New Amendments to PRC Civil Procedure Law
It can be seen from this new Amendments of the Civil Procedure which has come into force on Jan. 1, 2013 that its intention is to modernise the civil litigation regime and improve the dispute resolution landscape in China. It is aimed at enhancing the efficiency and transparency of the civil procedure as well as at increasing the parties’ autonomy in civil cases.
1. What is the Special procedure stipulated in the new amendments?
A: There are Summary and Special procedures in this new amendment.
The new Civil procedure now enables the parties to adopt the summary procedure by way of agreement without the need of satisfying the conventional criteria i.e. that the case is a simple civil case and the rights and obligations are clear and the disputes are trivial in character etc. This effectively enables parties to adopt the summary procedure to resolve their dispute in a quicker and cheaper way if the parties agree to do so. Under the said summary procedure mechanism the court is to deliver judgment within 3 months.
The new Amendments also provide in cases where the amount in dispute is less than 30 percent of the annual average salary of employees in the relevant province, autonomous region or municipality the judgment delivered shall be final and not subject to appeal provided those cases satisfy the conventional criteria applicable to summary procedure. So in this procedure, the trial to a case will only go through one instance not two. It’s a big change compared with the old civil procedure law.
2. What is about the regulation regarding to the limits for agent in civil cases?
A: According to the new amendment, agents in a civil case can only be acted by 1) Attorneys or special judicial servants; 2) Close relatives of the clients or employees of the clients; 3) peoples recommended by basic social organization where the clients live in. This new stipulation excludes ordinary persons act as the agents in civil cases.
3. Are there any new regulations to Judgments and Orders?
A: The new Amendments provide that in a judgment or order made by a court the court needs to set out clearly (i) the result of its decision as well as (ii) the reasons for coming to that decision, and the logical deduction for coming to that decision.
It further provides that all legally effective judgments and orders shall be available for public
inspection apart from those that concern state secrets, business secrets and privacy.
4. Any changes to Retrial Application Procedure?
A: There is a big change to the time limitation of retrial application. In old Civil Procedure Law, this time limitation was 2 years since the judgment of second instance. According to the new Amendments, this time limitation is 6 months.
It also stipulated that if a party is not satisfied with the judgment of order, it can submit the retrial application to the court of higher level, or to the same court which renders the judgment or order.
5. Are there any big changes in evidence issue?
A: One big change to evidence collection is the new amendments enable the witness to testify by way of audio visual transmission, audio visual recording or any other means as permitted by the court, if he or she cannot appear on court hearing.
Another big change is the “expert opinion”. The new amendments further provide that a party can apply to the court for permission to call an expert witness to give evidence on certain technical or specialised issues. And the challenging party may call their own expert to give evidence on the same issues and for the court to decide by considering the expert opinion given by both parties as a basis for ascertaining the facts on such issues.
6. Any new regulations to Interim measures?
A: There are something new in the amendments.
(1) Mandatory and prohibitory injunctions
The new Civil Procedure Law now provides that a party may apply to court at an interim stage for an order to freeze the assets of another party or an order requiring another party to perform or be prohibited from performing certain acts etc pending trial. The order requiring another party to perform or be prohibited from performing certain acts is a new stipulation in the new Civil Procedure.
(2) Pre-litigation and pre-arbitration
New Civil procedure also provides that a party may apply to the court for property as well as evidence preservation before the commencement of the legal or arbitration proceedings. It is again worth noting that the said rights to make application before commencement of arbitration were not available before.
There is this requirement, however, that the applicant for the above interim measures shall institute civil proceedings or apply for arbitration within 30 days after the court takes the preservation measures, otherwise the said measures would be automatically rescinded.