Appendix 1
Some Provisions of the Supreme People's Court on the Scope of Cases to be entertained by Maritime Courts
(Adopted by the Judicial Committee of the Supreme People's Court at the 1187th Meeting on August 9, 2001)
No. 27 [2001] of Interpretation of the Supreme People's Court
The Special Maritime Procedure Law of the People's Republic of China entered into force on July 1, 2000. In accordance with the Civil Procedure Law of the People's Republic of China, the Special Maritime Procedure Law of the People's Republic of China, the Administrative Procedure Law of the People's Republic of China and the relevant international conventions acceded to by or approved by China, with reference to international practices and on the basis of summing up the practical experiences in maritime trial of China, the scope of cases to be entertained by maritime courts is hereby provided as follows:
I. Cases on maritime tortious disputes
1. Cases on claims for damages arising out of collisions of vessels, including cases on disputes over claims for damages caused by indirect collisions, such as damages from waves, etc..
2. Cases on disputes over claims for damages arising out of collisions of vessels with the facilities or other properties on the sea, on water areas leading to the sea, in the harbor or on the shore, including cases on disputes over claims for damages caused by collisions of vessels with the wharf, wave-proof embankment, landing stage, vessel lock, bridge or with such navigation-supporting facilities as navigation mark, etc. or with other facilities on the sea.
3. Cases on disputes over claims for damages caused by vessels to the facilities or other properties which are set up in the air or laid on the bottom of the sea or of the water areas leading to the sea.
4. Cases on disputes over claims for damages arising out of oil, polluted water or other harmful substances discharged, leaked, or dumped from vessels, which cause pollution to water areas or cause damages to other vessels, goods or other properties.
5. Cases on disputes over claims for damages arising out of shipping, production, operations on the sea or on water areas leading to the sea, building, repairing, dismantling of vessels, or harbor operations and construction, which cause pollution to water areas, beaches or cause damages to other vessels, goods or other properties.
6. Cases on disputes over claims for damages to fishing or breeding facilities or to aquatic bred products arising out of navigation or operations of vessels.
7. Cases on disputes over claims for damages arising out of the sunken vessels or articles as well as their wreckages and abandoned articles in the sea-lane, or improper temporary or permanent facilities or installations on the sea or on water areas leading to the sea, which influence the navigation of vessels and cause damages to vessels, goods or other properties.
8. Cases on disputes over claims for damages arising out of personal death or injury accidents which occur in the process of vessels' shipping or operations on the sea or on water areas leading to the sea, or of harbor operations.
9. Cases on disputes over illegal lien of vessels, cargo and materials or reserved parts used for vessels.
10. Other cases on maritime tortious dispute.
II. Cases on disputes over contracts of maritime trade
11. Cases on disputes over contracts of carriage of goods by sea or by water areas leading to the sea, including cases on disputes over contracts of carriage of goods by water such as oceangoing transport, international multimodal transport containing shipping sections, coastal and inland water transport, and water-water transshipment, water-land transshipment, etc..
12. Cases on disputes over contracts of carriage of passengers or luggage by sea or by water areas leading to the sea.
13. Cases on disputes over contracts on operation and management of vessels.
14. Cases on disputes over contracts on building, sale, repairing, rebuilding or dismantling of vessels.
15. Cases on disputes over contracts on mortgage of vessels.
16. Cases on disputes over charter party, including cases on disputes over bareboat charter party (including leased purchase), time charter party, and voyage charter party.
17. Cases on disputes over contracts on financial lease of vessels.
18. Cases on disputes over contracts on undertaking contract of transporting vessels along the coast or on water areas leading to the sea.
19. Cases on disputes over contracts on undertaking contract of fishing vessels.
20. Cases on disputes over contracts on lease or custody of utensils affixed to vessels or of shipping containers.
21. Cases on disputes over contracts on custody of goods in the harbor.
22. Cases on disputes over contracts on agency of vessels.
23. Cases on disputes over contracts of cargo agency relating to vessels' transport on the sea or on water areas leading to the sea.
