Perspective | A Guide to Key Points for Foreign Natural Persons in Litigation in China
Published:
2024-11-05
In the context of globalization, China's legal system is becoming increasingly open, and more foreign individuals are involved in legal disputes within the country, necessitating the hiring of Chinese lawyers to handle these matters. This article will introduce the procedures for foreign individuals to appoint agents during litigation in China, as well as the preparation of evidence, with the aim of improving the efficiency of handling such cases.
In the context of globalization, China's legal system is becoming increasingly open, and more and more foreign individuals are involved in legal disputes within China and need to entrust Chinese lawyers to handle them. This article will introduce the procedures for entrusting agents, evidence preparation, and other matters for foreign individuals participating in litigation in China, with the aim of improving the efficiency of handling such cases.
1. Handling of Entrustment Procedures
(1) Foreign parties within the territory
1. Sign the entrustment agreement and have it notarized by a domestic notary institution.
Generally, the foreign party needs to bring their passport, the entrustment contract signed with the law firm, and the lawyer's practicing certificate.
2. Sign the power of attorney in the presence of a judge of the people's court.
This method may be difficult to apply if a specific case handler has not been assigned at the filing stage, so it is recommended to communicate with the court in advance.
Relevant legal provisions link:
① Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China
Article 523: The power of attorney signed by the representative of a foreigner, foreign enterprise, or organization in the presence of a judge of the people's court shall be recognized by the people's court.
Article 524: The power of attorney signed by the representative of a foreigner, foreign enterprise, or organization within the territory of the People's Republic of China, notarized by a notary institution of the People's Republic of China, shall be recognized by the people's court.
② Notice of the Supreme People's Court on Issuing the Minutes of the Second National Conference on Foreign-related Commercial Maritime Trial Work
Article 19: The power of attorney signed by foreign individuals in front of the case handlers of the people's court does not need to be notarized, certified, or undergo other proof procedures, but they should present identification and entry proof when signing the power of attorney. The case handlers of the people's court should note the relevant situation on the power of attorney and require the foreign individual to confirm.
Article 20: The power of attorney signed by foreign individuals within China, notarized by Chinese notary agencies, proving that the power of attorney was signed within China, does not need to undergo notarization, certification, or other proof procedures in their home country.
(2) Foreign parties outside the territory
1. Countries that are not parties to the Convention on the Abolition of the Requirement of Legalization for Foreign Public Documents
Foreign parties need to notarize their passport, power of attorney, and other documents in their home country, and obtain a notarization certificate from the notary agency. After the notarization is completed, they need to take the notarized documents to the Chinese embassy or consulate in that country for certification (referring to the activity where the Chinese embassy or consulate confirms the identity of the final signatory of the document and the authenticity of their signature or seal). Finally, the notarized and certified entrustment documents should be submitted to the people's court.
Relevant legal provisions link:
① Civil Procedure Law of the People's Republic of China
Article 275: Foreigners, stateless persons, foreign enterprises, and organizations without a domicile in the territory of the People's Republic of China who entrust lawyers or other persons in the People's Republic of China to represent them in litigation must have the power of attorney sent or entrusted from outside the territory notarized by the notary agency of the home country and certified by the Chinese embassy or consulate in that country, or fulfill the proof procedures stipulated in relevant treaties between the People's Republic of China and that country before it becomes effective.
② Several Provisions of the Supreme People's Court on Providing Online Filing Services for Cross-border Litigation Parties
Article 5: Cross-border litigation parties should submit the following materials online to the court of jurisdiction for identity verification:
(1) Foreigners should submit documents such as passports to prove their identity; enterprises and organizations should submit identification documents and proof that the person representing the enterprise or organization has the right to participate in litigation as a representative. The proof documents should be notarized by the notary agency of the home country and certified by the Chinese embassy or consulate in that country. If the country of the foreigner, foreign enterprise, or organization does not have diplomatic relations with China, they can be notarized by the notary agency of that country, certified by the embassy or consulate of a third country that has diplomatic relations with China, and then certified by the Chinese embassy or consulate in that third country. If there are specific provisions for proof procedures in international treaties or conventions that China has signed, concluded, or participated in with the country of the foreigner, foreign enterprise, or organization, those provisions shall apply, except for the clauses reserved by China;
(2) Residents of Hong Kong and Macao Special Administrative Regions should submit identity documents such as Hong Kong and Macao identity cards or residence permits, and documents proving their identity for enterprises and organizations should be notarized by a notary recognized in the mainland and forwarded with the seal of China Legal Services (Hong Kong) Limited or China Legal Services (Macau) Limited;
(3) Residents of Taiwan should submit identity documents such as Taiwan identity cards or residence permits, and documents proving their identity for enterprises and organizations should be processed through verification channels using cross-strait notarization;
(4) Mainland citizens whose habitual residence is in foreign countries or Hong Kong, Macao, and Taiwan should submit identity documents such as resident identity cards, household registration books, or ordinary passports issued by Chinese public security organs, and provide work visas, permanent residence permits, and other materials proving their legal continuous residence abroad or in Hong Kong, Macao, and Taiwan for more than one year.
