Litigating in a Chinese Court
Written by Administrator   

As more foreigners make Beijing either their long-term or short-term home, there has been an inevitable corresponding increase in the amount of litigation involving foreigners.  The lawyers at Jay & Shaw have over 15 years’ experience in representing foreigners in the Chinese courts and strive to provide a comprehensive legal service for foreigners living in China.

Procedural Requirements for a Power of Attorney

The procedural requirements for a Power of Attorney (POA) differ, depending on the circumstances of the person in question.

•  Foreign parties who live overseas and are involved in litigation in China have to give a POA to their Chinese lawyers. The POA must be notarized by a notary in the country of their residence. To legalize it, the POA has to be sent to the Chinese Embassy in the foreigner’s country of residence.

•  Foreign parties who live in China and are involved in litigation in China also need to give a POA to their Chinese lawyers. The POA needs to be notarized by a Chinese notary.

•  A foreign party who lives in China may avoid the above process of notarization if the foreigner proves his identity and authorizes his Chinese lawyer to represent him, by presenting himself and his Chinese attorney before a judge when he files the case.

Requirements for producing ID

There are certain requirements that have to be satisfied in order to appear in a Chinese court.

•  A foreign party needs to provide the courts with a copy of their passport and a certified translation including the visa page.

•  A foreign party that has already provided a notarized and or legalized POA does not need to present further ID such as a passport.

•  Foreigners who have been issued work permits or a temporary residence certificates issued by a Chinese public Security Bureau, do not need a certified translation of their passports.

Presence in Court

The requirement for foreigners to be present in court differs depending on the circumstances.

•  In some western countries it is compulsory to retain a lawyer for representation. In [deleted ‘the’] China this is not the case as self-representation is permitted.

•  It is possible to retain a Chinese lawyer for the purpose of representation, and the foreign party can attend court with the lawyer.

•  After a Chinese lawyer has been retained for representation, the foreign party is not required to appear as the lawyer’s [deleted ‘the’] presence is sufficient.

•  In some limited circumstances such as divorce, adoption and custody of children, the foreign plaintiff is required to appear in court regardless of the fact that they may have a Chinese lawyer.

The Plaintiff’s Requirement to Provide the Respondent’s Valid Contact Information for the Service of Documents

In some overseas jurisdictions, it is the legal responsibility of the plaintiff to serve the documents on the respondents, but in China the serving of documents is conducted by the courts instead of the plaintiff. However, the plaintiff is responsible for providing the respondent’s latest valid contact information. The court will not file the case if it cannot serve the documents on the respondent.

The Beijing courts will only file cases involving respondents who have lived in Beijing for more than a year. This rule applies to both foreigners and Chinese nationals. To meet this requirement, the plaintiff has to provide the court with the respondent’s certificate of temporary residence which will confirm the duration of the respondent’s residence in Beijing. If the respondent does not have a certificate of temporary residence, the lease of the respondent’s residence will also be accepted as proof.

If the plaintiff cannot satisfy the above requirements, he/she is obliged to file the case in the province of the respondent’s permanent residence as indicated on his/her identification card.  In this instance, litigation may not be a viable option as filing a case could be impractical and expensive if the plaintiff lives in Beijing.

Delaying a Case as a Foreign Respondent

There are a lot of obstructive procedures that are available to foreign respondents who want to delay or dismiss a case.  Respondents who live overseas or are staying overseas for a period of time can delay proceedings by being uncooperative and demand that the court serves documents on them through the diplomatic channels.  This process could take up to six months.  Then after the documents have been served, the respondent can apply for an extension of time in order to prepare his case.  To further delay the case by another couple of months, the respondent can make the excuse that his POA has to be notarized and authorized.  As this is a typical practice, the court will most likely grant that request.

These are just a few examples of how a foreign respondent can delay a case.  A foreign respondent would be wise to use a Chinese lawyer who is skilled and experienced in dealing with litigation where one of the parties is a foreigner.  Skillful use of delaying tactics available to foreign respondents will render the litigation as void, as a lot of the cases will be defeated by the procedural technicalities of a Chinese court.

Special English Speaking Courts for Foreigners

Most of the civil cases involving foreigners fall in the areas of family law, tort law and contract law.  Most cases are filed in the District Courts for the first instance hearing. To facilitate smooth proceedings for foreigners, some of the District Courts have made special arrangements for them.  For example, the Chaoyang District Court has established a branch court that deals only with cases involving foreigners. The Xicheng District Court has opened a special enquiry counter operated by English speaking staff in order to help foreigners file their cases.

 

 


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