Safeguarding Litigation Rights and Preserving Judicial Justice—Interview with Wang Shengming, Xi Xiaoming, and Jiang Jianchu on the Revision of the Civil Procedure Law

From: English Edition of Qiushi Journal Updated: 2013-05-28 18:30
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On August 31, 2012, the Standing Committee of the Eleventh National People’s Congress (NPC) deliberated and passed the Decision on Revising the Civil Procedure Law of the People’s Republic of China at its twenty-eighth session. The newly revised law, the passage of which represents an important event to take place in the development of China’s legal system since the revision of the Criminal Procedure Law, took effect on January 1, 2013. In the interests of publicizing this newly revised law, Qiushi recently conducted an interview with Wang Shengming, Vice-Chairman of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress, Xi Xiaoming, Vice-President of the Supreme People’s Court, and Jiang Jianchu, Deputy Procurator-General of the Supreme People’s Procuratorate.  

Legislating in a scientific and democratic fashion and improving China’s system of laws

Reporter: Please could you introduce the background to the revision of the Civil Procedure Law and tell us why this revision is significant? 

Wang Shengming: The Civil Procedure Law is one of China’s fundamental laws. This is because it outlines the basic rules that are used to govern civil procedure. The Civil Procedure law was first passed at the Fourth Session of the Seventh National People’s Congress in 1991. It was later revised in part by the Standing Committee of the Tenth National People’s Congress at its thirtieth session in 2007. Speaking in general terms, the basic principles laid out in this law were correct, and most of its articles were feasible. However, with the rapid progression of China’s economic and social development, and a large increase in the overall number of civil cases, we began to encounter new types of cases that we had never dealt with before. Under such circumstances, certain provisions in the Civil Procedure Law were no longer able to satisfy the demands of the general public in judicial practice. This meant that further improvements were needed.  

Xi Xiaoming: In recent years we have seen a rapid increase in both the number and types of civil cases. A total of 6.78 million new civil cases were accepted by China’s courts during the period from January to November 2012, representing an increase of 11.09% over the previous year. In addition to traditional cases, the number of commercial cases, IPR cases, and new kinds of cases increased almost constantly. These cases involved companies, banking, and bonds; patents, trademarks, and copyright; as well as overseas trading, maritime affairs, and maritime commerce. The growing case load meant that people’s courts came under increasing levels of pressure as they worked to hear civil cases and enforce previous rulings. Therefore, the newly revised Civil Procedure Law has an important role to play in promoting the work of the people’s courts, providing civil subjects with judicial protection for their civil rights, and maintaining the justice of judicial proceedings.     

Reporter: Please could you briefly describe how the Civil Procedure Law was revised and what procedures were involved? 

In 2010, the Weining Yi, Hui, and Miao Autonomous County in Guizhou Province began implementing a system of mobile courts for residents in remote areas of the Wumeng Mountains, where travelling to a courthouse involves trekking over miles upon miles of mountainous terrain. Scaling mountain ridges and venturing into remote villages, these mobile courts have handled more than 360 cases, winning praise from local residents. / Xinhua (Photo by Yang Wenbin)

Wang Shengming: In past years a number of deputies to the NPC, among others, had called for the revision of the Civil Procedure Law. Working in line with the legislative agenda of the NPC Standing Committee, and the general task of constantly improving the socialist system of laws with Chinese characteristics, the Legislative Affairs Commission began drafting an amended version of the law in 2010. During the revision process we gave emphasis to the following points: The first point was to adhere to the principles of socialist rule of law with Chinese characteristics, draw lessons from the implementation of the Civil Procedure law, and further protect the litigation rights of participants in civil proceedings in light of new developments and new problems, so as to safeguard justice in the judicial system. The second point was to respect the basic principles of civil procedure and rationally allocate judicial resources in order to raise efficiency. The third point was to enhance legal supervision in civil procedure so as to ensure the correct implementation of the law. The fourth point was to emphasize the effective resolution of civil disputes in order to promote social harmony and stability. And the fifth point was to leave matters of disagreement or uncertainty aside for future resolution. During the revision process, the Legislative Affairs Commission engaged in frequent deliberations with the Supreme People’s Court, the Supreme People’s Procuratorate, and other related organizations, heard numerous suggestions from NPC deputies, businesses, lawyers, and experts, and solicited advice from the standing committees of certain local people’s congresses. After thorough consultation, a general consensus was reached on the revision of certain provisions in the Civil Procedure Law. These efforts culminated in the formation of a draft amendment.  

Protecting litigation rights and enhancing good faith in civil procedure

Reporter: How has the need to protect the litigation rights of participants in civil procedure been embodied in the newly revised law? 

