FAQs on Financial Services and Regulation
1. What is Catalogue for the Encouragement of Foreign Investment Industries for (‘Catalogue’)?
The Catalogue is issued by China’s Ministry of Commerce and National Development and Reform Commission. As we all know, in China not all of the industries are open to the foreign investment. In another word, foreign investment is forbade to entry some of the industries like education and some of the industries are only open to the foreign investment under some particular situations like internet. And also there are some industries that are totally open to the foreign investment like consulting.
The Catalogue is the nation’s principle document for regulating foreign investment in China and is very important to a foreign company or individual that is seeking business opportunities in China.
2. What changes the 2011 Revision has made to the Catalogue (2007 Revision)?
On December 24, 2011, China’s Ministry of Commerce and National Development and Reform Commission released a new Catalogue. This revision removes a number of investment barriers previously applicable to foreign investors and promotes investment in emerging industries.
Major additions to the Catalogue’s list of areas ‘encouraged’ for foreign investment include:
• Certain waste management services such as technology for offshore oil spills and wastewater treatment;
• Manufacture of batteries and key components for new energy vehicles;
• Motor vehicle charging stations;
• Development and manufacturing of next generation internet system equipment;
• Venture capital business; and
• Intellectual property rights services.
Published by cyao on February 1st, 2012 tagged Uncategorized | Comment now »
FAQs on EB-2 Visa
Q: What is the new update for EB-2 Visa for Chinese?
A: The employment-based second preference category for Indian and Chinese nationals is scheduled for another significant advancement on February 1, 2012. All applicants who have priority dates on or before January 1, 2010, may submit adjustment of status applications (Form I-485) as soon after February 1, 2012, as possible.
Q: What is the official visa date for all countries right now?
A:
Published by cyao on January 31st, 2012 tagged Uncategorized | Comment now »
FAQs on the implications of the new PRC Social Insurance Law
Q: Who do the changes affect?
A: The new regime applies to all employers and individuals in China, including employees, self-employed individuals with no employees and part-time and flexible employees.
Individual contributions are transferable for cross-region employment and contributions made by employers are integrated into the social insurance fund of the region where the employer is registered.
Q: What are the Collection measures?
A: Mandatory collection powers are granted to the social insurance agencies to enable them to collect the premiums including a power to:
order the bank or financial institution of the employer to transfer any unpaid contributions by obtaining an administrative order from competent government authorities;
request the employer to provide collateral and sign an agreement for delayed payment; and
apply to the court for seizing and auctioning the employer’s property.
These measures are based on the mandatory registration of the employer with the local agency within 30 days of the business licence being issued to the employer or any change to the registration items (e.g. new employee name list).
Q: What are the Penalties?
A: Employers who fail to comply with their obligations will be exposed to greater penalties. A fine equivalent to 1-3 times the outstanding contributions will be imposed for failure to register for social insurance and for failure to remedy this within a specific time-limit. Those personnel who are directly responsible may also be held liable. A late payment fee of 0.05% per day will be charged should an employer fail to make contributions in full and on time.
Published by cyao on January 31st, 2012 tagged Uncategorized | Comment now »
FAQs on the Trial System of China
Q: What are the Organization and Responsibilities of People’s Courts?
A: According to the current Constitution, and the Law on the Organization of People’s Courts, People’s Courts represent the main trial organ of the state. Organizationally, this court system consists of local courts, special courts and the Supreme Court, with all the first two subject to the supervision of the latter. Local courts are established in accordance with the administrative divisions, while special courts are set up where necessary.
1. Local courts are divided into three levels: Grassroots, Intermediate and Higher.
Under the Law on the Organization of People’s Courts, grassroots-level courts consist of tribunals
in counties/autonomous counties, cities without administrative districts, or administrative districts of cities. Their responsibilities are:
• Try criminal, civil and administrative cases as courts of first hearing, except where otherwise provided for by law. Cases deemed to be of a serious nature that should be handled by superior courts can be referred to those superior courts;
• Handle civil disputes and misdemeanors that do not need trials;
• Guide the work of the People’s Arbitration Committees.
To facilitate lawsuits, grassroots courts may set up tribunals, which are not trial units, but have the responsibility to hear general civil and misdemeanors, guide the work of People’s Arbitration Committees, publicize laws and regulations, and handle petitions. Their judgments and decisions represent the judgments and decisions of the grassroots People’s Courts.
