China: Insight into China’s Revision on Civil Procedure Law

Last Updated: 21 October 2012
Article by Ariel Ye

Introduction

On 31 August 2012 a revision of the PRC Civil Procedure Law (the "CPL") was adopted and is scheduled to take effect on 1 January 2013. This is the third revision of the CPL to be adopted and affects 85 articles, which cover a wide range of matters including case filing, evidence and enforcement procedure. Several new procedures have also been added which cover public interest litigation, small claims litigation, mediation agreements and other topics.

Background and Policy Objectives

The National People's Congress Committee on Law commenced revision of the CPL in 2010. The current revision of the CPL aims to address concerns raised by the legal profession about court efficiency, the rights of litigants, clarity of the rules of evidence and adjudication supervision in civil proceedings.

The key policy objectives of the amendments are to: (a) providing justice while guaranteeing efficiency, and in particular avoiding prolonged civil procedure and "late justice"; (b) insuring the efficient use of judicial resources while upholding the parties' litigation rights; and (c) reinforcing the courts' independence on the one hand while strengthening the process of adjudication supervision by the procuratorate.

Improving efficiency of civil procedure

  1. Pre-filing mediation. Article 122 of the CPL requires the parties to first attempt mediation before filing a claim. In practice, this means that courts will now take steps to facilitate pre-filing mediation. Such mediation is subject to the consent of the parties, so by facilitating mediation, the court will not be interfering with the parties' right to commence litigation.
  2. Judicial confirmation on mediation agreement. Article 194 of the CPL permits parties to apply for judicial confirmation of a mediation agreement within 30 days of the agreement taking effect and Article 195 of the CPL provides that a court-confirmed mediation agreement is enforceable.
  3. Small-claims litigation. Article 162 of the revised law establishes that in a simple civil trial (as defined in paragraph 1 of article 157 of the revised law) if the amount claimed is below thirty percent of the average annual salary of urban employees the ruling at the first instance shall be final. This is designed to increase the efficiency of the court's handling of small claims and to free court resources.
  4. Expanding the coverage of summary procedure. Article 157 of the CPL allows disputing parties to choose summary procedure by mutual consent in cases tried by basic-level court, unless the court considers it inappropriate. Previously the court alone could determine whether summary procedure should apply.

Strengthening litigants' rights

  1. Public interests litigation. Article 55 of the CPL provides that: "relevant organs and organizations prescribed by law may initiate lawsuit at competent courts against conducts jeopardizing the public interests, such as causing environment pollution or damaging the interests of a large number of consumers." This is the first time that Chinese law has recognized public interest litigation. The article creates only two causes of action. The parties eligible to commence public interest litigation are also limited to those organs and organizations prescribed by law, which excludes natural persons.
  2. Possible appeal against the court's decision not to accept the filing of a lawsuit. According to Article 123 of the CPL, the court must now issue a written ruling within 7 days if it declines to accept the filing of a case. The ruling is subject to appeal by the party concerned. Previously, the court had no obligation to deliver a written ruling in such cases, and the party affected had difficulties to appeal without the court's written ruling even if the court's decision was unfair.
  3. Pre-litigation preservation measures. Chapter 9 of the CPL adopts pre-lawsuit injunction. Previously, pre-litigation injunctions were only available for the preservation of property. The CPL now enables the court to order specific performance or to enjoin misconduct by a party prior to the commencement of litigation.
  4. Intervention by third parties. Malicious or artificial lawsuits may damage a third party's interests from time to time. A typical example is where a debtor procures a friend to sue against his property, so as to avoid enforcement by a genuine creditor. Harmed third parties could not previously resort to cancellation of such lawsuit under the old regime. Paragraph 3 of Article 56 allows "third parties with or without an independent claim to the disputed object" to sue for cancellation of a court judgment, ruling or mediation which harms its lawful interests. This kind of suit must be brought within 6 months upon the party becoming aware of the harm, and must show proof of error in the court's decision.
  5. Public disclosure of judgment and ruling. The CPL now obliges courts to make legally effective judgments and rulings publicly available except for those involving state secrets, trade secrets or personal privacy. This is intended to improve public supervision of the court's practice as well as facilitating legal practitioners' access to jurisprudence.

Rules relating to evidence

  1. Time period for producing evidence. Article 65 of the CPL clarifies the time period for producing evidence. Previously the CPL was ambiguous about who shall determine the period for producing evidence and whether the court may accept late evidence. The lack of clarity under the old CPL was criticized because it led to inconsistent court practices and caused confusion. The CPL now explicitly provides that the time period for producing evidence shall be determined by the court according to the specific circumstances of the case. The court now has discretion to reject late evidence and the party submitting late evidence must provide justification for doing so. The court may also accept late evidence if it is significant but impose a penalty on the party submitting late evidence.
  2. Formalities applicable to the court's acceptance of evidence. Under the CPL, the court is obliged to issue a receipt when receiving evidence which must state the name, number of pages, whether the evidence is original or duplicate and the date of receipt. Such receipt must be signed by court personnel and stamped by the responsible office of the court.
  3. Witness's presence at trial. The CPL states the circumstances in which a witness may testify through written testimony or via audio or video transmission without physically attending the trial. Health, geographical distance, inconvenience of travel and natural disaster are examples of adequate reasons under the CPL. A witness may be absent from the trial only with the court's permission. The CPL also clearly requires the losing party to bear all of a witness's expenses for attending the trial. These rules encourage witnesses to testify in person and are aimed at reinforcing the court's ability to execute its fact-finding mission.
  4. Rights to initiate authentication. Under the old CPL only the court may decide to use expert authentication. The CPL now allows the parties to apply for and jointly appoint qualified experts to carry out the authentication. In addition, pursuant to Article 78, the expert must appear in court and testify if the court considers his testimony necessary or if the other party questions his authentication. Under such circumstances, the expert's authentication will be rejected if he fails to present at trial.

Strengthening adjudication supervision

  1. Expanding the scope of supervision. The old CPL was silent on whether the procuratorate may supervise the court's enforcement and mediation. The CPL now provides that the procuratorate has the authority to supervise the court's civil enforcement. In the meantime, the procuratorate may also lodge an objection against the court's mediation of a case if it damages the national or public interests.
  2. Expanding supervision mechanism. The new CPL also provides that a procuratorate may, if it discovers that any effective judgment, ruling or mediation statement of the court is false, recommend a court at the same level to retry a case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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