Xi Xiaoming: The newly revised Civil Procedure Law includes more than 100 changes to the original provisions. Numerous important changes and improvements have been made with regard to protecting the litigation rights that parties to civil procedure enjoy. For example, in order to facilitate the production of evidence, we have stipulated that the parties involved are entitled to initiate assessment procedures and invite specialist personnel to issue professional opinions and to be involved during the course of proceedings. These provisions provide the parties involved with a means of preserving evidence prior to the filing of civil action. In order to guarantee that the rights of the parties involved can be truly realized, we have introduced a behavior injunction system which, to the greatest possible extent, is able to avoid situations where rulings cannot be enforced or the rights of a certain party are infringed owing to the actions of the counter party or any other reason attributable to that party. In order to address problems with the enforcement of rulings, we have revised provisions on the implementation of compulsory measures by people’s courts. Under the new provisions, court enforcers are able to take compulsory action as soon as an enforcement notice is issued. This makes it less likely that those subject to the compulsory enforcement of a ruling will be able to evade compliance. We have added provisions that allow third parties to request the withdrawal of court rulings that infringe their rights. By giving third parties the right to appeal for the amendment or withdrawal of rulings that infringe on their rights, these provisions are able to effectively protect the legitimate rights and interests of third parties who may be affected by rulings that do not involve them directly. We have stipulated that parties who contest a court ruling are entitled to seek advice from a people’s procuratorate or apply for a people’s procuratorate to protest on their behalf, provided that certain conditions are met. In addition, in order to prevent people from abusing their rights by filing malicious lawsuits and evading court rulings, we have added provisions for punitive action against parties who conspire to infringe the rights of others or public interest via litigation, arbitration, and mediation, and against parties who attempt to evade the enforcement of rulings against them.  

Jiang Jianchu: To address the abuse of litigation rights through phony and malicious lawsuits, one of the revisions we have made to the Civil Procedure Law has been to stipulate that civil lawsuits should be carried out in line with the principles of good faith and trust. In the interests of preserving procedural order, promoting good faith, and safeguarding judicial justice, we have increased the level of punishment against those who conduct themselves in bad faith; defined punitive measures for parties who maliciously conspire to infringe the rights of others or public interests via litigation, arbitration, and mediation; and added measures for the punishment of parties who maliciously conspire to evade the enforcement of rulings against them via litigation, arbitration, and mediation. Given the frequent occurrence of environmental pollution and food safety incidents in recent years, we have introduced public interest litigation into the Civil Procedure Law for the first time, stipulating that legally prescribed organizations may file lawsuits with people’s courts against acts that damage public interests, such as acts of environmental pollution, acts that infringe on the legitimate rights and interests of large numbers of consumers, and other such acts. At the same time, procuratorate authorities are required to perform their supervisory duties in strict accordance with the law.  

Improving provisions on the presentation and authentication of evidence

Reporter: Evidence is the basis on which people’s courts determine facts and deliver their rulings. How have provisions in regard to evidence been improved in the newly revised Civil Procedure Law? 

Xi Xiaoming: A number of important revisions have been made to the law, such as adding more evidence types, introducing expert testimonies, establishing a time-limit system for the production of evidence, and providing more detailed provisions on the obligations of testifying witnesses, the preservation of evidence, and the use of judicial assessments. We have established a system whereby the production of evidence is subject to time limits, and formulated stipulations with regard to the setting of deadlines, the circumstances under which the production of evidence can be deferred, and the handling of evidence that is produced after deadlines have elapsed. These stipulations will play a positive role in raising the efficiency of litigation, preventing the sudden production of new evidence, and ensuring that the rights and privileges of both parties receive equal protection. The law stipulates that where time-limit provisions apply, courts must set rational deadlines in order to provide equal protection for the rights and privileges of both parties. Full consideration needs to be given to the capacity of the parties involved to produce evidence, so as to appropriately apply regulations on time-limit deferrals. In addition, the law stipulates that courts must act with caution when applying rules on evidence disqualification, and ensure that evidence is only refused in circumstances where a party maliciously misses a deadline to provide evidence or where failure to meet a deadline constitutes a major error.        

Jiang Jianchu: Civil procedure takes place under the guidance of a people’s court. It is a process in which evidence is produced by one party, cross examined by the other party, and verified by the people’s court. The newly revised Civil Procedure Law has recognized electronic evidence as a new form of evidence, established a time-limit system for the production of evidence, defined the legal repercussions for the failure to produce evidence on time, improved the testimonial system and the assessment system, introduced a system to preserve evidence prior to litigation or arbitration, and established a system for the registration of evidence upon receipt. The establishment of these provisions not only bears significance for guiding and regulating the production of evidence by involved parties, and for regulating the actions of people’s courts in certifying and preserving evidence, but also provides a legal basis for procuratorate authorities to fulfill their supervisory duties and deem whether or not people’s courts exercise their judicial powers in accordance with the law.    

