Civil proceedings involving foreign persons in China
As the process of globalization deepens, there are more and more civil exchanges between countries, in which various civil disputes involving foreign persons inevitably arise. China is one of the participants in many international associations in various fields of cooperation <**>. The judicial form of protection of rights is universal, guaranteed not only to citizens of this country, but also to any person located on the territory of China, therefore it is very important to provide such persons with the opportunity to exercise their rights. This article analyzes the procedural legislation of the People's Republic of China and the legal status of foreign persons, their legal status, jurisdiction of courts, as well as the features of recognition and enforcement of decisions of foreign courts in the People's Republic of China.
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Frolova E.E. Digitalization and green financing: new trends in legal regulation of economic relations of the XXI century // Modern problems and prospects for the development of private law and public law regulation: mat. National Scientific and Practical Conference dedicated to the 75th anniversary of Victory in the Great Patriotic War of 1941-1945 and the 90th anniversary of the birth of Doctor of Law, Professor Mark Semyonovich Ordansky. Ufa, 2020. pp. 328-334.
Keywords: civil proceedings, foreign persons, Code of Civil Procedure, jurisdiction of courts, People's Republic of China.
The modern civil procedure law of the majority of the world's legal systems is faced with such reform trends as simplification of the judicial procedure, ensuring fairness and openness of judicial proceedings, the use of digital technologies and so on <1>. In the process of reforming the judicial and civil law systems, China has not only preserved its traditional philosophical ideas, but also borrowed the experience of Western countries.
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<1> Rusakova E.P. Integration of modern digital technologies into the legal proceedings of the People's Republic of China and Singapore // State and law. 2020. N 9. pp. 102 - 109.
Chinese procedural legislation has been developing for almost three decades. Since the entry into force of the Civil Procedure Code of the People's Republic of China <2> (hereinafter referred to as the CPC of the People's Republic of China or CPC) on April 9, 1991, three amendments have been made to it. Section IV of the CPC of the People's Republic of China focuses on issues related to civil proceedings involving foreign persons, including jurisdiction of courts, assignment and service of documents, arbitration and mutual legal assistance. It is worth noting that since the entry into force of the CPC of the People's Republic of China, no major changes have been made to section IV. However, the relevant provisions of civil proceedings involving foreign persons generally correspond to modern judicial needs.
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<2> The Civil Procedure Code of the People's Republic of China dated April 9, 1991 (as amended on 06/27/2017) // Official website of the National People's Congress of the People's Republic of China.
From the point of view of human rights protection, as one of the forms of human rights expression, the CPC of the People's Republic of China provides foreign persons (foreigners, stateless persons, foreign enterprises and organizations) with equal legal status. Article 5 of the CPC of the People's Republic of China states that foreign persons have the right to apply to the People's Court on an equal basis with Chinese ones. But this status is relative: if the country to which the foreign person belongs imposes restrictions on the civil procedure law of Chinese persons, then the Chinese people's courts also impose restrictions on foreign persons.
The legal system is an important part of the national judicial system <3>, which can only be applied in one's own country, and not abroad. Thus, lawyers can generally engage in judicial representation as a lawyer only in the courts of their country, and not in foreign ones.
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<3> Ermakova E.P., Rusakova E.P., Mendoza-Molina S.V. Actual problems of civil procedure: studies. Moscow, 2017. p. 15.
Foreign persons participating in Chinese lawsuits as plaintiffs and defendants have the right to conduct the case through a procedural representative. According to articles 528 and 529 of the Supreme People's Court's Clarifications on the CPC of the People's Republic of China <4>, foreign persons may authorize the representation of fellow citizens or a lawyer of their country, but he is not allowed to participate in the trial as a lawyer. It is worth noting that foreign persons can be represented by consuls of the respective States in accordance with their powers, but consuls will not be able to enjoy diplomatic immunity and other privileges in the courts.
