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Guide to litigation in foreign-related civil cases

Guide to litigation in foreign-related civil cases

1、 Which cases belong to foreign-related civil cases?

  1. One or both parties are foreigners, stateless persons, foreign enterprises or organizations;
  2. The legal facts of the establishment, change and termination of the civil legal relationship between the parties occur in a foreign country;
  3. The subject matter of the lawsuit is in a foreign country.

2、 Provisions on the jurisdiction of foreign-related civil cases

  1. For a lawsuit brought against a defendant who has no domicile in the territory of the people’s Republic of China due to a contract dispute or other property rights and interests dispute, if the contract is signed or performed in the territory of the people’s Republic of China, or the subject matter of the lawsuit is in the territory of the people’s Republic of China, or the defendant has property available for seizure in the territory of the people’s Republic of China, or the defendant has a representative office in the territory of the people’s Republic of China, It may be under the jurisdiction of the people’s Court of the place where the contract is signed, the place where the contract is performed, the place where the subject matter of the lawsuit is located, the place where the property available for seizure is located, the place where the tort is committed or the place where the representative office is domiciled.
  2. The parties to a dispute over a foreign-related contract or property rights and interests may, by written agreement, choose the court in the place that is actually related to the dispute for jurisdiction. If the people’s Court of the people’s Republic of China is chosen to exercise jurisdiction, it shall not violate the provisions of this Law on Hierarchical Jurisdiction and exclusive jurisdiction.
  3. A lawsuit brought on a dispute arising from the performance of a Chinese foreign equity joint venture contract, a Chinese foreign contractual joint venture contract or a Chinese foreign cooperative exploration and development contract in the people’s Republic of China shall be under the jurisdiction of the people’s Court of the people’s Republic of China.

3、 What are the provisions on agents ad litem in foreign-related civil litigation?

  1. If a foreign party needs to entrust a lawyer to act on his behalf in bringing a lawsuit or responding to a lawsuit in a people’s court, he must entrust a lawyer of the people’s Republic of China;
  2. A foreign party may entrust its own country as an agent ad litem or a domestic lawyer as an agent ad litem in a non lawyer capacity;
  3. Officials of foreign embassies and consulates in China, entrusted by their own citizens, may act as agents ad litem in their own name, but they do not enjoy diplomatic privileges and immunities in litigation;
  4. Foreign embassies and consulates in China authorize their own officials to hire Chinese lawyers or Chinese citizens to represent their nationals in civil proceedings in China as diplomatic representatives when their nationals are not within the territory of China.

4、 What are the special provisions on the litigation materials submitted in foreign-related civil litigation?

  1. Litigation documents formed abroad, including indictments, documents proving the qualification of the parties, letters of authorization, various applications and evidentiary materials, shall be certified by the notary organ of the country where they are located and authenticated by the embassy and consulate of the people’s Republic of China in that country, or perform the certification procedures specified in the relevant treaties concluded between the people’s Republic of China and the country where they are located;
  2. If a foreign party has a representative office or business agency in China, and the proof of the existence of its subject has been registered or filed with the relevant domestic departments (industry and Commerce), the proof materials of the existence of the foreign party’s subject may no longer go through the relevant notarization, certification or other certification procedures;
  3. If the legal representative or person in charge of a foreign natural person or foreign legal person or other organization signs the power of attorney in front of the case handling personnel of the people’s court, it is not necessary to go through notarization, authentication or other certification procedures, but the identity certificate and entry certificate of the natural person shall be presented when signing the power of attorney The legal representative or person in charge of other organizations must also provide the certificate issued by the legal person or other organization that can prove that it has the right to sign the power of attorney. The certificate does not need to go through notarization, certification or other certification procedures. The case handling personnel of the people’s court shall indicate the relevant information on the power of attorney and require the legal representative or person in charge of the foreign natural person or legal person or other organization to confirm it;
  4. The power of attorney signed in China by the legal representative or person in charge of a foreign natural person or foreign legal person or other organization shall be notarized by a notary organ in China to prove that the power of attorney is signed in China, and the legal representative or person in charge of a foreign legal person or other organization has provided the people’s court with the certificate issued by the legal person or other organization, which has been notarized If the certification or other certification procedures can prove that it has the right to sign the power of attorney, the power of attorney does not need to go through notarization, certification or other certification procedures in the country where it is located;
  5. When a party provides documentary evidence or explanatory materials in a foreign language to the people’s court, a Chinese translation shall be attached.