Intermediate courts are those set up in prefectures, cities directly under provinces (autonomous regions and municipalities directly under the central government) and districts in the four municipalities directly under the central government (hereinafter referred to as “municipalities”). Their responsibilities include:
• Try the following categories of cases:
a) First-hearing cases under their jurisdiction, as prescribed by law. According to the Law on Criminal Procedures, these cases include those involving national security; criminal cases that may involve life imprisonment or the death penalty; criminal cases committed by foreigners or cases involving Chinese citizens violating the lawful rights and interests of foreigners. According to the Law on Civil Procedures, civil cases heard by intermediate courts are major foreign-related cases; cases of major implications within their jurisdictions; and cases that intermediate courts are ordered to hear by the Supreme Court. In addition, according to the Law on Administrative Procedures, intermediate courts are authorized to hear the following cases: verification of patent rights; customs handling; suits against administrative actions taken by State Council departments or governments of the provinces (autonomous regions, municipalities); other important and complicated cases;
b) First-hearing cases transferred by grassroots courts;
c) Cases appealing or protesting the verdicts and decisions of grassroots courts.
For criminal, civil and administrative cases that intermediate courts deem to be of a serious nature, the intermediate court may request that the cases be transferred to superior courts.
• Supervise the performance of grassroots courts within their jurisdiction. They have the power to examine or order grassroots courts to re-examine verdicts or decisions issued by those courts that have already taken effect but that have been found to contain errors.
According to the law on court organization, Higher Courts are set up in provinces (autonomous regions and municipalities). Their responsibilities include:
• Try the following categories of cases:
a) Criminal, civil and administrative cases of major proportions and complications under their jurisdiction, as provided for by the law;
b) First-hearing cases transferred by lower courts;
c) Cases appealing or protesting the verdicts and decisions made by lower courts. Higher courts in areas where a maritime court is located are authorized to try cases appealing the verdicts and rulings made by the maritime court;
d) Protested cases submitted by prosecutors in accordance with trial-monitoring procedures.
• Review first-hearing cases involving the death penalty ruled by intermediate courts where the accused renounces the right to appeal. If the Higher Court raises no objection to the death penalty, it then files the case with the Supreme Court for verification; if it disagrees with the death penalty ruling, it can either re-examine the case or refer the case back to the Intermediate Court.
• Review cases submitted by intermediate courts involving a death penalty with two years’ reprieve.
• Approve certain death-penalty cases as authorized by the Supreme Court.
• Supervise trials by lower courts. For verdicts or judgments passed by lower courts that have been found to contain errors, higher courts are authorized to hear or ask lower courts to reexamine the case.
2. Special courts are courts set up in special departments for special cases wherever necessary. Currently, China has special courts handling military, maritime, railway cases.
Military courts are set up at three levels: grassroots; Great Military Region, Services and Arms; and the PLA Court.
The PLA Court is the supreme military court whose responsibilities include:
• Try first-hearing cases involving crimes committed by individuals above the division commander level.
• Try foreign-related criminal cases.
• Try second-hearing cases, verification and review of cases involving death penalty.
Great Military Region and Services and Arms Courts are intermediate courts set up in great military regions, the navy, the air force, the Second Artillery Army and the PLA General Headquarters. Their responsibilities include:
• Try first-hearing cases involving crimes committed by individuals at the deputy division commander and regiment level.
• Try cases that may involve death penalty and cases under their jurisdiction as authorized or designated by superior military courts.
• Try cases appealing or protesting rulings or verdicts passed by lower courts.
Grassroots military courts consist of tribunals set up in armies, provincial military regions, naval fleets, and air forces within Great Military Regions and in army units deployed in Beijing directly under the headquarters. Their responsibilities include:
• Try cases involving crimes committed by individuals under the battalion commander level and first-hearing cases that may involve a penalty up to life imprisonment.
• Try first-hearing cases under its jurisdiction as authorized or designated by superior military courts.
Maritime courts are special courts set up to try first-hearing maritime or sea-shipping cases for the purpose of exercising judicial jurisdiction over maritime affairs. In May 1989, the Supreme People’s Court made a Decision on the Scope of Cases to Be Handled by Maritime Courts. That decision specified that maritime courts handle maritime or commercial cases between Chinese legal persons/citizens, between Chinese legal persons/citizens and foreign legal persons/citizens, and between foreign legal persons/citizens. These cases fall into 14 subsets in five categories:
• Ten categories of cases involving maritime torts and disputes, including: damage claim cases involving collision of vessels; damage claim cases involving vessels colliding into buildings and facilities on the sea, sea-linked waters and ports; claim cases involving vessels discharging or leaking hazardous materials or waste water causing water pollution or damaging other vessels or cargo; claim cases involving casualties in the course of sea-borne shipping or operations on the sea, sea-linked waters and ports.