24. Cases on disputes over contracts on supply of materials or reserved parts used for vessels.
25. Cases on disputes over contracts of labor services provided by the crew.
26. Cases on disputes over contracts of salvage at sea or contract of refloatation at sea.
27. Cases on disputes over contracts of towage.
28. Cases on disputes over contract of marine insurance or of protection and indemnity, including cases on disputes over insurance of goods transported by water, insurance of vessels, oil pollution and other protection and indemnity liability insurance, personal insurance, insurance of facilities on the sea, container insurance, etc..
29. Cases on disputes over contracts on economic association of transport on the sea or on water areas leading to the sea.
30. Cases on disputes over loan contracts relating to operation of vessels.
31. Cases on disputes over contracts of maritime guaranty.
32. Cases on disputes over other maritime trade contracts.
III. Other cases on disputes over maritime affairs and maritime trade
33. Cases on disputes over claims arising out of serious accidents from negligence, which occur in the transportation or operation (including fishing operations) on the sea, on water areas leading to the sea, or in the harbor.
34. Cases on disputes over harbor operations.
35. Cases on disputes over general average.
36. Cases on disputes over development and utilization of sea, including cases on disputes over development and utilization of continental shelf (such as exploitation of offshore oil or natural gas), desalination and comprehensive utilization of sea water, underwater marine projects, marine scientific inspection, etc..
37. Cases on disputes over operation, proceeds, distribution and property division among the co-owners of vessels engaged in transport or fishery production on the sea or on water areas leading to the sea.
38. Cases on disputes over ownership, possession right, use right, mortgage and lien of vessels and maritime liens.
39. Cases on disputes over shipping frauds.
40. Maritime administrative cases.
41. Cases on administrative maritime compensation.
42. Cases on application for ascertainment of the validity of maritime arbitration agreements.
43. Cases on application for revocation of maritime arbitral awards.
44. Cases on application for ascertainment of ownerless properties on the sea or on water areas leading to the sea.
45. Cases on application for voluntary service to the properties on the sea or on water areas leading to the sea.
46. Cases on application for declaration of deaths in maritime accidents.
47. Cases on preservation of maritime claims, including cases on the maritime claimant's application prior to litigation for distrainment of vessels, cargo, materials or reserved parts used for vessels or fuels used for vessels, and cases on his application prior to litigation for freezing or sealing up properties, for the sake of protecting the realization of his maritime claims.
48. Cases on disputes over claims for damages arising out of a wrong application for preservation of maritime claims or of a claim for excessive amount of guaranty.
49. Maritime injunction cases.
50. Cases on preservation of maritime evidence.
51. Cases on disputes over claims for damages arising out of wrong application for maritime injunction or preservation of maritime evidence.
52. Cases on maritime order of payment.
53. Cases on publicizing public notice for assertion of maritime claims.
54. Cases on establishment of the fund of liability limitation for maritime claims.
55. Cases on maritime credit registration and repayment.
56. Cases on litigation for confirmation of rights relating to maritime credit registration.
57. Cases on notice for assertion of maritime liens.
58. Other cases provided by law to be entertained by maritime courts or handed over by the people's courts at upper levels.
IV. Maritime execution cases
59. Cases on application for execution of the effective legal documents rendered by the maritime court or by the higher people's court in the appellant instance or by the Supreme People's Court on the basis of the maritime requests.
60. Cases on application by the administrative organ in charge of sea and water areas leading to the sea in accordance with the law for compulsory execution.
61. Cases on application of recognition and enforcement of maritime arbitral awards by foreign arbitration institutions in accordance with Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).
62. Cases on application for execution of credit documents relating to vessels and operation of vessels, confirmed by the public notarization organ.
63. Maritime and maritime trade cases with the orders or judgments rendered by foreign courts to be applied for recognition and assisted enforcement in accordance with the judicial assistance agreements concluded between China and foreign countries or in compliance with the principle of reciprocity.
V. Other Provisions
64. Administrative cases entertained by maritime courts shall be tried by the judicial tribunals in charge of maritime and maritime trade cases in the appellate instance.