5、 How does the court serve judicial documents in foreign-related civil litigation?

  1. Service shall be made in the manner prescribed in the international treaty concluded or jointly acceded to by the country where the recipient is located and the people’s Republic of China;
  2. Service through diplomatic channels;
  3. With respect to the person to be served who has the nationality of the people’s Republic of China, he may entrust the embassy or consulate of the people’s Republic of China in the country where the person to be served is located to serve on his behalf;
  4. Serve on the agent ad litem entrusted by the person to be served who has the right to accept service on his behalf;
  5. To the representative office established by the addressee within the territory of the people’s Republic of China or the branch or business agent entitled to receive service;
  6. If the law of the country where the addressee is located permits service by mail, it may be served by mail. The return certificate of service shall be attached when the mail is delivered. If the addressee fails to sign on the service receipt but signs on the mail receipt, it shall be deemed to have been served, and the date of signing shall be the date of service. If the service receipt is not returned within six months from the date of mailing, but it is sufficient to determine that it has been served according to various circumstances, it shall be deemed to have been served on the date of expiration of the period;
  7. If a natural person or the legal representative or principal responsible person of an enterprise or other organization who is the person to be served is within the territory of the people’s Republic of China, the people’s court may serve service on the natural person or legal representative or principal responsible person;
  8. If it cannot be served by the above methods, it shall be deemed to have been served by public announcement at the end of six months from the date of public announcement;
  9. In addition to the way of service by public announcement, the people’s court may serve on the person to be served at the same time in multiple ways, but the date of service shall be determined according to the way in which service is first realized;
  10. When the people’s court serves judicial documents on the legal representative, principal person in charge, agent ad litem, representative office, branch and business agent of the person to be served within the territory of the people’s Republic of China, the method of lien service may be applied.

6、 What are the special provisions on the duration of foreign-related civil litigation?

  1. The time limit for a defendant who has no domicile within the territory of the people’s Republic of China is 30 days;
  2. The period of appeal against the judgment and ruling of the people’s Court of first instance shall be 15 days (judgment) or 10 days (ruling) if both parties live in China and outside China respectively; Thirty days for those who live outside the territory of our country.;
  3. If a party who has no domicile within the territory of the people’s Republic of China is served by public announcement, the period of public announcement shall be six months;

涉外民事案件诉讼指南

一、哪些案件属于涉外民事案件?

1、当事人一方或双方是外国人、无国籍人、外国企业或组织;

2、当事人之间民事法律关系的设立、变更、终止的法律事实发生在外国;

3、诉讼标的物在外国。

二、涉外民事案件的管辖规定

1、因合同纠纷或者其他财产权益纠纷,对在中华人民共和国领域内没有住所的被告提起的诉讼,如果合同在中华人民共和国领域内签订或者履行,或者诉讼标的物在中华人民共和国领域内,或者被告在中华人民共和国领域内有可供扣押的财产,或者被告在中华人民共和国领域内设有代表机构,可以由合同签订地、合同履行地、诉讼标的物所在地、可供扣押财产所在地、侵权行为地或者代表机构住所地人民法院管辖。

2、涉外合同或者涉外财产权益纠纷的当事人,可以用书面协议选择与争议有实际联系的地点的法院管辖。选择中华人民共和国人民法院管辖的,不得违反本法关于级别管辖和专属管辖的规定。

3、因在中华人民共和国履行中外合资经营企业合同、中外合作经营企业合同、中外合作勘探开发自然资源合同发生纠纷提起的诉讼,由中华人民共和国人民法院管辖。

三、涉外民事诉讼中对诉讼代理人有何规定?