• Fourteen categories of commercial cases, including: cases involving shipping contract disputes; contract dispute cases involving passengers and baggage; cases involving seaman labor contract disputes; cases involving maritime rescue and salvage contract disputes; cases involving maritime insurance contract disputes.
• Eleven other categories of maritime cases, including: cases involving major liabilities in shipping and maritime operations; cases involving port operation disputes; cases involving general average disputes; cases involving offshore development and exploitation; cases involving the ownership, proprietorship, mortgage or preferred maritime right of claim of vessels; administrative cases involving maritime or inland river authorities; and cases involving maritime fraud.
• Five categories of cases involving maritime enforcement, including: cases involving compulsory enforcement requested by maritime and inland river authorities; cases involving applications for enforcement of arbitration awards filed by litigants; cases involving applications filed with Chinese maritime courts by litigants for recognition and enforcement of arbitration awards given by arbitration agencies in foreign countries or regions, in accordance with provisions of the convention on recognition and enforcement of foreign arbitration; cases involving applications filed by litigants to Chinese maritime courts for assistance in enforcement of rulings given by foreign courts, in accordance with judicial assistance accords China signed with foreign countries, or with the principle of reciprocity.
• Two categories of cases involving requests for preservation: cases involving pleas for detaining vessels prior to the opening of trial; cases involving pleas for detaining cargoes aboard ships or fuel for the ships prior to the opening of trial.
Railway transportation tribunals are special courts set up along railways that try the following types of cases:
• Criminal cases investigated by railway public-security authorities and filed by railway prosecutors.
• Cases involving economic disputes. In accordance with rulings of the Supreme People’s Court, these cases fall into 12 categories: cases involving railway cargo transportation contract disputes; cases involving disputes over the execution of international railway collaboration contracts; cases involving economic disputes within the railway system; cases involving torts that have resulted in damages to railways in violation of railway safety regulations; and tort cases involving human and property losses caused by railway operations and dispatch operations, where the litigant chooses to bring action to the railway tribunal.
3.The Supreme People’s Court is located in Beijing, capital city of China. It is the highest judicial organ, exercising the highest judicial power while supervising lower courts and special courts. The Supreme People’s Court is presided over by one president and a number of vice presidents, chief justices and justices. The Supreme People’s Court exercises the following powers:
• Supervise lower courts and special courts. For judgments and rulings passed by lower and special courts that have been found to contain errors, the Supreme People’s Court have the power to hear the cases or order lower courts to reexamine the cases.
• Try the following cases:
a) First-hearing cases falling under its jurisdiction as prescribed by the law or as deemed necessary by the court itself. The Law on Criminal Procedure stipulates that the Supreme People’s Court has first-hearing right to try criminal and civil cases of major proportions nationwide. The Law on Administrative Procedure provides that the Supreme People’s Court has first-hearing jurisdiction over administrative cases of a material and complicated nature.
b) Cases appealing or protesting rulings of higher courts and special courts, and protested cases submitted by the Supreme People’s Procuratorate in accordance with legal procedures.
• Approve death penalty cases.
• Issue judicial interpretations on how to apply law and writs.
• Lead and manage judicial administration of courts at all levels across the country.
Q: What is the Judge System in China?
A: The judge system, a major component of the judiciary, refers to all the rules and institutions related to the election and qualification of judges, forms of election, tenures, rewards and penalties, and salary and compensation of judges. China promulgated a Judge Law on February 28, 1995, which contains 17 chapters and 42 articles.
1. Qualifications of Judges
Judges exercise state judicial power in accordance with law. They include presidents and vice presidents of courts at various levels, members of judicial committees, presidents and vice presidents of tribunals, judges and assistant judges. The responsibility of judges is to participate in collegiate panels or be independent judges at trials.
Judges are elected with the following qualifications:
• A citizen of the People’s Republic of China;
• At least 23 years of age;
• Supports the Constitution of the People’s Republic of China;
• In good political, professional and moral standing;
• In good health;
• A graduate of law from an institution of higher learning, or a non-law graduate from an institution of higher learning with in-depth knowledge of law, with two years of working experience; or holders of a bachelor’s degree in JD with a full year of working experience; those holding a Master’s or Ph.D. degree in JD are not subject to the working-experience limit described above.
Those that have been penalized for crimes or have been dismissed from their public offices shall not be elected judges.
In addition, according to the Law on the Organization of People’s Courts, presidents, vice presidents, presiding judge and deputy presiding judge of tribunals, judges and assistant judges, as well as People’s Assessors shall be citizens with voting rights and rights of being elected, 23 years of age and with legal knowledge.
2. The Appointment and Removal of Judges
The Constitution and laws provide for the powers and procedures for appointing and removing judges.