65. These Provisions shall come into force as of the date of their promulgation. The Supreme People's Court's Circular on Printing and Distributing “Provisions on the Scope of Cases to be Entertained by Maritime Courts” on May 13, 1989 (No. 6 [1989] (Transport) Distributed by the Supreme People's Court), and Circular on Further Implementing the Scope of Cases to be Entertained by Maritime Courts on December 23, 1989 (No. 39 [1989] (Transport) Distributed by the Supreme People's Court) shall be abolished at the same time.
66. Where any relevant provision made by this Court in the past is inconsistent with these Provisions, these Provisions shall prevail.
Note:
In accordance with relevant provisions stipulated by the Supreme People’s Court and Guangdong Provincial Higher People’s Court, cases on application by the administrative organ in charge of sea and water areas leading to the sea in accordance with the law for compulsory execution shall not fall into the scope of cases to be entertained by Guangzhou Maritime Court.
Appendix 2
Special provisions on maritime jurisdiction stipulated by the Special Maritime Procedural Law of the People’s Republic of China.
Article 6 Maritime territorial jurisdiction shall be conducted in accordance with the relevant provisions of the Civil Procedure Law of the People's Republic of China.
The maritime territorial jurisdiction below shall be conducted in accordance with the following provisions:
(1) A lawsuit brought on maritime tortious may be, in addition to the provisions of Articles 19 to 31 of the Civil Procedure Law of the People's Republic of China, under jurisdiction of the maritime court of the place of its port of registry;
(2) A lawsuit brought on maritime transportation contract may be, in addition to the provisions of Articles 82 of the Civil Procedure Law of the People's Republic of China, under jurisdiction of the maritime court of the place of its port of re-transportation;
(3) A lawsuit brought on maritime charter parties may be under jurisdiction of the maritime court of the place of its port of ship delivery, port of ship return, port of ship registry, port where the defendant has its domicile;
(4) A lawsuit brought on a maritime protection and indemnity contract may be under jurisdiction of the maritime court of the place where the object of the action is located, the place where the accident occurred or the place where the defendant has its domicile;
(5) A lawsuit brought on a maritime contract of employment of crew may be under jurisdiction of the maritime court of the place where the plaintiff has its domicile, the place where the contract is signed, the place of the port where the crew is abroad or the port where the crew leaves the ship or the place where the defendant has its domicile;
(6) A lawsuit brought on a maritime guaranty may be under jurisdiction of the maritime court of the place where the property mortgaged is located or the place where the defendant has its domicile; a lawsuit brought on a ship mortgage may also be under jurisdiction of the maritime court in the place of registry port;
(7) A lawsuit brought on ownership, procession, and use, maritime liens of a ship, may be under jurisdiction of the maritime court of the place where the ship is located, the place of ship registry or the place where the defendant has its domicile.
Article 7 The following maritime litigation shall be under the exclusive jurisdiction of the maritime courts specified in this Article:
(1) A lawsuit brought on a dispute over harbor operations shall be under the jurisdiction of the maritime court of the place where the harbor is located;
(2) A lawsuit brought on a dispute over pollution damage for a ship's discharge, omission or dumping of oil or other harmful substances, or maritime production, operations, ship scrapping, repairing operations shall be under the jurisdiction of the maritime court of the place where oil pollution occurred, where injury result occurred or where preventive measures were taken;
(3) A lawsuit brought on a dispute over a performance of a maritime exploration and development contract within the territory of the People's Republic of China and the sea areas under its jurisdiction shall be under the jurisdiction of the maritime court of the place where the contract is performed.
Article 8 Where the parties to a maritime dispute are foreign nationals, stateless persons, foreign enterprises or organizations and the parties, through written agreement, choose the maritime court of the People's Republic of China to exercise jurisdiction, even if the place which has practical connections with the dispute is not within the territory of the People's Republic of China, the maritime court of the People's Republic of China shall also have jurisdiction over the dispute.