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<4> Explanations of the Supreme People's Court on the CPC of the People's Republic of China dated February 4, 2015 // Official website of the Supreme People's Court of the People's Republic of China.
Diplomatic immunity is a symbol of judicial cooperation between the two countries. Article 261 of the CPC of the People's Republic of China provides that if a country in which a foreigner enjoys diplomatic privileges and immunities has concluded or participated in relevant international treaties with China, then a civil claim against a foreigner is considered in accordance with the provisions on diplomatic privileges and immunities. In addition, the Supreme People's Court of the People's Republic of China additionally identified some subjects using diplomatic powers <5> and regulated that in a civil case filed with the People's Court, in which the defendant or a third party is any of the subjects enjoying privileges or immunity in the People's Republic of China, the People's Court, before deciding on its acceptance, must submit it to the Supreme People's Court for consideration; if the Supreme People's Court has agreed to accept it, then it will submit its conclusions to the Supreme People's Court. The relevant provisions show respect for diplomatic representatives of foreign states accredited in the PRC and caution in resolving disputes involving foreign persons.
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<5> Notice of the Supreme People's Court on the Relevant Issues concerning the People's Courts to Accept Civil Cases Involving Privilege and Immunity, 2007.
The jurisdiction of the courts in relation to cases involving foreign persons determines the legal system in which people will resolve a dispute <6>. And currently, there is no single consensus in various countries regarding the determination of the jurisdiction of the courts <7>.
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<6> Gronik I. Features of the legal regulation of digital legal proceedings in the Republic of Indonesia // Legal World. 2020. N 11. pp. 54-57.
<7> Kudryavtseva E.V. Proceedings on cases involving foreign persons // Vestnik Mosk. un-ta. Episode 11: Law. 2013. N 4. P. 26.
The determination of the jurisdiction of a civil dispute is of high political and legal importance. In practice, in specific cases, the determination of jurisdiction has a huge impact on the outcome of the trial. The result may differ depending on which jurisdiction the court belongs to. Jurisdiction also has an impact on court decisions that will be recognized and enforced by the relevant foreign courts or not.
The jurisdiction of cases to the courts of general jurisdiction of the People's Republic of China is established by the norms combined in Chapter 2 of the CPC of the People's Republic of China. Section IV contains a separate chapter 24 "Jurisdiction", which sets out additional specific provisions based on general rules. Jurisdiction over a claim brought in connection with a dispute under an insurance contract, as stated in Article 24 of the CPC of the People's Republic of China, belongs to the People's court at the place of permanent residence of the defendant or the location of the insured object.
But according to Article 265 of the CPC of the People's Republic of China, cases related to contractual disputes and other property disputes are within the jurisdiction of the courts at the place of signing the contract, the place of execution of the contract, the location of the object of the claim and the location of the property. The purpose of this provision is to expand the jurisdiction of Chinese courts in resolving disputes related to international commercial agreements and property rights, in the case when the place of residence (location) of the defendants is not located on the territory of the People's Republic of China.
Just as in Article 32 of the Civil Procedure Code of the Russian Federation <8>, the CPC of the People's Republic of China has relevant provisions on contractual jurisdiction, the parties can choose, by agreement between themselves, the territorial jurisdiction for this case before the court accepts it for its production. According to Article 34 of the CPC of the People's Republic of China, the parties to a dispute over a contract or other right or interest in property may, by written agreement, elect a people's court in any place actually related to the dispute. This means that for the application of contractual jurisdiction there are restrictions on the nature of cases that arise from contracts or other property disputes.
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<8> The Civil Procedure Code of the Russian Federation of November 14, 2002 N 138-FZ (as amended on 07/01/2021).
As for cases falling under exclusive jurisdiction, the CPC of the People's Republic of China provides for only three types of cases related to real estate, port operations and inheritance of property. The jurisdiction of these types of cases is held by the courts for the location of real estate, the location of ports and the location of inherited property.