Presidents of courts at local levels are elected and removed by the People’s Congress at the same level and the tenure of the presidents is the same as the People’s Congress; the president nominates the vice president, members of the Judicial Committee, presiding judges, deputy presiding judges and judges for appointment and removal by the Standing Committee of the People’s Congress at the same level. Assistant judges of a court are appointed and removed by the president of the court. Judges sitting at special courts are elected and removed with procedures separately set forth by the Standing Committee of the National People’s Congress.
Primary judges and assistant judges are recruited from among qualified candidates through open examination. The president, vice president, members of the Judicial Committee, presiding judge and deputy presiding judge shall be selected from among candidates who have practical working experience.
Judges shall not concurrently hold positions in the Standing Committee of the People’s Congress, executive offices, the procuratorate, business, non-profit institutions, or in the legal profession.
Judges who have lost their citizenship, been found to be incompetent, been unable to perform their duties for a protracted period of time due to disciplinary violations, criminal records or health reasons, shall be removed from their position in accordance with legal procedures.
3. Safeguards for Judges
The Judge Law provides judges with the following safeguards:
• Professional safeguards: Judges shall be granted adequate powers and working conditions in order to perform their duties; they shall be free from interference in exercising their judicial powers from any administrative authorities or individual; they shall not be removed, demoted, dismissed or disciplined unless for statutory reasons and procedures.
• Salary safeguards: Judges shall receive remuneration for their performance of duties and enjoy insurance and other benefits.
• Corporal safeguard: Judges shall receive legal protection for their corporal, property and residential safety.
• Others: Judges shall have the right to resign, petition or accuse, or participate in training.
4. Promotions
Judges are divided into 12 levels, with the president of the Supreme People’s Court being the Chief Justice and those between Level 2 and 12 being labeled Justice, Senior Judge and Judge. The level of seniority is determined by the judge’s position, performance, professionalism and seniority. Promotions are based on annual performance reviews, which are conducted by the courts where the judges serve. Performance reviews shall be conducted in an objective, impartial manner and combine evaluations by both superiors and subordinates.
5. Rewards and Penalties Judges are rewarded for their outstanding performance and contributions. Rewards can be public recognition of performance, Third Reward, Second Reward, First Reward and the conferring of an honorary title.
Judges must not engage in any of the following acts: disseminate information harmful to the reputation of the state; participate in illegal organizations; participate in anti-government gatherings, demonstrations and protests; participate in strikes; embezzle or take bribes; practice favoritism in breach of law; extort confessions by torture; conceal or forge evidence; leak state secrets or confidential information related to judicial proceedings; abuse power to violate the lawful rights and interests of citizens, legal persons or other organizations; neglect duties resulting in wrong rulings or serious damages to the litigant(s); purposefully delay proceedings; abuse power to seek profit for themselves or others; engage in business activities; meet in private with litigants and their representatives and accept their gifts and favors.
Judges who engage in any of the above acts will be disciplined to varying degrees. These can be warnings; a record of demerit in personal files; a record of a major demerit; demotion; removal from position; dismissal from office. A removal from position is accompanied by a lowering of salary and rank; those who have committed a crime will be prosecuted for their criminal liabilities.
6. Other Provisions
Judges enjoy rights of retirement, resignation, training, petition and complaint. After retirement, they shall be entitled to pension insurance and other benefits as prescribed by the state.
Q: What are the forms of Court Trials?
A: According to the Law on the Organization of People’s Court and other laws, trials of People’s Courts take the following forms:
1. Sole Judge Court
This kind of court is presided over by one judge for trying simple cases. Legally speaking, these cases include:
• First-hearing criminal cases handled upon complaint and other minor criminal cases;
• Simple civil cases and cases involving economic disputes handled by grassroots courts and their detached tribunals;
• Cases tried using special procedures, except for cases involving voters’ qualification or other complicated cases, which should be tried by a collegiate panel.
2. Collegiate Panels
Collegiate panels consist of at least three judges or a combination of judges and People’s Assessors. First-hearing criminal and civil cases are generally tried by a collegiate panel except for those simple cases for which a sole judge is sufficient. First-hearing administrative cases, without exception, are handled by a collegiate panel; second-hearing, reexamined cases and death penalty verification cases are handled by a collegiate panel.
A collegiate panel, as a basic form of the People’s Court, is not inflexible in its composition; rather, its members are appointed on a case-by-case basis. The president or the presiding judge designates a judge to be the chief judge. When the president of the court or the presiding judge of a tribunal themselves attend a case, they serve as the chief judge concurrently. When assessing a case, the collegiate panel should follow the principle of the minority submitting to the opinions of the majority when disagreement arises. The opinions of the minority, however, should be recorded in the court log with signatures of members of the panel.
