New Amendment to PRC Civil Procedure Law: An Analysis

by Sheppard Mullin Richter & Hampton LLP
Contact

[author: Ling Zhang]

On August 31, 2012, China's legislature, the National People’s Congress, approved an amendment (“Amendment”) to the PRC Civil Procedure Law (“CPL”). The Amendment presents the second time in six months that China’s top legislative body has moved to modify China’s most fundamental laws on procedural justice, following the recent amendment to the PRC Criminal Procedure Law in March.

The Amendment’s sixty articles offer extensive changes covering nearly every chapter of the CPL. The changes introduced by the Amendment primarily address: (1) improving conciliation procedures; (2) protecting civil procedural rights; (3) improving the evidentiary process; (4) improving the summary procedure process; (5) strengthening the supervisory power of the people's procuratorates (the agencies responsible for prosecution and investigation); (6) improving the trial and retrial procedural system; (7) improving the system of execution procedures by incorporating relevant judicial interpretations into the law; and (8) improving the special procedure system.

Many may be surprised as to the scale of the changes introduced by the Amendment, particularly given that the CPL was last amended as recently as 2007. There are several important reasons, however, that likely helped support the changes introduced by the Amendment.

I. Keeping Pace with the Sweeping Changes Taking Place Throughout China

The Amendment was likely introduced in order to keep pace with the sweeping changes taking place throughout China. As law is a tool that is used for mandating social control, it cannot remain static. Good laws require adjustments in order to reflect the changes taking place in any given society.

A. Digital Evidence and Simplified Service of Process. With the development of information technology, more and more people choose to engage in transactions via the internet, or use digital devices to record their data. Accordingly, where there may be a dispute, the concept of digital evidence becomes applicable to civil procedure. Article 12 of the Amendment specifically provides that digital data shall be one type of admissible evidence, which means that the logs of instant message conversations, as well as information contained in blogs or micro-blogs may be admissible.

Moreover, for the same reason, the service of process has become much more convenient. Article 18 of the Amendment provides that (i) people can take pictures to record the delivery of documents, as proper service of process, and (ii) sending select permitted litigation-related documents via fax or email can also be one way to deliver legal documents.

B. Optimizing the Conciliation System. Articles 30, 42 and 52 of the Amendment, among others, provide for an enhanced conciliation system that is better designed to encourage people to choose conciliation to settle their disputes, by (i) urging the court to identify those disputes which can be settled by conciliation before litigation, and thereafter settle such disputes by conciliation, (ii) establishing special procedures to confirm conciliation statements and make them enforceable, and (iii) establishing relief measures for concerned parties where settlements are reached by fraud.

C. Public Interest Litigation. With growing concern over disputes regarding environmental rights and consumer rights, Article 9 of the Amendment for the first time now expressly provides for public interest litigation.

D. Small Claims Procedure. In an attempt to avoid further congestion of the court system, Article 39 of the Amendment provides that small claims judgments shall be final where they do not exceed 30% of the average annual wages of the citizens of a particular province.

II. The Desire to Adopt Select Judicial interpretations

Further, the Amendment was likely introduced, in-part, in order to incorporate the experience and certain developments of China’ judiciary. The Amendment has organized and consolidated select principles derived from judicial interpretations adopted by the Supreme People’s Court, and has incorporated those principles in the Amendment. Among others, Articles 15, 16, 17, 21, 25, 46, 55, 56, 57 and 59 of the Amendment to various degrees reflect relevant provisions that were conceived in judicial interpretations.

III. Enhancing the Protection of Legal Rights

Moreover, the Amendment was likely introduced in order to enhance the protection of legal rights. Notably, (i) Articles 46, 48, 49, 50 and 53 of the Amendment are introduced to strengthen the legal supervision power of the people’s procuratorates, (ii) Articles 43, 44 and 46 of the Amendment are introduced to perfect the system of trial supervision including retrial procedures, (iii) Articles 41, 42, 54, 55, 56 and 57 of the Amendment are introduced to improve enforcement procedures, and also to improve special procedures through the incorporation of relevant judicial interpretations and two types of special procedures, and (iv) Articles 1, 8, 10 and 24 of the Amendment are formulated to reflect and implement the principle of good faith (for example by preventing collusion).

IV. Increasing Transparency

Finally, the Amendment was likely introduced in order to increase transparency. In particular, Article 32 requires written judgments to state clearly the grounds for the application of certain laws. This may indicate longer written judgments in the future, as judges shall not only make reference to the particular laws that are applied in a specific case, but they are now also required to state the reasons why such laws are applied. Further, Article 34 provides that the public can have access to written judgments and court orders, provided that they do not pertain to state secrets, trade secrets or personal privacy. This is a welcomed development, as the public’s ability to inspect judgments and orders will in-turn likely mean that judges will be more cautious when making rulings. Moreover, as the public will have access to judgments and orders, the predictability of the application of laws will likely be enhanced.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sheppard Mullin Richter & Hampton LLP | Attorney Advertising

Written by:

Sheppard Mullin Richter & Hampton LLP
Contact
more
less

Sheppard Mullin Richter & Hampton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.