1、外籍当事人在人民法院起诉、应诉,需要委托律师代理诉讼的,必须委托中华人民共和国的律师;

2、外籍当事人可以委托本国人为诉讼代理人,也可以委托本国律师以非律师身份担任诉讼代理人;

3、外国驻华使、领馆官员,受本国公民的委托,可以以个人名义担任诉讼代理人,但在诉讼中不享有外交特权和豁免权;

4、外国驻华使、领馆授权其本馆官员,在作为当事人的本国国民不在我国领域内的情况下,可以以外交代表身份为其本国国民在我国聘请中国律师或中国公民代理民事诉讼。

四、涉外民事诉讼中提交的诉讼材料有什么特别规定?

1、在境外形成的诉讼文书,包括起诉状、当事人主体资格证明文件、授权委托书、各类申请书、证据材料等,应当经所在国公证机关证明,并经中华人民共和国驻该国使领馆认证,或者履行中华人民共和国与该所在国订立的有关条约中规定的证明手续;

2、外籍当事人在我国境内设有代表机构或者业务代办机构,并且其主体存在的证明已经在国内有关部门进行过(工商)登记或备案的,该外籍当事人主体存在的证明材料可以不再办理相关的公证、认证或者其他证明手续;

3、外国自然人或外国法人、其他组织的法定代表人或负责人在人民法院办案人员面前签署的授权委托书的,无需办理公证、认证或者其他证明手续,但在签署授权委托书时应出示自然人身份证明和入境证明,外国法人、其他组织的法定代表人或负责人还必须提供该法人或其他组织出具的能够证明其有权签署授权委托书的证明文件,该证明文件不需办理公证、认证或其他证明手续。人民法院办案人员应在授权委托书上注明相关情况并要求该外国自然人或法人、其他组织的法定代表人或负责人予以确认;

4、外国自然人或外国法人、其他组织的法定代表人或负责人在我国境内签署的授权委托书,经我国公证机关公证,证明该委托书是在我国境内签署的,且外国法人、其他组织的法定代表人或负责人向人民法院提供了法人、其他组织出具的办理了公证、认证或其他证明手续的能够证明其有权签署授权委托书的证明文件的,该授权委托书无需在其所在国再办理公证、认证或者其他证明手续;

5、当事人向人民法院提供外文书证或者外文说明资料,应当附有中文译本。

五、涉外民事诉讼中法院如何送达司法文书?

1、依照受送达人所在国与中华人民共和国缔结或者共同参加的国际条约中规定的方式送达;

2、通过外交途径送达;

3、对具有中华人民共和国国籍的受送达人,可以委托中华人民共和国驻受送达人所在国的使领馆代为送达;

4、向受送达人委托的有权代其接受送达的诉讼代理人送达;

5、向受送达人在中华人民共和国领域内设立的代表机构或者有权接受送达的分支机构、业务代办人送达;

6、受送达人所在国的法律允许邮寄送达的,可以邮寄送达。邮寄送达时应附有送达回证。受送达人未在送达回证上签收但在邮件回执上签收的,视为送达,签收日期为送达日期。自邮寄之日起满六个月,送达回证没有退回,但根据各种情况足以认定已经送达的,期间届满之日视为送达;

7、作为受送达人的自然人或者企业、其他组织的法定代表人、主要负责人在中华人民共和国领域内的,人民法院可以向该自然人或者法定代表人、主要负责人送达;

8、不能用上述方式送达的,公告送达,自公告之日起满六个月,即视为送达;

9、除公告送达方式外,人民法院可以同时采取多种方式向受送达人进行送达,但应根据最先实现送达的方式确定送达日期;

10、人民法院向受送达人在中华人民共和国领域内的法定代表人、主要负责人、诉讼代理人、代表机构以及有权接受送达的分支机构、业务代办人送达司法文书,可以适用留置送达的方式。

六、涉外民事诉讼中对期间有何特别规定?

1、在中华人民共和国领域内没有住所的被告的答辩期为三十日;

2、当事人双方分别居住在我国领域内和领域外,对第一审人民法院判决、裁定的上诉期,居住在我国领域内的分别为十五日(判决)或十日(裁定);居住在我国领域外的为三十日。;

3、对在中华人民共和国领域内没有住所的当事人采取公告方式送达的,公告期为六个月;

 

 

 

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