3. Judicial Committee
According to the Law on the Organization of People’s Courts, courts at all levels set up a Judicial Committee, the members of which are nominated by the president for appointment by the People’s Congress at the same level. The Judicial Committee is presided over by the president of the court and its responsibilities include:
• Deliberate on major, complicated cases;
• Summarize judicial practices;
• Discuss other judicial issues.
Published by cyao on January 31st, 2012 tagged Uncategorized | Comment now »
FAQs on Arbitration System of China
Q: What is the Arbitration?
A: Arbitration is a legal arrangement whereby both parties to a civil (commercial) dispute reach an agreement to voluntarily submit the case to a third party to adjudicate in accordance with specified procedures and rules and following the principle of impartiality, and whereby both parties are bound to enforce the ruling.
Arbitration is usually a non-governmental trade activity; it represents a private action. Together with composition, mediation and action, it is a common way to settle civil (commercial) disputes. Arbitration, however, is subject to state supervision. The State intervenes through courts in accordance with legal provisions of the place where the arbitration takes place in the validity of the arbitration award, the making of arbitration procedures, the enforcement of awards and in the case of involuntary enforcement by a party. Arbitration, therefore, is a judicial activity and a part of China’s judicial regime.
Q: What are the basic principles?
A:
1. Voluntarism:
Parties to a dispute should voluntarily reach an agreement to resolve their dispute through arbitration. An arbitration committee shall not consider a case without application from a party to the agreement.
2. Independence:
Arbitration should be independent of any interference from administrative bodies, social organizations or individuals.
• An arbitration agency is not part of the administrative apparatus.
• Arbitration institutions are established geographically, independent from each other; they have no affiliation among themselves.
• Arbitration committees, arbitration associations and arbitration tribunals are also independent from each other, with arbitration tribunals adjudicating cases free from interference by arbitration associations or arbitration committees.
• Courts must exercise the power of supervision over arbitration activities; however, arbitration is not dependent on adjudication and arbitration institutions are not dependent on courts.
3. Legality and Impartiality:
The Arbitration Law provides that arbitration should be based on facts, comply with laws and resolve disputes in an impartial and reasonable manner.
Q: What are the bodies?
A:
1. Arbitration Association
China Arbitration Association is a self-disciplinary organization of arbiters. It supervises arbitration committees and their members and the behaviors of arbiters in accordance with their constitution. Arbitration committees are members of the China Arbitration Association. The constitution of the association is made by a national congress. It makes arbitration rules in accordance with the Arbitration Law and the Civil Procedure Law.
2. Arbitration Committees
Arbitration committees are executive bodies established in capital cities of provinces, municipalities and autonomous regions. They can also be set up in other cities if necessary.
Arbitration committees are formed with members from government departments and chambers of commerce and registered with the judicial administration of the province (municipality, autonomous region).
An arbitration committee consists of one chairman, two-to-four vice chairmen, and seven to 11 members. The chairman, vice chairmen and members should be legal and trade experts and individuals with working experience. The number of legal and trade experts should not be less than one third of the membership of an arbitration committee.
Arbiters should meet the following qualifications:
• Eight full years in the arbitration field;
• Eight full years in the legal profession;
• Eight full years as judge;
• Specialized in legal research and teaching and holding a senior professional title;
• Familiar with legal knowledge, specializing in economic and trade activities and holding a senior professional title or with equivalent qualifications.
An arbitration committee has different panels of arbiters for different trades.
3. Arbitration Tribunals
After taking up an arbitration case, an arbitration committee does not directly arbitrate the case; instead, it forms an arbitration tribunal to adjudicate the case.
Organizationally, an arbitration tribunal can be a collegiate panel or a sole arbitrator. An arbitration panel should be composed of three arbiters, one of whom should the chief arbiter who presides over the arbitration.
In case the parties agree to form a tribunal of three arbiters, each party should designate, or ask an arbitration committee to designate, one arbiter, and the third arbiter, who should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties, should be the chief arbiter. In case the parties agree to form a sole-arbiter tribunal, the arbiter should be jointly selected by the parties or designated by the arbitration committee chairman jointly authorized by the parties.
Q: What are the essential Components of Arbitration?
A:
1. Arbitration or Adjudication
This practice represents a respect for the parties’ right of choice as to the way to settle their dispute. It means:
If the parties have reached an agreement on arbitration, it rules out the jurisdiction of the court over the dispute; the parties can only apply for arbitration to an arbitration body rather than bringing action to the court.
