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POLICY: Amendments to China’s Civil Procedure Law
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China’s National People’s Congress adopted an amendment (the ’Amendment’) to the Civil Procedure Law(中华人民共和国民事诉讼法) (‘CPL’) in August 2012. The Amendment,  effective as of 1 January 2013, brings about some significant revisions to one of China’s fundamental laws and will impact on procedures of civil litigation in the future. 
 
Admission of Digital Evidence 
Electronic transmission of information and documents has become commonplace in both commercial and social contexts nowadays. Although in practise, e-evidence has been widely accepted, the current CPL itself, as amended in 2007, still remains silent on the admissibility of digital evidence. Now finally, the Amendment to CPL takes a step forward to formally accepting digital evidence as one of the legally recognised means of admissible evidence. Article 12 of the Amendment specifically provides that digital data shall be added to the list of admissible evidence. Digital data covers a wide range of electronic evidences such as email, blog, instant messages such as MSN, QQ etc, voice mail or micro-blogs.
 
Moreover, the Amendment moves on to embrace digital technology in the service of process in order to more efficiently facilitate the litigation procedure. Article 18 of the Amendment states that in order to legally perform the servicing of documents, photos or videos of the servicing process can be used to record the delivery of documents. Furthermore, the Amendment adds one new article to CPL, which is Article 87, providing that sending select permitted litigation-related documents except court rulings, mediation and settlement agreements via fax or email can also be one valid way to deliver legal documents.
 
Summary Procedure
Traditionally, China has a trial system of ‘two instances’ with additional remedy in the form of a retrial system under exceptional circumstances. It means that in general, civil litigation may go through two instances and the ruling by the appeal court is the final one. In an attempt to relieve the court from the ever-increasing amount of cases, Article 37 of the Amendment provides that ‘Where a basic court or its detached tribunal tries a simple civil case as mentioned in paragraph 1 of Article 157 of this Law, if the value amount of subject matter is lower than 30 percent of the previous year’s average annual wages in a particular province, autonomous region or municipality directly under the Central Government, the adjudication of the basic people’s court or detached tribunal shall be final’. This suggests small claims judgments shall be final without appeal. The purpose is to address abuse of legal proceedings, as well as the increasingly heavy caseload of the courts and clear backlog of cases more efficiently.
 
Public Interest Litigation
Although the current CPL does provide a basic framework for joint litigation, group litigation and rights of third parties to join litigation, it never addresses the issue of public interest litigation which often does not fulfil the plaintiff standing test under the current CPL. Under Article 108 of current CPL, a proper plaintiff must demonstrate that it has a direct interest in the case it attempts to file before a lawsuit can be lodged with the court.
 
Public interest action in the past would be thrown out by the courts on the ground that the plaintiff cannot prove it has direct interest in the case. Over the years, environmental degradation and food safety has been increasingly under fire by the public and media, the Amendment heeding the public outcry for the first time expressly provides for public interest litigation. However, the Amendment does not afford standing to individuals to bring such legal action. Only institutions and relevant organisations as provided by law may be able to institute public interest suits at the courts. More specific interpretations are needed to shed more light on what entities would qualify as the proper plaintiff to file such kinds of litigation which benefits the public in general, rather than specific individuals.
 
Pre-arbitration Conservatory Measures for Arbitrations 
Under the Amendment, a new Article 81 of the amended CPL provides that: ‘Where under an emergency event whereby it is likely that evidence may be destroyed or become difficult to obtain later on, an interested party may, prior to instituting a lawsuit or applying for arbitration apply to the court at the place where the evidence is located, the domicile of the party against which the application is made or the competent court with jurisdiction over the case to preserve the evidence’. This is an extremely helpful provision for parties in arbitration because under the current regime, parties must wait until after the arbitration tribunal has been formed before applying for these measures to the arbitration commission which has to be then passed onto the competent court to issue an order .
 
Article 22 of the Amendment provides that: ’Where an interested party whose legitimate rights and interests, due to an emergency, would suffer irreparable damage if the party fails to petition for property preservation promptly, may, before instituting a lawsuit or applying for arbitration apply to the court at the locality of the property, the domicile of the party against which the application is made, or the competent court with jurisdiction over the case, for the property preservation measures’.
 
The Amendment also now imposes a time limit on the court to make a decision following receipt of the application for property preservation. While it is not clarified under the current CPL, the court will be required to make a decision with 48 hours from January 2013 and the applicant has to observe a deadline as well to commence arbitration within 30 days of the date of the order by the court to grant property preservation measures. 
 
Penalty for Abuse of Litigation and Obstruction of Justice
Under Articles 24 and 25, which are Articles 112-115 under the amended CPL, if a party against whom an enforcement is being applied is found to be engaged in maliciously collaborating with another party to evade obligations under a legal instrument using litigation, arbitration, mediation or any other means, or if a party/parties is/are found to be maliciously collaborating with another to attempt to use vexatious litigation or mediation in order to infringe third parties’ legitimate interests, the court may fine or detain the offender and even criminal liability may apply if criminal offence has been committed under the Criminal Law. Similar legal consequences may apply to persons or entities who refuse or obstruct the investigation, seizure and attachment of property, freezing of bank accounts, transfer or disposal of assets for enforcement of court ruling or arbitral award or evidence collection under the court order.
 
More Transparency
Under Article 34, the amended CPL adds an article which is Article 156. It provides that the public shall be given access to legally effective judgments or orders except those that involve state secrets, commercial secrets or individual privacy. This marks a major progress towards more transparency of the judiciary which in the past has seldom published its rulings. and furthermore, the public has never been expressly granted such right in law before.
 
Conclusion
Doubt the Amendment aims to better facilitate the judiciary and parties in litigation in relation to efficiency, effectiveness and the due process of the civil proceedings. It remains to be seen how it will be implemented in practice. And more judicial interpretations or implementation rules are expected to be released soon. 
 
 

By Simon Bai 
 
 
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