Notes to Chapter Two
1.Los Angeles County,Super.Ct.No.BC342017 c/w BC338418,BC362009,BC343313.
2.Mo Zhang,International Civil Litigation in China: A Practical Analysis of the Chinese Judicial System,25 B.C.INT’L & COMP.L.REV.61 (2002).
3.Zhonghua Renmin Gongheguo Renminfayuan Zuzhifa [Law on Organization of People’s Courts] art.23 (PRC).
4.Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art.263 (1991,revised in 2017) (PRC).
5.See Mo Zhang,International Civil Litigation in China: A Practical Analysis of the Chinese Judicial System,25 B.C.INT’L & COMP.L.REV.,62 (2002).
6.See Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] arts.17-38 (1991,revised in 2017) (PRC).
7.Mo Zhang,International Civil Litigation in China: A Practical Analysis of the Chinese Judicial System,25 B.C.Int’l & Comp.L.Rev.66 (2002).
8.See Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] arts.17-20 (1991,revised in 2017) (PRC).
9.Zuigao Renmin Fayuan Guanyu Mingque Diyishen Shewai Minshangshi Anjian Jibie Guanxia Biaozhun yiji Guikou Guanxia Banli Youguan Wenti De Tongzhi (Fa (2007) 359 Hao) [Notification of the Supreme People’s Court on Clarifying the Standards of Tier Jurisdiction over First Instance Foreign-related Civil and Commercial Cases (SPC Order No.359 of 2017)] (adopted by the Sup.People’s Ct.,Dec.7,2017,effective Mar.1,2018).
10.See Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art.36 (1991,revised in 2012) (PRC).
11.See id.,at arts.36,37.
12.Mo Zhang,International Civil Litigation in China: A Practical Analysis of the Chinese Judicial System,25 B.C.INT’L & COMP.L.REV.66 (2002).
13.Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art.21 (1991,revised in 2012) (PRC).
14.Ibid.
15.Id.,at art.35.
16.WILLIAM M.RICHMAN,AND MILLIAM L.REYNOLDS,UNDERSTANDING CONFLICT OF LAWS 71 (2003).
17.RENMINDAYUAN ANLIXUAN [SELECTED CASES OF PEOPLE’S COURTS] (Supreme People’s Court ed.) 390-394 (1996) (Higher People’s Court of Jilin Province,1994).
18.GUOJISIFA ANLI XUANBIAN[SELECTED CASES OF PRIVATE INTERNATIONAL LAW] (Lin Zhun ed.) 118-120 (Shanghai Intermediate People’s Court,1985).
19.See Qingjiang Kong & Mingfei Hu,The Chinese Practice of Private International Law,3 MELBOURNE J.OF INT’L L.202 (2002).
20.Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] arts.23-32 (1991,revised in 2017) (PRC).
21.GUOJISIFA ANLI XUANBIAN[SELECTED CASES OF PRIVATE INTERNATIONAL LAW] (Lin Zhun ed.),110-112 (1996) (Shanghai Intermediate People’s Court,1985).
22.GUOJISIFA ANLI XUANBIAN[SELECTED CASES OF PRIVATE INTERNATIONAL LAW] (Lin Zhun ed.),89-92 (1996) (Higher People’s Court of Zhejiang Province,1994).
23.RENMINDAYUAN ANLIXUAN [SELECTED CASES OF PEOPLE’S COURTS] (Supreme People’s Court ed.) 1051-1054 (1996) (Guangzhou Intermediate People’s Court,Guangdong Province,1991).
24.Qingjiang Kong & Mingfei Hu,The Chinese Practice of Private International Law,3 MELBOURNE J.OF INT’L L.204 (2002).
25.Mo Zhang,International Civil Litigation in China: A Practical Analysis of the Chinese Judicial System,25 B.C.INT’L & COMP.L.REV.71 (2002).
26.Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art.28 (1991,revised in 2017) (PRC).
27.Interpretation on CPL.,art.35.