However, courts may have jurisdiction over disputes that the parties have already signed an agreement about under special circumstances. These include:
• The arbitration agreement is invalid or its validity has expired;
• One party brings a suit to the court and the other party answers the lawsuit and mounts a substantial defense that does not challenge the jurisdiction of the court over the dispute. In such cases, the parties are understood to have renounced the original arbitration agreement and the court has judicial power to adjudicate the case.
2. One Instance Being Final
This means that the ruling takes effect immediately upon pronunciation. Even if the parties are not happy with the ruling, they cannot file a suit to the court for the same dispute or apply for arbitration or reconsideration to arbitration organizations. Instead, they should automatically implement the ruling; otherwise the other party has the right to apply to the court for enforcement.
As a remedy to the one-instance-being-final practice, however, parties may apply to the court for a review and verification of the case and annulment of the arbitration ruling if they believe it is indeed wrong and conditions for a legal revocation have been met.
China International Economic and Trade Arbitration Committee
The China International Economic and Trade Arbitration Committee is the only arbitration agency in China that handles international economic and trade disputes. It is headquartered in Beijing, with branch offices in Shenzhen and Shanghai.
Published by cyao on January 31st, 2012 tagged Uncategorized | Comment now »
FAQs on Mediation System of China
Q: What is the definition of Mediation?
A: Mediation is an effort by a third party to encourage parties to a dispute to voluntarily reach an agreement to resolve their dispute.
Q: What are the types of Mediation?
A: There are currently four types of mediation practices in China:
• Civil mediation: Mediation by People’s Mediation Committees outside the court.
• Judicial mediation: Mediation by a court of law in civil and economic disputes and minor criminal cases inside the court. For marital cases, inside-court mediation is a necessary procedure. Whether or not to seek judicial mediation is for litigants to decide. Mediation is not a necessary procedure. A court’s mediation document is as valid as its verdict.
• Administrative mediation: This can be outside-the-court mediation by grassroots governments such as a township government in ordinary civil disputes, or outside-the-court mediation by government departments in compliance with legal provisions in specific civil disputes, economic disputes or labor disputes.
• Arbitration mediation: Mediation by arbitration bodies in arbitration cases. Arbitration is called upon only if mediation fails to resolve the differences. This is also an outside-the-court mediation.
Civil Mediation
1. Nature, Mission and Principles
This system originated in ancient China and took shape in the 1930s when China was locked in a war against Japanese aggression. It was formalized in the early 1950s when the People’s Republic was founded.
a) Nature
Article 111 of the Constitution of the People’s Republic of China states, “People’s Mediation Committees are a working committee under grassroots autonomous organizations – Residents Committee, Villagers Committee – whose mission is to mediate civil disputes.”
Essentially, these committees are a supplement to the judicial system, an autonomous arrangement for citizens to resolve their own disputes. It is a legal practice with Chinese characteristics.
b) Mission
Article 5 of the Regulations for the Organization of People’s Mediation Committees states, “The mission of People’s Mediation Committees is to mediate civil disputes and, through such mediation, publicize laws, regulations, rules and policies and educate citizens to abide by laws and respect universally accepted morals.”
c) Basic principles
• Reasonable and legal;
• Voluntary, equal;
• Respect for the right to sue.
2. Form of Organization
a) People’s Mediation Committee
The Constitution and laws provide that the People’s Mediation Committees are non-governmental organizations under Villagers Committees and Residents Committee for mediating civil disputes. They operate under the guidance of grassroots government and courts.
b) People’s Mediators
According to law, People’s Mediators should have the following qualifications:
• Impartiality;
• Close to the people;
• Enthusiastic about mediation;
• Knowledgeable about legal and policy issues;
• Be adult citizens
c) Judicial Assistants
According to the Regulations for the Organization of People’s Mediation Committees, People’s Mediation Committees work under the guidance of grassroots governments and courts. Grassroots governments are set up at the township level. Judicial assistants are responsible for helping People’s Mediation Committees in their mediation work.
Grassroots courts supervise mediation committees through their tribunals. They invite members of the committee to participate in court-mediated cases, audit trials, help analyze cases and exchange experiences.
Q: What are the procedures?
A: a) Mediation procedures
• Accept a dispute;
• Prepare for mediation;
• Mediation;
• Reach agreement;
• Close of mediation
b) Ways of mediation
Mediation can be direct, open, common or joint.
Mediation techniques include role-modeling, reasoning and resort to law.
People’s Mediation Committees should not just passively mediate disputes; rather, they should actively seek to prevent and reduce civil disputes and prevent such disputes from escalating.
Judicial Mediation
Article 35 of the Law on Civil Procedures of the People’s Republic of China states, “When handling civil cases, courts of law should, based on consent of the litigants, mediate the cases on the merits of the cases themselves.”
