Overview
The People’s Courts of China are the judicial organs of the State.The task of the People’s Courts is to try criminal,civil,economic,administrative,maritime and other cases prescribed by law.Through judicial activities,the courts punish all criminals and settle all kinds of civil and other disputes so as to defend the people’s democratic dictatorship,safeguard the socialist legal system,protect socialist property owned by all the people,collective property owned by the working people and the legitimate private property of the citizens,the citizens’ right of the person and their democratic and other rights,and ensure the smooth progress of reform,opening to the outside world,and socialist economic development.Through their activities the People’s Courts educate citizens to be loyal to their socialist motherland and to voluntarily observe the Constitution and the law.
According to the Law on the Organization of People’s Courts,China has three types of courts: (1) local People’s Courts at various levels; (2) special courts,such as maritime courts and military courts (3) the Supreme People’s Court.Local People’s Courts are further divided into: the basic People’s Courts,intermediate People’s Courts and higher People’s Courts.At the apex of this hierarchy stands Supreme People’s Court in Beijing.
By March 2017,the Supreme People’s Court has established six Circuit Courts in Shenzhen,Shenyang,Nanjing,Zhengzhou,Chongqing and Xi’an respectively.These Circuit Courts have the same level of jurisdiction of the SPC,i.e.cases decided by the Circuit Courts are deemed as finally decided by the SPC itself.The establishment of the Circuit Courts of the SPC outside Beijing,the seat of the national government,is an effort made by the Chinese central authority to avoid local influences.
Under the Law on the Organization of People’s Courts,judicial proceedings occur in two instances,namely,trial and appeal.A decision made by an appellate court is final,and no appeal there from is allowed.That is to say,the courts have to try cases on two levels,with the second instance being the final judgment.This means a case is closed after going through two levels of trial.
However,after the second trial,though parties concerned do not have the statutory rights to appeal again,a judicial supervision or retrial procedure is still available to address grievances.[1]In this respect,it is possible for the case to be tried again before a court.Scholars,therefore,argue that it is not accurate to say that the second trial is the final trial in China.In the author’s view,both views are correct as they perceive the finality of the trial from different angles.Those who argue that the second trial is final rely strictly on statutory provision.Moreover,any retrial through judicial supervision procedure is not a statutory right of the parties concerned.Rather,it depends on whether the People’s Court itself or that at a higher level,or People’s Procuratorate at higher level decides to initiate the judicial supervision procedure.[2]
What should be mentioned here is that though the judicial supervision procedure itself is not problematic,it has been resorted to by many foreign states as a reason for declining to recognize and enforce the judgments rendered by Chinese People’s Courts.They argue that the judicial supervision procedure makes all decisions by Chinese courts potentially unbinding while the judgment being binding is one of the widely accepted pre-conditions for a judgment to be recognized and enforced.Therefore,the existence of judicial supervision procedure becomes one of the major reasons for foreign courts to refuse to recognize the judgments by People’s Courts of China.
In the author’s opinion,the underlying reason for foreign states to refuse to recognize and enforce the judgments rendered by Chinese People’s Courts is far more complex,and the deep-rooted distrust of Chinese political and legal system,inter alia,is a more relevant consideration.However,given the vital importance of maintaining sound relationship with Chinese authority,foreign states are normally reluctant to rely on these sensitive grounds,judicial supervision procedure,therefore,becomes a prima facie justification for refusing to recognize and enforce the judgments rendered by Chinese people’s Courts.(https://www.daowen.com)
Typically,the proceedings of the first instance begin in the basic courts,which exercise general trial competence.[3]Nonetheless,under the Civil Procedure Law,a higher court,including an intermediate court,higher court,or the Supreme People’s Court,may hear a case in the first instance if the case has a potential significant impact in the areas of their respective jurisdiction.[4]International civil litigation in particular normally begins at the intermediate level,though it may commence at the trial level.This is because most,if not all,cases involving foreign elements are regarded as major cases having significant impacts.Therefore,the trial of such cases in the first instance often rests with the competent intermediate court.2 However,as the number of cases involving foreign elements is increasing significantly,in big cities of Eastern China,such as Beijing and Shanghai,more and more such cases are handled by basic courts.
Within the People’s Courts at the intermediate or higher level,there are special divisions,such as the foreign civil division,that deal with international civil litigation.3 When hearing a case in accordance with the Civil Procedure Law,the People’s Courts shall form either a collegial panel consisting of an odd number of both judges and judicial assessors (jurors) or judges alone,[5]except for hearings under summary procedures in which a single judge presides.[6]During a trial involving foreign elements,the foreign party may represent itself,be represented by a foreign agent ad litem,or a foreign lawyer present at the trial as a non-lawyer subject to Article 58 of the Civil Procedure Law.The Civil Procedure Law requires that if a foreigner,stateless person,foreign enterprise,or organization needs a lawyer when litigating in a People’s Court,the lawyer must be Chinese.4
International civil litigation is known in China as the “civil case involving foreign elements.” In general,a civil case involving foreign elements refers to a civil action in which: (1) either party or both parties are foreigners,stateless persons,foreign enterprises or organizations; (2) the habitual residence of either party or both parties is located outside the territory of the PRC; (3) the juristic facts creating,changing,or terminating the civil legal relations between parties occur outside the territory of the PRC; (4) the subject matter of the dispute is located outside the territory of the PRC; (5) any other circumstance under which a case may be determined as a foreign-related civil case.[7]
At present,there is no single law or regulation that specifically governs international civil litigation in China.The major piece of legislation governing international civil litigation is Part Four of the Civil Procedure Law of the People’s Republic of China (hereinafter referred to as the CPL) which is entitled “Special Provisions of Civil Procedures for Cases Involving Foreign Elements.” Promulgated on April 9,1991,latest revised on June 27,2017,the CPL is the major law for the People’s Courts to follow in the process of the adjudication of civil cases.
In addition,on December 8,2014,the Supreme People’s Court issued the “Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law” (hereinafter referred to as Interpretation on CPL).Effective as of February 4,2015,the Interpretation on CPL provides important judicial guidance for all lower People’s Courts to follow.
During the past four decades,the Chinese People’s Courts have taken greater number of cases involving foreign elements,and this trend certainly will continue.This increase is basically attributed to China’s fast-growing economy which has dramatically enhanced China’s presence in the world market and thus significantly generated more transnational business transactions and foreign investment.5 As a result,the number of civil disputes has inevitably increased at an amazing rate.