On 31 August the Amendment of the Civil Procedure Law (CPL), adopted at the 28th session of the Standing Committee of the 11th National People’s Congress, was promulgated and is to come into force from 1 January next year.
Concerning 60 amendments, the latest modifications to the CPL are the fruit of extensive academic research, but they also summarise the judicial experience, as well as other Chinese nuances, with regard to dispute solution, with the aim of making some worthwhile changes.
Generally, the improvements brought about by the amendment can be discussed in three dimensions – fairness, operability and the ability to systematise.
An outstanding feature of the amendment is the strengthened fairness. First, the “good faith” principle has been introduced into the CPL (article 13, item I). Second, the delegation of jurisdiction authority has been further limited, so that the parties’ procedural trial level rights can be protected.
Third, withdrawal rules have been improved and the supervision of judicial personnel has been consolidated. Fourth, legal actions of bad faith have been opposed to procedurally protect persons with real rights, or persons susceptible to unfavourable judgments.
The Supreme People’s Court noted that various bad faith litigations had emerged in the areas of intellectual property, labour and property rights, etc.
The amendment is composed of a series of rules to guard against malicious actions and ensure the fairness of the procedure (article 56, item III, article 112, article 113 and article 170). Fifth, the reasoning of judgments has been further clarified. Sixth, the right to know of the public has been embodied, i.e. the public right to look over legally effective written judgments or orders.
Excellence can also be seen in its operability, which should be heightened by a series of changes to specific rules. These changes are based on summaries of former procedural experiences, accommodations with new laws or lately revised laws, and new attempts to solve some old problems.
Summaries. Two examples are the rules of agreement jurisdiction (article 34) and tacit jurisdiction (article 127), which were formerly applied in international lawsuits, yet were equally effective in internal actions, then raised as universal rules. Another example that can be given relates to the rules of evidence.
Judicial experiences have been heavily considered; new evidence types have been specified; procedures involving court authorities on investigation and the taking of evidence are more clear and reinforced; the rules of confrontation and of evidence effectiveness have been specified; and the operability of evidence preservation has been augmented.
Accommodations. The amendment enables the CPL to clarify the jurisdiction of new litigation of shareholder qualification, distribution and dissolution, based on the 2005 revised Company Law, and provides the subjects of lawsuits based on new laws like the Tort Law.
Breakthrough. Not only is an agreement on summary procedure stipulated in the amendment, but also some civil cases through the first instance can be final (article 162). Two types of cases fall into the domain of special procedure, i.e. cases of confirmation of conciliation agreement and cases of realisation of real rights of pledge.
Ability to systematise
The amendment seeks a higher level of co-ordination with other laws and a better understanding of, and greater integration with, the civil procedure system.
Co-ordination with other laws. Courts where a company resides should have the jurisdiction over cases concerning disputes of the establishment of a company, qualification of the shareholders, distribution of interest and dissolution of a company according to the revised Company Law.
The law now specifies what can be counted as breaches in areas such as environmental pollution, infringements of consumers rights, and other cases involving public interest stipulated in the Tort Law. Relevant authorities and organisations can then pursue these breaches through the courts.
Pursuant to the People’s Mediation Law, the previous conciliation system is modified and a special procedure of judicial confirmation of validity of a conciliation agreement is established; in accordance with the Law of Real Rights, a special procedure of realisation of real rights of pledge emerges.
Understanding of civil procedure system. Conciliation statements are included in rules related to legally effective written judgments or orders (articles 56, 87, 124, 198, 202, 206, 212 and 208). Rules embracing conciliation statements in the procedures of service, retrial and counterappeal are more logical, as the conciliation statements are also legally effective written documents that are enforceable, and can engender a substantial impact on the parties.
The vague notion “will” in article 62 of the Chinese version of the CPL has been changed into “intention”, a more precise concept expressed both in civil law and civil procedure law.
Li Tao is a senior consultant at Dacheng Law Offices in Beijing. She can be contacted on +86 10 5813 7799 or by email at [email protected]
Paul Liang is a lawyer at Dacheng Law Offices in Beijing. He can be contacted on +86 10 5813 7344 or by email at [email protected]