1. Ways of Mediation
Article 86 of the above-mentioned law provides that when mediating cases, courts may be presided over by a sole judge or by a collegiate panel and mediation should take place on the spot as much as possible. Courts may notify, in a simple way, the litigants and witnesses to appear in court.
Article 87 also specifies that courts may invite relevant entities or individuals to assist, and the invited entities or individuals should assist the courts in mediation.
2. Mediation Agreement
Article 88 stipulates that an agreement between the litigants must be arrived at through the consent of all parties and should not be imposed on them; the contents of the agreement should not contravene the law.
3. Mediation Document
a) Generation of the mediation document
Article 89 of the Civil Procedure Law says that if an agreement is reached between the parties after mediation, the court should prepare a mediation document, which should specify what the dispute is about, the facts, and the result.
The mediation document should be signed by the judge and the clerk and affixed with an official seal of the court. Then, it should be delivered to the parties. It becomes legally binding after the parties sign it.
b) When a mediation document is not required
Article 90 of the Civil Procedure Law says that the court may choose not to prepare a mediation document under any of the following circumstances:
• A divorce case that ends up with reunion through mediation;
• Adoption cases where the relation of adoption is sustained through mediation;
• Cases that are enforceable immediately;
• Other cases where a mediation document is not required.
Agreements for which a mediation document is not needed should be recorded in the court log and will become legally binding upon signature of the parties, judges and the clerk.
Published by cyao on January 31st, 2012 tagged Uncategorized | Comment now »
FAQs on the Public Notary System of China
Q: What is the Public Notary System of China?
A: Public notaries are persons accredited by the state to witness civil matters for legal purposes. In the past, public notaries were state offices representing the state in witnessing legal relations in civil matters. State notary offices, at the request of applicants, notarize legal acts and the truthfulness and legality of legal documents and facts in order to protect public property and safeguard the lawful rights and interests of citizens. Since October 1, 2000, the Ministry of Justice has implemented a plan to reform the notary system. Under the new scheme, public notary offices are no longer administrative bodies; rather, they are non-profit entities with a legal-person status that independently conduct notary business to meet market demand and assume full responsibility for their operations. In the future, the state will no longer approve the establishment of public notary offices as administrative bodies. Public notaries will be recruited openly through examinations administered by the Ministry of Justice.
Q: What are the scopes of Business?
A:
• Notarize civil legal acts such as contracts, trusts, wills, gifts, division of property, and adoption of children;
• Notarize facts that amount to civil legal acts such as birth, death, marriage, divorce, kinship, identity, degree, and experience;
• Notarize documents that amount to civil legal acts such as authenticity of signatures and seals on certificates, consistency of copies of certificates, excerpts, translations and photocopies with the originals;
• Notarize the enforceability of creditor documents such as repayment agreements and contracts on recovery of debts;
• Auxiliary business, such as preservation of evidence, maintenance of wills or other documents, drafting notary documents on behalf of clients, notarizing the opening of lottery draws, etc.
Q: What are the notarized documents are good for the following purposes?
A:
• Evidence. Article 67 of the Civil Procedure Law states, “Legal acts, legal facts and documents that have been notarized through legal procedures should be regarded as a basis for establishing facts, except where opposing evidence is sufficient to overrule the notarized documents.”
• Enforceability. At present, this is limited only to the recovery of debts and goods. Liability documents notarized by public notaries are enforceable; if one party fails to comply, the other party can apply to the local grassroots court that has jurisdiction for enforcement.
• Legality. This means certain legal acts take effect and become legally binding only after they are notarized. These include adoption of children and marriage registration between Chinese citizens and foreigners.
• Extraterritoriality. Notarized documents are legally valid outside China. This is an extension of the inherent legal effect of notarized documents abroad. According to international practice, notarized documents sent by Chinese citizens and legal entities for use abroad can take legal effect and be accepted by the host country only after they are certified by the Chinese Foreign Ministry and Foreign Affairs Offices of the provinces, autonomous regions and municipalities or foreign embassies or consulates in China.
Q: What are the procedures?
A: Public notary offices and persons applying for notarization should observe the following procedures:
1. Application and Acceptance of Applications
Except for wills and adoption, which require the applicant to go to the public notary office in person, citizens or legal persons can authorize an agent to handle the notarization procedures on their behalf. Applications should be filed with a public notary office that has jurisdiction and an application form should be filled out and be affixed with a signature or seal. Applications should come with other supporting documentation such as ID, letter of authorization, documents to be notarized, property ownership certificates or other materials. The public notary office should make a preliminary decision whether to accept the application or not upon receipt of application documents.