28.See Qingjiang Kong & Mingfei Hu,The Chinese Practice of Private International Law,3 MELBOURNE J.OF INT’L L.204 (2002).
29.RENMINFAYUAN ANLIXUAN [SELECTED CASES OF PEOPLE’S COURTS] (Supreme People’s Court ed.) 1711-1717 (1996) (Shanghai Maritime Court,1991).(https://www.daowen.com)
30.Qingjiang Kong & Mingfei Hu,The Chinese Practice of Private International Law,3 MELBOURNE J.OF INT’L L.205 (2002).
31.Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art.34 (1991,revised in 2017) (PRC).
32.Cf.Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art.34 (1991,revised in 2017) (PRC).
33.RENMINFAYUAN ANLIXUAN [SELECTED CASES OF PEOPLE’S COURTS] (Supreme People’s Court ed.) 2015-2019 (1996) (Higher People’s Court of Fujian Province,1994).
34.Qingjiang Kong & Mingfei Hu,The Chinese Practice of Private International Law,3 MELBOURNE J.OF INT’L L.206 (2002).
35.Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art.127 (1991,revised in 2012)(PRC).Supreme People’s Court,Selected Cases of People’s Courts (1996) 1707-1710 (Shanghai Maritime Court,1991).
36.RENMINFAYUAN ANLIXUAN [SELECTED CASES OF PEOPLE’S COURTS] (Supreme People’s Court ed.) 1707-1710 (1996) (Shanghai Maritime Court,1991).
37.Qingjiang Kong & Mingfei Hu,The Chinese Practice of Private International Law,3 MELBOURNE J.OF INT’L L.206 (2002).
38.Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] arts.125,268 (1991,revised in 2017) (PRC).
39.Id.,at art.266.
40.For a detailed discussion on CICC,see Zhengxin Huo and Yip Man,Comparing The International Commercial Courts of China with the Singapore International Commercial Court,68 INT’L AND COMP.L.Q 903-942 (2019).
41.GUOJISIFA ANLI XUANBIAN[SELECTED CASES OF PRIVATE INTERNATIONAL LAW] (Lin Zhun ed.),64-68 (1996) (Tianjin Intermediate People’s Court,1992) (“Tianjin Native Products Case”).
42.Id.at 118-120 (Shanghai Intermediate People’s Court,1985).
43.RENMINFAYUAN ANLIXUAN [SELECTED CASES OF PEOPLE’S COURTS] (Supreme People’s Court ed.) 1368-1375 (1996) (Higher People’s Court of Fujian Province,1995).
44.ZHENG SOPHIA TANG,YONGPING XIAO,ZHENGXIN HUO,CONFLICT OF LAWS IN THE PEOPLE’S COURT OF CHINA 107(2016).
45.Dongpen Trade v.HK Bank of East Asia,Higher People’s Court of Guangdong Province,(1995)Yue Fa Jing Er Jian Zi.No.3.
46.Sumitomo Bank v.Xinahua,Supreme Peoples’ Court (1999)Jing Zhong Zi No.194.
47.Andrew R.Klein,Foreign Plaintiffs,Forum Non Conveniens,and Consistency,in SELECTED ESSAYS ON CURRENT LEGAL ISSUES 195 (Athens Institute for Education and Research (2008).
【注释】
[1]The judicial supervision procedure is also known as the re-examination,or retrial system.It refers to a special arrangement for the court to reexamine judgments and rulings that have already taken effect.It actually represents a remedy to the system of second instance being final.See Lin Feng,CONSTITUTIONAL LAW IN CHINA 225-227(2000).
[2]According to the Law on the Organization of People’s Courts and the three procedural laws on civil,criminal and administrative cases,China’s judicial supervision procedure consists of the following components:
(1) The precondition for initiating the judicial supervision procedure is that judgments and rulings that have already taken effect have been found to contain errors in establishment of facts or application of laws,or new fundamental evidence is found.
