court affixed to it.

Article 184 With respect to a case pending retrial by a people’s court in accordance with the procedure for trial supervision, if the legally effective judgment or written order was made by a court of first instance, the case shall be tried in accordance with the procedure of first instance, and the parties concerned may appeal against the new judgment or order; if the legally effective judgment or written order was made by a court of second instance, the case shall be tried in accordance with the procedure of second instance, and the new judgment or written order shall be legally effective; if it is a case which was brought up for trial by a people’s court at a higher level, it shall be tried in accordance with the procedure of second instance, and the new judgment or written order shall be legally effective.

The people’s court shall form a new collegial panel for the purpose of the retrial.

Article 185 If the Supreme People’s Procuratorate finds that a legally effective judgment or written order made by a people’s court at any level involves any of the following circumstances, or if a people’s procuratorate at a higher level finds that a legally effective judgment or written order made by a people’s court at a lower level involves any of the following circumstances, the Supreme People’s Procuratorate or the people’s procuratorate at a higher level shall respectively lodge a protest in accordance with the procedure for trial supervision:

(1)the main evidence for ascertaining the facts in the previous judgment or written order was insufficient;

(2) there was definite error in the application of the law in the previous judgment or written order ;

(3) there was violation by the people’s court of the legal procedure which may have affected the correctness of the judgment or written order; or

(4) the judicial officers have committed embezzlement, accepted bribes, done malpractice for personal benefits and perverted the law in the trial of the case.

If a local people’s procuratorate at any level finds that a legally effective judgment or written order made by a people’s court at the corresponging level involves any of the circumstances specified above, it shall refer the matter to the people’s procuratorate at a higher level with the request that a protest be lodged by the latter in accordance with the procedure for trial supervision.

Article 186 Cases in which protest was made by the people’s procuratorate shall be retried by the people’s court.

Article 187 When a people’s procuratorate decides to lodge a protest against a judgment or written order made by a people’s court, it shall make the protest in writing.

Article 188 The people’s court shall, in retrying a case in which protest was lodged by a people’s procuratorate, notify the procuratorate to send representative to attend the court session.

Chapter XVII Procedure for Hastening Debt Recovery

Article 189 When a creditor requests payment of a pecuniary debt or recovery of negotiable instruments from a debtor, he may, if the following requirements are met, apply to the basic people’s court that has jurisdiction for an order of payment:

(1) no other debt disputes exist between the creditor and the debtor; and

(2) the order of payment can be served on the debtor.

The application shall clearly state the requested amount of money or of the negotiable instruments and the facts and evidence on the basis of which the application is made.

Article 190 After the creditor has submitted his application, the people’s court shall within five days inform the creditor whether it accepts the application or not.

Article 191 After accepting the application and upon examination of the facts and evidence provided by the creditor, the people’s court shall, if the rights and obligations relationship between the creditor and the debtor is clear and legitimate, issue within 15 days after accepting the application, an order of payment to the debtor; if the application is unfounded, the people’s court shall make an order to reject it.

The debtor shall, within 15 days after receipt of the order of payment, clear off his debts or submit to the people’s court his dissent in writing.

If the debtor has neither dissented from nor complied with the order of payment within the period specified in the preceding paragraph, the creditor may apply to the people’s court for execution.

Article 192 The people’s court shall, on receiving the dissent in writing submitted by the debtor, make an order to terminate the procedure for hastening debt recovery and the order of payment shall of itself be invalidated. The creditor may bring an action in the people’s court.

Chapter XVIII Procedure for Publicizing Public Notice for Assertion of Claims

Article 193 Any holder of a bill transferable by endorsement according to the law may, if the bill is stolen, lost, or destroyed, apply to the basic people’s court of the place where the bill is to be paid for publication of public notice for assertion of claims. The provisions of this Chapter shall apply to other matters for which, according to the law, an application for publication of a public notice for assertion of claims may be made.

The applicant shall submit to the people’s court an application which clearly states the main contents of the bill such as the face amount, the drawer, the holder, the endorser, and the facts and reasons in respect of the application.

Article 194 The people’s court shall, upon deciding to accept the application , notify the payer concerned in the meantime to suspend the payment, and shall, within 3 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 payer 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 public notice for assertion of claims.

Within the period of the public notice, assignment of rights on the bill shall be void.

Article 196 Interested party or parties as claimants shall report their claims to the people’s court within the period of the public notice.

After receiving the report on the claims by interested party or parties, the people’s court shall make a written order to terminate the procedure for publicizing public notice for assertion of claims, and notify the applicant and the payer.

The applicant or the claimants may bring an action in the people’s court.

Article 197 If no claim is asserted, the people’s court shall make a judgment on the basis of the application to declare the bill in question null and void. The judgment shall be published and the payer notified accordingly. As of the date of publication of the judgment, the applicant shall be entitled to payment by the payer.

Article 198 If an interested party for justified reasons was unable to submit his claim to the people’s court before the judgment is made, he may, within one year after the day he knows or should know the publication of the judgment, bring an action in the people’s court which has made the judgment.

Chapter XIX Procedure for Bankruptcy and Debt Repayment of Legal Person Enterprises

Article 199 If a legal person enterprise has suffered serious losses and is unable to repay the debts at maturity, the creditors may apply to a people’s court for declaring the debtor bankrupt for debts to be repaid; the debtor may likewise apply to a people’s court for declaring bankruptcy for debts to be repaid.

Article 200 After making an order to declare the initiation of the bankruptcy and debt repayment proceedings, the people’s court shall notify the debtor and the known creditors within ten days and also make a public announcement.

Creditors who have been notified shall, within 30 days after receiving the notice, and those who have not been notified shall, within three months after the date of the announcement, lodge their claims with the people’s court. Creditors who fail to lodge their claims during the respective periods shall be deemed to have abandoned their rights.

Creditors may organize a creditors’ meeting to discuss and approve of a formula for the disposition and distribution of bankrupt property, or for a composition agreement.

Article 201 The people’s court may appoint a liquidation commission formed by relevant state organs and persons concerned. The liquidation commission shall take charge of the custody of the bankrupt property, its liquidation, assessment, disposition and distribution. The liquidation commission may also engage in necessary activities of a civil nature according to the law.

The liquidation commission shall be responsible and report its work to the people’s court.

Article 202 If the legal person enterprise and the creditors reach a composition agreement, the people’s court shall, after approving the agreement, make a public announcement of it and terminate the bankruptcy and debt repayment proceedings. The composition agreement shall be legally effective as of the date of the public announcement.

Article 203 With respect to the property mortgaged or otherwise used as security for bank loans or other obligations, the bank and other creditors shall have priority in the repayment of debts as regards the property mortgaged or used as security for other kinds of obligations. If the money value of the property mortgaged or used as security for other kinds of obligations exceeds the amount of loans secured, the surplus shall go to the bankrupt property for debt repayment.

Article 204 After deduction of bankruptcy proceedings expenses from the bankrupt property, first repayment shall be made in the following order of priority:

(1) wages and salaries of staff and workers and labour insurance expenses that are owed 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 where the legal person enterprise is located.

Article 206 The provisions of the Law of the People’s Republic of China on Enterprise Bankruptcy shall apply to bankruptcy and debt repayment of enterprises owned by the whole people.

The provisions of this Chapter shall not apply to non-legal person enterprises, individual businesses, leaseholding farm households and partnerships by private individuals.