2. Review
An important link in notarization, public notaries should carefully review the number of applicants, identity, qualifications, capability of civil acts, intentions of applicants and applicable rights. They should also verify whether the acts, facts or documents to be notarized are true and legal, whether the documents to be notarized are complete, whether the wording is accurate, and whether the signature or seal is complete.
3. Certification
Public notaries should produce a public notary certificate for qualified applicants.
4. Special Procedures
These refer to procedures required for special types of public notarization, such as tendering and bidding, opening of lottery draws and auction bids. In such cases, public notaries should be at the scene themselves and read a public notary statement regarding what is truthful and legal. Furthermore, they should produce a notary document and deliver it to applicants within seven days of notarization.
5. Reconsideration
Applicants who object to decisions given by a public notary office not to accept an application, refuse to notarize or withdraw a public notary document may apply within a specified period of time to the judicial authorities for reconsideration; those who object to the reconsideration decision may file a suit to a court of law within the specified period of time.
Published by cyao on January 31st, 2012 tagged Uncategorized | Comment now »
FAQs on International Civil Litigation in China
Q: What is the Jurisdiction of the Chinese People’s Courts in International Civil Litigation?
A: 1. General Territorial Jurisdiction—Defendant Domicile
2. Specific Territorial Jurisdiction—Conduct and Property
3. Consensual Jurisdiction—Parties’ Choice or Consent
4. Exclusive Jurisdiction in the Chinese Courts
Q: What are the basic choice-of-law rules that the people’s courts currently apply?
A: 1. Choice of Law in Contract—Party Autonomy
2. Applicable Law in Torts—Lex Delicti
3. Law Governing Real Property—Lex loci rei sitae
4. Law Determining Civil Capacity—Lex Personalis
Published by cyao on January 31st, 2012 tagged Uncategorized | Comment now »
FAQs on Practices and Compliance Management on Special Employees
Q: What is the role of Rules and regulations (including employee handbook)?
A: “Nothing can be accomplished without norms or standards.” Rules and regulations (including employee handbook) are helpful for the enterprises to reasonably manage their staff; and effective and practical rules and regulations can effectively expand the enterprises’ autonomous rights for employing the employees and make their labor relationship harmonious.
Q: What are the risks during the rules and regulation of a company?
A: In fact, the rules and regulations of most enterprises have such illegal, invalid, useless and contradictory contents and situations; and these contents and situations hiding in all kinds of rules and regulations with fine beautiful bindings have become many hidden troubles. If you can’t timely eliminate them, they will break out sooner or later and attack the enterprises to a passive and adverse land. In addition, because of the constant updating of the laws and regulations, those laws and regulations which had been strictly checked will also be from no problems to many problems if you can’t timely adjust and keep pace with the Times.
Published by cyao on January 30th, 2012 tagged Uncategorized | Comment now »
The 10th edition of the International (Nice) Classification of Goods and Services
The 10th edition of the International (Nice) Classification of Goods and Services for the purposes of the registration of trade marks comes into effect on 1 January 2012. China Trademark Office has announced the adoption of the 10th edition of Nice Classification. Lehman, Lee & Xu’s Trademark Attorneys now are following up the new edition in our daily work as from Jan. 1, 2012.
LEHMAN, LEE & XU’s trademark services include a holistic approach to problem solving. As a full-service firm, we counsel our clients with their entire business strategies in mind, bringing in team members who specialize in taxation, administrative regulation, asset valuation or other areas as needed. We handle trademarks from “cradle to grave” and cover everything from registration and initial strategies through enforcement and assignments/transfers. We assist our clients in the selection and clearance of appropriate trademarks, prosecution of trademark applications in China and abroad and maintaining and enforcing our clients’ trademark portfolios. All of our trademark attorneys are licensed with the China Trademark Office. Our attorneys handle numerous proceedings, such as non-use cancellations, revocations, oppositions, re-examinations, pledges, and well-known trademark petitions before the China Trademark Office and other regulatory bodies as well as enforcing trademark, trade dress, unfair competition and related claims in judicial, quasi-judicial and administrative actions. Our trademark attorneys are also involved in all aspects of transactional trademark work, including negotiating and drafting licensing, distribution and franchise agreements. We regularly advise and counsel our clients in the acquisition and sale of trademark portfolios and individual brands, including as part of larger merger transactions. Our trademark clients range from small international trading companies to large multi-national corporations.
Some classifications have changed. For example, dietary and nutritional supplements are now classified in class 5 (previously classes 29 and 30); nappies will now fall in class 5 (previously 16 and 25); and game consoles of all types now fall in class 28 (previously “games (apparatus for —) adapted for use with an external display screen or monitor” were in class 9).