Guiding Opinions of further Doing a Good Job in the Trial of Foreign-related Civil and Commercial Cases in Border Areas

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  • Document NumberNo.57 [2010] of the Supreme People’s Court
  • Area of Law Civil Law
  • Level of Authority Documents of Judicial Interpretation Nature
  • Date issued12-08-2010
  • Effective Date12-08-2010
  • Issuing Authority Supreme People's Court
  • Status Effective

Guiding Opinions of the Supreme People's Court on further Doing a Good Job in the Trial of Foreign-related Civil and Commercial Cases in Border Areas
(No.57 [2010] of the Supreme People's Court)
The higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government:
As the economy, trade and personnel contact in our border areas have become increasingly frequent, the foreign-related civil and commercial cases in border areas are gradually increasing and are presenting new characteristics. To give full play to the trial function of the people's courts, further improve the efficiency in the trial of foreign-related cases of disputes over civil and commercial affairs in our border areas, and effectively do a good job in the trial of foreign-related civil and commercial cases in border areas, we hereby put forward the following opinions:
I. Where the amount in controversy is relatively small, the facts are clear, and the relations of rights and obligations are definite in any foreign-related civil and commercial cases which occurred in border areas, the grassroots people's courts in border areas may exercise jurisdiction.
II. To effectively serve the judicial documents and materials related to litigation on all parties concerned, effectively protect all rights of the parties concerned in legal proceedings, and guarantee their participation in the litigation activities, the people's courts may, in light of the characteristics of border areas, further explore feasible ways of service of process. Where the manner of announcement is adopted in service of process, the form of posting announcements in border ports may be adopted except cases of personal relation. Where the manner of announcement is adopted in service of process, other ways of service of process may be adopted simultaneously.
III. Where an overseas party concerned comes to our country to participate in litigation, the people's court shall require it/him to provide the notarized and authenticated valid identity certificate. If the party concerned is a legal person, the identity certificate of its legal representative or the person who is entitled to participate in litigation on behalf of this legal person shall also be subject to the notarial and authentication formalities. If the party concerned is a natural person who personally presents himself in front of the judge of the people's court, shows his passport or other valid identity certificates as well as the entry certificate, and submits the photocopies of the aforesaid materials, he is not required to go through the notarial and authentication formalities.
IV. Where an overseas party concerned issues a power of attorney beyond the territory of China and entrusts an agent to participate in litigation, the people's court shall require it/him to handle the formalities for notarization and authentication on the power of attorney. If the overseas party concerned issues the power of attorney within the territory of China, it/he shall not be subject to authentication formalities if the power of attorney has been notarized by a notary public office in our country. If the overseas party concerned is a natural person or legal person, and this natural person or the person who is entitled to issue the power of attorney on behalf of this legal person personally presents himself in front of the judge of the people's court and signs the power of attorney on site, it is unnecessary to handle the formalities for notarization and authentication.
V. Where a party concerned provides evidence to prove the facts of the case which is formed overseas, it/he may decide whether to handle the formalities for notarization and authentication on the relevant evidence at its/his own discretion. No matter whether the formalities for notarization and authentication on the evidence provided by the party concerned are handled or not, the people's court shall conduct cross-examination still and decide whether it is admissible.
VI. The people's courts in border areas accepting cases shall timely and accurately grasp the international treaties on civil and commercial affairs judicial assistance concluded or acceded to by our country, better perform the obligations of international treaties in the trial of foreign-related civil and commercial cases, make full use of international treaties already coming into force, especially the bilateral treaties on civil and commercial affairs judicial assistance concluded by our country with neighboring countries, and, when necessary, ask this neighboring country to offer assistance in the service of judicial documents, investigation and evidence collection or provision of relevant legal materials in accordance with relevant provisions of the treaties.
VII. In the process of hearing a case, the people's court shall strictly control the adoption of the measure of restricting the exit of a foreigner, for the adoption thereof, the following conditions must be met concurrently: 1. The person subject to the measure of restricting the exit can only be a party concerned or the legal representative or person in charge of the party concerned that has pending civil or commercial cases in China; 2. It is possible that the party concerned evades the litigation or evades fulfilling the statutory obligations; 3. It may cause difficulties in trial of the case or impossibility in enforcement if the measure of restricting the exit is not adopted.
VIII. In the trial of foreign-related cases of disputes over civil and commercial affairs in border areas, the people's courts shall also give full play to the function and role of mediation, and attach importance to giving play to the role of the local governmental departments such as frontier inspection, customs, public security, etc. as well as industrial associations in the process of mediation.
IX. The people's courts shall support and encourage the parties concerned to settle the foreign-related civil and commercial disputes which occurred in border areas by arbitration and other non-litigation means. Where a valid arbitral agreement is reached on the settlement of disputes between the parties concerned, or the disputes between the parties concerned without any agreement shall be settled by arbitration in accordance with the provisions of relevant international treaties, the people's court shall notify the parties concerned that they should settle the disputes by arbitration.
X. In the process of hearing a foreign-related case of disputes over civil or commercial affairs in border areas, the people's court shall strengthen litigation guidance to the parties concerned. Where the litigation is brought against a defendant that has no residence or no property for execution in China, the people's court shall offer necessary litigation guidance to the plaintiff, and fully notify it/him of the litigation risks, especially the risk of unavailable effective service of process and the risk of unavailable enforcement of the effective judgment within our country.
Where the party losing the lawsuit has no property within the territory of China or its/his property is not sufficient for the enforcement of the effective judgment, the people's court shall notify the party winning the lawsuit of the right to apply to the court of the country where the property available for enforcement is for recognition and enforcement of the civil or commercial judgment made by our court in accordance with the relevant provisions of the international treaties on civil and commercial affairs judicial assistance concluded by our country with other countries.
XI. All higher people's courts of relevant provinces and autonomous regions may, in light of the different conditions and characteristics of the foreign-related cases of disputes over civil and commercial affairs in border areas within their own jurisdictions, formulate corresponding specific implementation measures, and report them to the Supreme People's Court for archival purposes.
December 8, 2010