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Risk Indication Letter of the People’s Court in Civil Procedures
To facilitate the litigation filed by the masses, help the parties avoid common litigation risks and reduce unnecessary losses, in accordance with laws and judicial interpretations such as the General Principles of the Civil Law of the People’s Republic of China, the Civil Procedure Law of the People’s Republic of China and Some Provisions of the Supreme People’s Court on Evidence in Civil Procedures, the common risks in civil procedures are hereby indicated as follows:
I. The litigation doesn’t meet the conditions
Where the party concerned files a litigation not in conformity with the conditions specified by the law, the people’s court will not entertain, or such litigation will be dismissed despite of the entertainment.
Where the party concerned files a litigation not in conformity with the jurisdiction provisions, the case will be referred to the people's court that has jurisdiction over the case.
II. The claims are inappropriate
The claims filed by the party concerned shall be clear, specific and complete, and the people’s court will not try the unfiled claims.
The claims filed by the party concerned shall be appropriate, and the scope of claims shall not be extended at will. Any groundless claims will not be supported by the people’s court, furthermore, such party shall assume the relevant litigation costs.
III. The modification of claims is overdue
Where the party concerned increases or modifies the claims or files a counterclaim which is beyond the time limit approved or specified by the people’s court, such case may not be tried.
IV. The limitation of action is overdue
In general, the period for the party concerned to apply to the people’s court for the protection for civil rights is 2 years (1 year under special circumstances). After the plaintiff files a lawsuit with the people’s court, in case the defendant proposes that the lawsuit of the plaintiff has been beyond the law protection period, the claims will not be supported by the people’s court if the plaintiff fails to provide any evidence in support of the fact that law protection period is overdue.
V. The authorization is unclear or the attorney doesn’t confirm to legal requirement
Where the attorney is entrusted by the party concerned to admit, waive or modify the claims, pursue a compromise, file a counterclaim or an appeal on behalf of the principal, such entrustment shall be specified in the Power of Attorney. In case the Power of Attorney does not specify the matters specially entrusted, the opinions of the attorney on the above-mentioned matters specially entrusted will have no legal effect.
The party concerned shall designate the attorney in accordance with the provisions in Article 58 of the Civil Procedure Law, the personnel excluded from those listed in Article 58 of the Civil Procedure Law will not be accepted as the attorney to participate in the lawsuit by the people’s court.
VI. Any failure to pay litigation costs on time
Where the party concerned who files a litigation or an appeal fails to prepay the litigation costs or apply for deferment or reduction of the payment or for its exemption but fails to obtain approval and still doesn’t pay the litigation costs, an order of automatic withdrawal of a litigation or appeal shall be made by the people's court.
Where the party concerned files a counterclaim and fails to prepay the relevant court acceptance fee in accordance with relevant provisions, the people’s court will not try such case.
VII. The application for preservation doesn’t meet the requirements
Where the party concerned applies for preservation and shall pay the preservation fee in accordance with relevant provisions but fails to do so, the people’s court will not take preservation measures against the property applied for preservation or enjoin the respondent to take certain actions or prohibit such respondent from certain actions.
Where the party concerned applies for preservation but fails to provide appropriate property security as required by the people’s court, such application shall be rejected by the people’s court in accordance with the law.
Where an application for preservation by the applicant is wrongfully made, the applicant shall compensate the respondent for any loss incurred from such preservation.
Where the applicant fails to bring an action or apply for arbitration within 30 days after the people's court has adopted the preservation measures before litigation, the people's court shall cancel such preservation in accordance with the law.
VIII. Any failure to provide or adequately provide evidence
Unless specified by law or judicial interpretation that no furnishing of proof is required, proof shall be furnished when the party concerned files claims or rebut the claims by the other party. In case of any failure to furnish appropriate proof or any failure of the furnished proof to prove the relevant facts, the judgment results may be adverse.