(2) The judicial supervision procedure can only be initiated by presidents of courts,superior courts,superior procuratorates,the Supreme People’s Court and the Supreme People’s Procuratorate.
(3) In re-examining a case under the judicial supervision procedure,courts form a separate Collegial Panel.If the original case was a first-instance case,then it should be re-examined in accordance with first-instance procedures; rulings or judgments arising thereof are subject to appeal or protest.If the original case was a second-instance case,or was tried by higher courts,then second-instance procedures should be followed and rulings or judgments arising thereof shall be final.
With regard to civil case,the applicant must meet one of five conditions laid down in the Civil Procedure Law.First,there must be sufficient new evidence to set aside the original judgment or written order; second,the main evidence on which the facts were ascertained in the original judgment must be insufficient; third,there was definite error in the application of the law in the original judgment or written order; fourth,there was a 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; and fifth,the judicial officers have committed embezzlement,accepted bribes,found guilty or malpractice for personal benefit and perverted law in the adjudication of the case.Zhonghua Renmin Gongheguo Minshi Susongfa [Civil Procedure Law] art.200 (1991,revised in 2012) (PRC).
[3]Art.17 of Civil Procedure Law provides: “[T]he basic People’s Courts shall have jurisdiction as courts of first instance over civil cases,unless otherwise provided in this Law.”
[4]Article 18 of Civil Procedure Law:
The intermediate People’s Courts shall have jurisdiction as courts of first instance over the following civil cases:
(1) major cases involving foreign elements;
(2) cases that have major impact on the area under their jurisdiction; and
(3) cases as determined by the Supreme People’s Court to be under the jurisdiction of the intermediate People’s Courts.
Article 19
The higher People’s Courts shall have jurisdiction as courts of first instance over civil cases that have major impacts on the areas under their jurisdiction.
Article 20
The Supreme People’s Court shall have jurisdiction as the court of first instance over the following civil cases:
(1) cases that have major impact on the whole country; and
(2) cases that the Supreme People’s Court deems it should try.
[5]The post of people’s assessors is introduced from former Soviet Union.which may have some similarity with the jury system in Anglo-American states.However,in China,once a person is appointed as a people’s assessor,he enjoys the equal status of judges.That is to say,his authority is not limited to deciding the fact,he also has the authority of applying law.
[6]Under the Law on the Organization of People’s Courts,collegial panel is the basic form of trail.First-hearing criminal and civil cases are generally tried by a collegial panel except for those simple civil cases and minor criminal cases for which a sole judge is sufficient.First-hearing administrative cases,without exception,are handled by a collegial panel; second-hearing,re-examined cases and death penalty verification cases are handled by a collegial panel.And all appealed and contested cases are handled by a collegial panel of judges.
[7]As Article 522 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law provides as follows: “Under any of the following circumstances,the people’s court may determine a case as a foreign-related civil case: (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 People’s Republic of China.(3) The subject matter is outside the territory of the People’s Republic of China.(4) The legal fact that leads to the establishment,change or termination of civil relationship occurs outside the territory of the People’s Republic of China.(5) Any other circumstance under which a case may be determined as a foreign-related civil case.” Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Minshisusongfa de Jieshi[Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China],Interpretation No.5 [2015] of the Supreme People’s Court (PRC).
[8]If a case starts in an intermediate level court,a higher court will hear the appeal.If a higher court takes the case for the trial of first instance,the Supreme People’s Court will have to take the case if an appeal follows.
[9]Article 34 of the CPL provides as follows: Parties to a dispute over a contract or any other right or interest in property may,by a written agreement,choose the people’s court at the place of domicile of the defendant,at the place where the contract is performed or signed,at the place of domicile of the plaintiff,at the place where the subject matter is located or at any other place actually connected to the dispute to have jurisdiction over the dispute,but the provisions of this Law regarding tier jurisdiction and exclusive jurisdiction shall not be violated.
[10]To be clear,“place” under art.34 of CPL in an international context means “country”.