2. Countries that are parties to the Convention on the Abolition of the Requirement of Legalization for Foreign Public Documents
According to the requirements of the Convention, the certification procedures for foreign documents in each contracting country are abolished, that is, the aforementioned consular certification is replaced by the issuance of an additional certificate by the competent authority of the document's country of origin. The Convention has simplified the document certification process, effectively reducing the time and financial costs for users of documents across borders, and has come into effect in China on November 7, 2023.
Therefore, if the foreign party's home country is a party to the Convention, after the notarization of documents such as passports and power of attorney is completed, only the additional certificate of the home country needs to be processed, and there is no need for consular certification from that country and the Chinese embassy or consulate.
As of October 23, 2023, the list of contracting countries for the Convention on the Abolition of the Requirement of Legalization for Foreign Public Documents is as follows:
Asia (22 countries): China, Armenia, Azerbaijan, Bahrain, Brunei, Georgia, India, Indonesia, Israel, Japan, Kazakhstan, Kyrgyzstan, Mongolia, Oman, Pakistan, the Philippines, South Korea, Saudi Arabia, Singapore, Tajikistan, Turkey, Uzbekistan.
Africa (16 countries): Botswana, Burundi, Cape Verde, Eswatini, Lesotho, Liberia, Malawi, Mauritius, Morocco, Namibia, Rwanda, São Tomé and Príncipe, Senegal, Seychelles, South Africa, Tunisia.
Europe (44 countries): Albania, Andorra, Austria, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Montenegro, Netherlands, North Macedonia, Norway, Poland, Portugal, Moldova, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine, United Kingdom.
North America (21 countries): Antigua and Barbuda, Bahamas, Barbados, Belize, Canada, Costa Rica, Dominica, Dominican Republic, El Salvador, Grenada, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Panama, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, United States.
South America (12 countries): Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay, Venezuela.
Oceania (10 countries): Australia, Cook Islands, Fiji, Marshall Islands, New Zealand, Niue, Palau, Samoa, Tonga, Vanuatu.
It is worth noting that the Convention does not apply between China and members that it does not recognize as sovereign states, and the Convention does not apply between mainland China and Hong Kong and Macau. Legal documents from Hong Kong or Macau must be reviewed and stamped by the China Legal Service (Hong Kong) Co., Ltd. or China Legal Service (Macau) Co., Ltd. before they can be used in mainland China. The Convention also does not apply between China and India.
There is no explicit provision in our law regarding whether a complaint needs notarization (to obtain an additional certificate). In practice, the court may have different requirements during the litigation process, and some courts may require the complaint to be notarized (to obtain an additional certificate), so it is necessary to communicate with the court in advance. If the court allows a lawyer to sign the complaint on behalf of the party, the power of attorney must clearly state the authorization (the precautions regarding the power of attorney will be elaborated on below).
II. Evidence Preparation
(1) Official Documents
For foreign official documents provided by the parties, it only needs to be certified by a notarization authority or to follow the certification procedures stipulated in the relevant treaties between our country and the country where the document is located, without the need for further authentication. If the authenticity of the foreign official document can be verified online or if both parties have no objection to the authenticity of the document, the relevant notarization or certification procedures can be waived.
Relevant legal provisions link:
① Supreme People's Court "Several Provisions on Evidence in Civil Litigation"
Article 16, Paragraph 1: Official documents provided by the parties that are formed outside the territory of the People's Republic of China must be certified by the notarization authority of the country where they are located or follow the certification procedures stipulated in the relevant treaties between the People's Republic of China and that country.
② "Minutes of the National Court Symposium on Foreign-related Commercial and Maritime Trial Work"
Article 16: The official documents referred to in Article 16 of the Supreme People's Court "Several Provisions on Evidence in Civil Litigation" include judgments and rulings made by foreign courts, documents issued by foreign administrative agencies, commercial registrations, birth and death certificates, marriage status certificates, etc., issued by foreign public institutions, but do not include documents issued by private institutions such as foreign appraisal agencies.
