The Civil Procedure Law was adopted by The National People’s Congress in 1991 and governs the procedures under which the court system may be used to settle civil disputes. An Amendment to the law, passed 28 October 2007 to come into effect 1 April 2008, attempts to ensure that rulings made by the Courts are carried out.

In 2006, Chinese courts found that 2.13 million civil case rulings had not been carried out by the due date and almost half of those rulings have still not been implemented.

Positive Changes

In order to address this problem, fines for those who refuse to execute a civil court ruling are increased tenfold from 1,000 to 10,000 Yuan for individual offenders, and from 30,000 to 300,000 Yuan for companies (Article 104). The Amendment also contains provision for those who refuse to cooperate to be detained (Article 103).

Other changes in line with this aim include:

• the circumstances in which a retrial may occur have been widened (Article 179 (3) to (13)
• new procedures clarifying the process to be followed in the event of a retrial application (Article 180), and
• a new provision permitting objection to an enforcement that is considered to be in violation of legal provisions (Article 202). If the court considers the objection to be tenable, the enforcement will be cancelled or corrected. The court’s decision as to the validity of the objection is also subject to scrutiny, making the system more accountable.

Applicants will be allowed to go to the next level court in the event of a lower court’s failure to make an enforcement, widening the ability of an applicant to have an enforcement order applied (Article 203).

The time limit for submission of an application for enforcement has been increased from one to two years. This is in keeping with the overall aim of the amendments to make judgements more enforceable (Article 215).

Enforcement measures have been strengthened. If a person to be enforced not only fails to meet his obligations but also hides or transfers his property, officers are given new powers to act immediately (Article 216). In addition, if a person to be enforced fails to meet his obligations, he must make a report as to his property situation. If he refuses to do this, or makes a false report, the court may fine or detain him (Article 217).

Provisions for the ‘naming and shaming’ of persons failing to comply with obligations specified in a legal document as well as the noting of this on credit records (Article 231).

Other amendments include:

• Under the old law, a party to an action who considered that the judgment had an error was able to apply for a retrial to the court that originally tried the case or to a higher court. Under the new rules, he may only apply to the court at the next higher level (Article 178). This restriction seems out of step with the stated aim of the amendments as it limits options for applications.
• The time limits on retrial applications have been amended to a requirement to make the application within 3 months after the parties knew or should have known that the legal document on which the original ruling was made was cancelled or revised, or if the adjudicating personnel were involved in bribery, embezzlement or favouritism. This may serve to limit opportunities for retrial applications in this area. The original two year time limit still applies to other cases (Article 184).

Missed Opportunities

The Civil Procedure Law is considered by many to have a solid framework but as it preceded China’s market economy it lacks the scope to deal with the full range of economic disputes arising from economic activity. In addition, the procedure is out of step with China’s overall legal development as well as international standards. To this end, legal experts and leading academics had requested amendments to address the following issues:

• A need for procedures for small claims to allow ordinary people to settle disputes quickly and easily.
• Clearer direction on the application of the existing summary processes.
• The development of improved procedures relating to election related matters, declaration of death of a missing person and declaration of status of ownerless property.
• More efficient utilisation of limited resources in the court systems, such as a change from a three judge trial to a single judge system.
• The adoption of the rules of evidence from Supreme People's Court Regulations into formal legislation.
• The establishment of uniform rules for evidence, clarifying how and what kinds of evidence are admissible.

It does not appear that the amendments passed in October 2007 are as far reaching as hoped and critics doubt whether there is sufficient political will to implement all the required changes to the Civil Procedure Law. Although the changes have gone a long way to strengthening enforcement powers, in other respects, they may end up being seen as nothing more than a missed opportunity.

However, you should be aware that judgments made in civil cases are now more likely to be upheld and there are processes that can be followed in the event that a ruling is unenforced.