Lowering the cost of litigation and raising judicial efficiency

Reporter: Please could you talk about the provisions that have been made in the revised law with regard to lowering the cost of litigation and raising judicial efficiency?

Xi Xiaoming: One of the key points in revising the law was to look into the issue of litigation efficiency. For instance, in order to make better use of simplified procedures, we have stipulated that in cases where standard procedures apply, the parties involved may agree on the use of simplified procedures for the hearing. For small claims litigation, we have formulated a system whereby the first-instance ruling constitutes the final ruling. To improve the way that cases are filed, we have stipulated a system whereby cases are divided into one of two different types, simple or complex, on the basis of their complexity when they are established, and then handled accordingly in line with different procedures. We have improved provisions on the servicing of documents. These improvements include adding provisions that allow us to leave documents at the address of the recipient should the recipient refuse to accept them, introducing faster ways of serving documents, such as fax and e-mail, and reducing the time it takes to serve notices involving foreign parties. We have revised enforcement procedures, stipulating that rulings can be enforced as soon as an enforcement notice is served, and have also added provisions allowing courts to sell the subject of an enforced ruling at their own discretion. All of these new improvements will be of help in raising the efficiency of civil proceedings, lowering litigation costs for those involved, and putting judiciary resources to rational use.  

Jiang Jianchu: In the revised law we have laid out procedures for small claims litigation. In an effort to raise the efficiency of small claims cases, we have formulated a diverse set of litigation procedures comprising of procedures for small claims litigation, simplified procedures, and standard procedures. For small claims cases that satisfy certain requirements, we have created a system whereby the first-instance ruling constitutes the final ruling. This allows us to lower litigation costs and save judicial resources. We have further improved second instance and rehearing procedures. For example, we have defined the circumstances under which court hearings do not need to be held for procedure of second instance. We have also stipulated that cases in which the facts are unclear and there has been serious violation of judicial procedure must be sent back for rehearing. These provisions have further clarified the circumstances under which cases must be reheard. In addition, we have also stipulated that where a case has been sent back to the people’s court of first instance for rehearing, and where one of the parties involved appeals against that court’s ruling, the court of second instance is not permitted to send the case in question back to the court of first instance for a second rehearing. With regard to the rehearing of cases, we have made sensible changes with regard to the courts that can rehear disputed cases, the time limits for the parties involved to request a rehearing, and the conditions that parties involved must meet in order to forward such requests. 

Stepping up legal supervision and preserving judicial justice

Reporter: The revised Civil Procedure Law has given procuratorate authorities greater supervisory powers. Please could you introduce the new provisions that have been made to strengthen legal supervision?  

Jiang Jianchu: The Constitution grants procuratorate authorities the power to conduct legal supervision. Therefore, being a reflection of the governing laws and objective requirements of judiciary practice during the legislative process, enhancing the supervision of procuratorate authorities in regard to civil procedure represents a specific means of enforcing the fundamental system established by the Constitution. For the revision of the Civil Procedure Law, steps were taken to enhance the scope, methods, and means of procuratorate supervision. The first thing we did was to broaden the scope of supervision. Whereas in the past the Civil Procedure Law stipulated that the supervisory activities of procuratorate authorities applied to civil hearings alone, the revised version of the law has broadened these powers to cover the entire scope of civil procedure, including the illegal behavior of judges in procedures outside of hearings as well as enforcement activities in civil law. Secondly, we have added more methods of supervision. In addition to standardizing and enriching the traditional practice of filing protests, we have introduced procuratorate suggestions as a new method of supervision. Thirdly, we have strengthened the means of supervision. Investigative power is a rational constituent of procuratorate authorities’ power to conduct legal supervision, and a necessary means for the exercising of this power. When we revised the Civil Procedure Law, we added the provision, “as may be required for people’s procuratorates to perform their supervisory functions by issuing procuratorate suggestions and protests, people’s procuratorates are permitted to verify through investigation the relevant circumstances of parties involved or not involved in a case.” This provision has helped to raise the effectiveness of procuratorate supervision. However, with regard to how procuratorate authorities implement their enhanced supervisory functions, certain articles contain specific provisions, while others only carry guideline stipulations. Therefore, bearing in mind that the primary function of supervision by procuratorates in civil procedure is to monitor the use of public power, procuratorate authorities are required to regulate their supervisory actions and perform their duties in accordance with the law. 

(Originally appeared in Qiushi Journal, Chinese edition, No.2, 2013) 

Note:  Yang Shaohua and Yi Saijian are reporters of Qiushi Journal.

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