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Tips of filing a case in China Court

Time:2014-03-13 Hit:915

Tips of filing a case in China Court

1. Definition of  “foreign-related case”: at least one of the parties is a foreign party; the occurrence, modification, or termination of the legal fact which constitutes the rights or obligations takes place abroad; the subject matter is located overseas. 

2. In China, a court will rarely award attorney fees, because it is considered that the attorney fee is not fixed, it must cost to the respective parties involved in the lawsuit.

3. The time limit for the court of the first instance is a six month maximum from the date of acceptance unless it is approved by the court chairman or he court of a high level to extend for another three months, however, there is no time limit for the foreign-related cases. 

4. Notarization and authentication of the Power of Attorney and other evidence, notarization and authentication refer to the validity of the evidence that formed or created in a foreign country such as bills of lading, delivery notes, emails, contracts. It is a natural process to look at the validity of the document that is raised by a foreign party to the court. The notarization confirms the identity of the signatory of a document or confirms it to be a real copy of an original. Authentication is the course of verification of the documents mentioned above by the Chinese Embassy or Consulate in the country the evidence or documents is created. 

5. The enforcement of the judgment. After the first instance court awards the case (the district court, the intermediate court or the provincial court), the ruling can be appealed once at a higher level if the party does not agree with the award (usually the losing party), and the judgment made by the higher court is the final verdict. After receiving the final verdict from the court, if the losing party fails to perform according to the verdict, the winning party has to apply for compulsory enforcement with the original court or the court where the defendant’s property is located.  

6. The application for retrial of the judgment: according to China Civil Procedure Law, even after a valid judgment has been rendered, the litigants can still apply for retrial of the case on some certain strict conditions stipulated in Article 179 of the China Civil Procedural Law.

7. As for the compensation, the China Court calculates the damages according to the costs a plaintiff has suffered, or to the benefits, the defendant has gained from the breach of the contract or infringement of rights. Proof of losses has to be provided. Even if there is a punitive clause in the agreement, the breaching party still has the right to request that the People’s Court award damages under the amount of 130% of the actual losses. Emotional damages are not commonly considered in China’s court. 

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