IX． Evidence is provided beyond the time limit of proof
The party concerned shall provide evidence within the period agreed through consultation between both parties and approved or specified by the people’s court. The party concerned that has genuine difficulty in providing evidence with such period may apply to the people’s court for appropriate extension. In case the party concerned provides evidence beyond the time limit and refuses to give the reason or gives untenable reason, such evidence may not be accepted by the people’s court or such evidence may be accepted but a reprimand will be given or a fine will be imposed.
X． Any failure to provide original evidence
Where the party concerned gives evidence to the people’s court, the original document or material evidence shall be submitted, and duplicates or reproductions certified correct by the people’s court may be provided under special circumstances. The evidence provided not in conformity to the above conditions may affect the probative force of evidence or may even not be admitted.
XI. The witness fails to give testimony in court
Except the special circumstances under which it is truly difficult for the witness to appear in court as prescribed in Article 73 of the Civil Procedure Law, where the testimony of witness is provided by the party concerned, such witness shall give testimony in court and answer question. In case the witness fails to give testimony in court, the probative force of the testimony of witness may be affected or even not be accepted.
XII. Any failure to apply for audit, evaluation and identification in accordance with relevant provisions
Where the party concerned who applies for audit, evaluation and identification fails to file the application within the period specified by the people’s court or prepay the expenses concerning audit, evaluation and identification, or fails to provide relevant materials, which results in the failure of recognition of facts in question by the audit, evaluation and identification result, the judgment results may be adverse against the applicant.
XIII. Any failure to appear in court on time or withdrawal during a court session
In case a plaintiff, having been served with a summons, refuses to appear in court without justified reasons, or if he/she withdraws during a court session without the permission of the court, the case may be considered as automatically withdrawn by him/her; in case the defendant files a counterclaim in the mean time, the people’s court will make a judgment by default.
In case a defendant, having been served with a summons, refuses to appear in court without justified reasons, or if he/she withdraws during a court session without the permission of the court, the people's court will make a judgment by default.
XIV. Provide the inaccurate address for service
For civil cases in which summary procedure is followed, when the people’s court serves litigation documents according to the address for service provided by the party concerned, in case of any failure to serve such litigation documents by the people’s court and the return of such litigation documents due to the fact that the address for service of such party proved by himself is inaccurate or the change of address for service is failed to be timely notified, such litigation documents shall be deemed as being served.
XV. Apply for compulsory execution beyond the time limit
The time limit of application for execution of civil case is 2 years.
The time limit of application for execution of administrative verdict writs: Where the applicant is a citizen, the time limit shall be 1 year; Where the applicant is an administrative authority, a legal person or any other organization, the period shall be 180 days.
The time limit shall be calculated from the day when the period of obligation performance specified in the legal document expires. In case of application beyond the said time limit, the people’s court will not accept.
XVI．There is no property or enough property that may be subject to execution
In case the person subject to execution has no property or enough property to fulfill the obligations specified in the effective legal document, the people’s court may make a written order to suspend execution for the unfulfilled part, and the application for property rights and interests of the executor may not be fulfilled for the time being or fully fulfilled.
XVII. Any failure to fulfill the obligations specified in the effective legal document
In case the person subject to execution fails to fulfill his obligations with respect to pecuniary payment within the period specified in any legal document, he/she shall pay double interest on the debt for the belated payment.
In case the person subject to execution fails to fulfill his/her other obligations within the period specified in any legal document, he/she shall pay a charge for the dilatory fulfillment.
XVIII. Any failure to raise the objection to the jurisdiction in a timely manner
Where the party concerned fails to raise the objection to the jurisdiction within the period prescribed for the submission of defense and responds to the action by making his/her defense, he/she shall be deemed as having accepted that such appellate court has jurisdiction over the case. Where the party concerned raises the objection to the jurisdiction after the period prescribed for the submission of defense expires, the people’s court have no obligation to review such objection.
XIX． Malicious prosecution
In case the parties concerned maliciously collude and intend to infringe the legal rights and interests of any other party in such ways as prosecution and conciliation or evade the obligations defined in the legal document, the people's court shall, according to the seriousness of the act, impose a fine on or detain such parties; if the act constitutes a crime, the offenders shall be investigated for criminal responsibility according to law.