Article 9 An application for determining a maritime property as ownerless shall be filed by the parties with the maritime court of the place where the property is located; an application for declaring a person as dead due to a maritime accident shall be filed with the maritime court of the place where the competent organ responsible for handling with the accident or the maritime court that accepts the relevant maritime cases.
Article
Article 11 When the parties apply for enforcement of maritime arbitral award, apply for recognition and enforcement of a judgment or written order of a foreign court and foreign maritime arbitral award, an application shall be filed with the maritime court of the place where the property subjected to execution or of the place where the person subjected to execution has its domicile. In case of no maritime court in the place where the property subjected to execution or in the place where the person subjected to execution has its domicile, an application shall be filed with the intermediate people's court of the place where the property subjected to execution or of the place where the person subjected to execution has its domicile.
Appendix 3
Cases entertained by Guangzhou Maritime Court
1. Cases of maritime and admiralty disputes
Cases on disputes over claims for damage arising out of collisions of ships
Cases on disputes over claims for damage arising out of collisions involving ships and terminal
Cases on disputes over claims for damage caused by ships to the facilities which are set up in the air or laid on the bottom of the sea
Cases on disputes over claims for damage arising out of ship pollution
Cases on disputes over claims for damage arising out of pollution on the sea or water areas leading to the sea
Cases on disputes over claims for damage to aquatic bred products on the sea or water areas leading to the sea
Cases on disputes over claims for damage of property on the sea or water areas leading to the sea
Cases on disputes over claims for personal injury on the sea or water areas leading to the sea
Cases on disputes over illegal lien of ships, cargo, fuel and materials used for ships
Cases on disputes over contracts of carriage of goods by sea or by water areas leading to the sea
Cases on disputes over contracts of carriage of passengers by sea or by water areas leading to the sea
Cases on disputes over contracts of carriage of luggage by sea or by water areas leading to the sea
Cases on disputes over contracts on operation and management of ships
Cases on disputes over contracts on sale of ships
Cases on disputes over contracts on building of ships
Cases on disputes over contracts on repairing of ships
Cases on disputes over contracts on rebuilding of ships
Cases on disputes over contracts on dismantling of ships
Cases on disputes over contracts on mortgage of ships
Cases on disputes over voyage charter party
Cases on disputes over charter party
1) Time charter party
2) Bareboat charter party
Cases on disputes over contracts on financial lease of ships
Cases on disputes over contracts on undertaking contract of transporting ships on the sea or on water areas leading to the sea
Cases on disputes over contracts on undertaking contract of fishing ships
Cases on disputes over contracts on lease of utensils affixed to ships
Cases on disputes over contracts on custody of utensils affixed to ships
Cases on disputes over contracts on lease of shipping containers
Cases on disputes over contracts on custody of shipping containers
Cases on disputes over contracts on custody of goods in the harbor
Cases on disputes over contracts on shipping agency
Cases on disputes over contracts of cargo agency relating to ships’ transport on the sea or on the water areas leading to the sea
Cases on disputes over contracts of tally
Cases on disputes over contracts on supply of materials or reserved parts used for ships
Cases on disputes over contracts on labor services provided by the crew
Cases on disputes over contracts of salvage at sea
Cases on disputes over contracts of refloatation at sea or water areas leading to the sea
Cases on disputes over contracts of towage at sea or water areas leading to the sea
Cases on disputes over contracts of marine insurance
Cases on disputes over contracts of protection and indemnity
Cases on disputes over contracts on economic association of transport on the sea or on water areas leading to the sea
Cases on disputes over loan contracts relating to operation of ships
Cases on disputes over contracts of maritime guaranty
Cases on disputes over contracts of channel and harbor dredging
Cases on disputes over contracts on the building of shipyard and wharf
Cases on disputes over contracts on survey of ships
Cases on disputes over claims arising out of serious accidents which occur during the transportation or operation on the sea or water areas leading to the sea
