Trial

Abstract

AbstractThe pretrial preparation and trial will commence after appropriate service of the court documents on all parties. Ordinary procedure, summary procedure and special procedure are three concepts of parallel standing in the CPL. Except for cases under the summary procedure and the special procedure, all the other cases are tried under the ordinary procedure, which is the basis of all procedures and covers all necessary steps stipulated by the CPL. Our introduction will firstly be based on the ordinary procedure as well. (1) After serving court documents on all parties, the court needs to wait at least 30 days (or 45 days if the defendant is a foreign party without domicile in China) for the defendant to submit statement of defense and evidence. After that, the court can arrange a pretrial conference or a court hearing. There is no specific provision on the process and content of the pretrial conference, and in practice, the pretrial conference may proceed as an ordinary court hearing. Therefore, we advise that the parties try to figure out the process and content of the pretrial conference, and even make proper preparations with reference to the requirements of the ordinary court hearing. (2) In China, the steps of a court hearing generally include: court-conducted investigation, debates in court, closing argument and mediation. Among them, court-conducted investigation and debates in court are the core steps of court trial. To avoid unnecessary repetition and improve trial efficiency, Chinese courts sometimes combine these two steps together. During the Chinese court trial, we should pay attention to the following points: Firstly, judges are not passive listeners, but the leaders and controllers of all trial activities. Secondly, judges generally care more about the fact finding than the opinions of the parties on the law application. Thirdly, Chinese courts attach importance to the trial efficiency, and therefore the parties need to express their opinions as concisely as possible. Fourthly, the court trial may be made publicly available on the Internet; some court trials are also conducted online. (3) After finishing court hearing, the court will make the first-instance judgment and serve it on the parties through legal means to complete the rendering thereof. The parties may appeal within 15 days (or 30 days, if the appellant is a foreign party without domicile in China) and initiate the second-instance procedure. (4) Generally speaking, the trial process of second instance is not so different from that of first instance. The second-instance judgment is the effective final judgment. Under certain circumstances, the second-instance court may also remand the case to the first-instance court for retrial. (5) The trial time limit of first-instance cases under ordinary procedure is 6 months, and can be extended twice up to 15 months. The trial time limit of second-instance cases is 3 months, and can be extended once up to 6 months. But it is sometimes difficult for Chinese courts to close the case within the statutory trial time limit due to the litigation explosion. (6) In addition to the ordinary procedure, Chinese courts will try cases with little dispute and simple legal relations through the summary procedure. Cases under summary procedure are tried by one judge only, with shorter trial period and more flexible and simpler trial procedures. The summary procedure is applicable to most cases accepted by Chinese courts. However, the summary procedure is not frequently applied to foreign-related cases in China. (7) For money-judgment cases with a disputed amount below a certain standard, the trial procedure thereof will be further simplified and referred to as “Small Claims Procedure”. The first instance of such cases is final, and no appeal is allowed. However, the small claims procedure is not applicable to foreign-related cases. (8) At last, all civil cases in China can be divided into two categories: foreign-related cases and non-foreign-related cases. Foreign-related cases refer to cases with foreign elements, including cases where one of the litigants is a foreigner or a foreign organization, etc. There are special rules for the trial of foreign-related cases under the Chinese legal system, mainly to protect the litigious rights of foreign parties. However, it is worth noting that if the parties submit a non-foreign-related case to a foreign court or arbitration institution, it is highly likely that Chinese courts may refuse to recognize and enforce the judgment/award so rendered. This is one of the reasons why we have to distinguish foreign-related cases from non-foreign-related cases.