It is worth noting that in order to apply the relevant legal provisions on exclusive jurisdiction, the three types of claims specified in Article 266 must have at least one of the grounds: the place of execution of contracts in the territory of the People's Republic of China or one of the parties must be located in China <9>.
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<9> Wang Lei. On the Improvement of the Rules of Jurisdiction Agreements in Foreign Civil Procedure // Wuhan University International Law Review. 2018. Vol. 4.
Also important are issues related to the provision of legal assistance, with instructions for the delivery of documents, evidence, recognition and enforcement of decisions of foreign courts, etc. <10>, which are regulated by Chapter 27 of the CPC of the People's Republic of China. According to article 261, foreign persons may apply directly or through a foreign State to the intermediate People's Court with a request for recognition and enforcement of foreign court decisions.
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<10> Rusakova E.P. Consideration of private law disputes in the BRICS countries. M., 2018. 302 p.
By the end of 2020, China has concluded bilateral interstate agreements on mutual provision of civil legal assistance with 38 states <11>. Thirty-four of these States (France, Poland, Mongolia, Romania, Russia, Belarus, Spain, Ukraine, Cuba, Italy, Egypt, Bulgaria, Turkey, Kazakhstan, Cyprus, Greece, Hungary, Kyrgyzstan, Uzbekistan, Tajikistan, Morocco, Vietnam, Tunisia, Laos, Lithuania, North Korea, UAE Kuwait, Brazil, Argentina, Peru, Algeria, Bosnia and Herzegovina, Ethiopia) have concluded agreements with China on mutual recognition and enforcement of judgments <12>.
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<11> Frolova E.E. Mechanisms of action of China's monetary policy instruments in the first decade of the XXI century // Prospects for the development of legal science, practice and education in the Asia-Pacific region: mat. International Scientific and Practical conference. Vladivostok, 2015. pp. 174-189.
<12> See: Official website of the Ministry of Justice of the People's Republic of China.
Articles 282 of the CPC of the People's Republic of China and Articles 543-544 of the Explanations of the Supreme People's Court on the CPC of the People's Republic of China are used for the recognition and enforcement of decisions of foreign courts in the People's Republic of China. These provisions provide for the form, content and language of applications, the deadlines for filing and the procedure for consideration by the court of applications, as well as the grounds for a positive decision, etc. When considering a case and the existence of bilateral interstate agreements with these States, the People's Court of the People's Republic of China checks the effectiveness, legality and safety of the decision of foreign courts. In addition, Chinese courts are still considering whether foreign courts have jurisdiction to consider these disputes. Of course, Chinese courts do not have the right to determine this using the CPC of other states, but simply consider the relevant cases for the presence or absence of exclusive jurisdiction of the courts of the People's Republic of China. If there is one, the people's courts will refuse to recognize and enforce the decisions of foreign courts.
If China has not concluded agreements on mutual legal assistance with the relevant States, the People's courts of the People's Republic of China also refuse to recognize and enforce the decisions of foreign courts. However, according to Article 544 of the Explanations of the Supreme People's Court on the CPC of the People's Republic of China, the decisions of foreign courts on divorce are not limited by this rule. Thus, divorce decisions can be recognized without the existence of legal aid agreements, in accordance with the principle of reciprocity <13>. It is worth noting that the People's courts of the People's Republic of China have limited recognition of foreign decisions concerning the division of marital property, parenting, etc.
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<13> Rusakova E.P., Frolova E.E., Zankovsky S.S., Kupchina E.V. Problems of implementation of leadership in dispute resolution of the BRICS countries (on the examples of the Russian Federation, China, India) // 6th International Conference on Education, Social Sciences and Humanities. 2019. P. 754 - 759.
Conclusion. Currently, the judicial system of the People's Republic of China has achieved relative success in civil proceedings. After the introduction of legislative changes, the legal status of foreign persons in the CPC of the People's Republic of China has become more perfect.