Official documents formed outside the territory of the People's Republic of China must be certified by the notarization authority of the country where they are located or follow the corresponding certification procedures, except where the authenticity of the official document can be verified online or both parties have no objection to the authenticity of the document.
(2) Evidence Related to Identity Relationships
Our legislation has stricter certification procedures for foreign evidence related to identity relationships (such as marriage, parent-child relationships, guardian and ward relationships, and other family relationships). It must first be notarized by the notarization authority in the country where the evidence is located, and then certified by the Chinese embassy or consulate in that country (if it is a non-contracting state of the Convention) or obtain an additional certificate (if it is a contracting state).
Relevant legal provisions link:
Supreme People's Court "Several Provisions on Evidence in Civil Litigation"
Article 16, Paragraph 2: Evidence related to identity relationships formed outside the territory of the People's Republic of China must be certified by the notarization authority of the country where it is located and certified by the embassy or consulate of the People's Republic of China in that country, or follow the certification procedures stipulated in the relevant treaties between the People's Republic of China and that country.
(3) Other Foreign Evidence such as Private Documents
In practice, the vast majority of civil litigation evidence consists of private documents. According to our current laws, notarization and certification procedures for foreign private documents are not mandatory. The party providing such evidence has the right to choose whether to undergo the relevant notarization or certification procedures. For ordinary foreign evidence, the certification procedure is not necessarily a mandatory requirement; notarization and certification are merely ways to enhance the authenticity of the evidence, and whether it can ultimately be accepted as evidence still needs to be verified in court and judged according to the rules of evidence.
III. Others
(1) Precautions for Power of Attorney
Due to the cumbersome procedures for foreign notarization and certification, in order to save time, it is advisable to expand the scope of authorization as much as possible within necessary limits, which can include multiple stages of litigation from trial to execution, and to be as comprehensive and specific as possible regarding the authorized matters, such as signing the complaint, settlement agreement, authorizing notarization, appraisal, and special authorization matters such as collecting and paying fees. In addition, a clause for attorney transfer authorization can be added as needed, so that in the event of a change in work, the new attorney can directly take over the case based on the original attorney's transfer authorization without needing to undergo re-notarization and certification.
(2) Video Witnessing of Agency Authorization
To further enhance the ability of the people's courts to serve parties involved in cross-border litigation, on February 3, 2021, the Supreme People's Court issued the "Several Provisions on Providing Online Filing Services for Parties in Cross-Border Litigation." According to these provisions, cross-border litigation parties who have undergone identity verification and have entrusted lawyers from mainland China to represent them in litigation can apply to the court for online video witnessing. The entrusted agency documents witnessed via video do not require notarization, certification, or forwarding procedures. This method greatly simplifies the entrustment process for foreign parties abroad, so it is advisable to communicate with the court in advance to see if this method can be used for the entrustment procedures.
Relevant legal provisions link:
Supreme People's Court "Several Provisions on Providing Online Filing Services for Parties in Cross-Border Litigation"
Article 6: Cross-border litigation parties who have undergone identity verification and have entrusted lawyers from mainland China to represent them in litigation can apply to the court for online video witnessing.
Online video witnessing is initiated by the judge online, with the judge, cross-border litigation parties, and the entrusted lawyer all present on video at the same time. Cross-border litigation parties should use the common language of the People's Republic of China or provide translators. The judge should confirm whether the entrusted lawyer and their law firm, as well as the entrustment behavior, truly represent the real intention of the cross-border litigation parties. Under the judge's video witnessing, the cross-border litigation parties and the entrusted lawyer sign the relevant entrusted agency documents, without the need for notarization, certification, or forwarding procedures. After the online video witnessing, the entrusted lawyer can carry out online filing, online payment, and other matters on behalf of the parties.
The process of online video witnessing will be automatically saved by the system.
(3) Declaration Regarding Original Domestic Legal Identity
For foreign parties who previously had a domestic legal identity, which has been canceled after immigration, but whose original domestic identity is involved in the dispute, an additional declaration must be prepared regarding their identification documents, stating that the original domestic identity and the current foreign identity belong to the same person.
(4) Translation
Foreign language documents submitted to the court should be accompanied by Chinese translations. It is important to commission a translation agency with the appropriate qualifications and language capabilities, indicating the name and contact information of the translator, and affixing the official seal of the translation agency or the signature of the translator.
Therefore, when representing foreign natural persons in litigation in China, it is essential to comprehensively consider the above-mentioned factors that may affect the progress of the case, ensuring the effective protection of the parties' legal rights.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