Cases on disputes over claims arising out of serious accidents which occur during the operation in the harbor
Cases on disputes over harbor operations
Cases on disputes over general average
Cases on disputes over development and utilization of sea
Cases on disputes between the co-owners of ships
Cases on disputes over the ownership of the ships
Cases on disputes over shipping frauds
Cases on disputes over the confirmation of maritime credits
2. Cases to which the special maritime procedure shall be applied
Cases on preservation of maritime claims
1) Cases on application for ship arrest
2) Cases on application for auction of the arrested ship
3) Cases on application for distrainment of cargo
4) Cases on application for auction of the cargo held in custody
5) Cases on application for distrainment of reserved parts or fuels used for ships
6) Cases on application for auction of the reserved parts or fuels held in custody
Cases on application for maritime order of payment
Cases on application for maritime injunction
Cases on application for preservation of maritime evidence
Cases on application for establishment of the fund of liability limitation for maritime claims
Cases on application for announcement for assertion of maritime liens
Cases on application for maritime credit registration and repayment
Requirements and steps to apply for the arrest of a vessel
The arrest of a vessel is a unique preservation form enjoyed by Maritime Courts. In consideration of the high value of a vessel per se, the arrest of a vessel may also result in a substantial amount of loss of earnings. For the purpose of protecting vessel operators, the law sets up very strict requirements for the arrest of a vessel.
1. The application of arrest of vessel could only be filed in connection with maritime claims set up by law.
Those maritime claims include:
(1) Any loss or damage of property caused by the operation of vessel;
(2) Personal death and injury that has direct connection with the operation of vessel;
(3) Maritime salvage;
(4) Damage or threat of damage caused by vessel to the environment, coast, or interested parties; measures taken to prevent, mitigate or eliminate such damage; compensation paid for such damage; expenses of the rational measures actually taken or prepared to be taken for the recovery of the environment; losses that a third party has suffered or may likely suffer from such damage; and the damages, expenses or losses of similar nature as mentioned in this paragraph;
(5) Expenses relating to the refloating, clearance, retrieval or destroy of the sunken vessel, shipwreck, vessel aground, abandoned vessel or making them harmless, include the expenses relating to the refloating, clearance, retrieval or destroy of the things remained aboard or making them harmless and the expenses relating to the maintenance of the abandoned vessel and the crew;
(6) Agreements concerning the use of or charter of vessel;
(7) Agreements concerning the transportation of cargo or passengers;
(8) Any loss or damage of or relative to the cargo (including luggage);
(9) General average;
(10) Tow of vessel;
(11) Pilotage;
(12) Provision of materials or services for the operation, management, maintenance or repair of vessel;
(13) Building, rebuilding, repair, repackage or equipment of vessel;
(14) Fees, charges and expenses of the harbor, canal, wharf, bay or other water courses;
(15) Salary and other payments of the crew, including repatriation expenses paid to the crew and social security funds;
(16) Expenses paid for the vessel or ownership of the vessel;
(17) Insurance premium of vessel (including membership fees of mutual insurance companies) that the owner or bareboat charterer should pay or other persons have paid instead;
(18) Commission, brokerage expenses or agency fees relevant to the vessel that the owner or bareboat charterer should pay or other persons have paid instead;
(19) Disputes relating to the ownership or possession of the vessel;
(20) Disputes between the co-owners concerning the use or proceeds relating to the vessel;
(21) Right of mortgage or rights of similar nature on the vessel;
(22) Disputes arising out of a contract for the sale of vessel;
2. What kind of vessel is permitted to be arrested?
The maritime applicant is entitled to apply for arrest of two kinds of vessel, the vessel concerned and a sister vessel thereof. The vessel concerned could be applied for arrest if one of the following circumstances occurs:
(1) The owner of the vessel is held liable for the maritime claim and is the owner of the vessel when it is arrested;
(2) The bareboat charterer is held liable for the vessel and is the bareboat charterer or owner of the vessel when it is arrested;
(3) Maritime claims with the right of mortgage or rights of similar nature concerning the vessel;
(4) Maritime claims relating to the ownership or possession of the vessel;
(5) Maritime claims with the right of priority concerning the vessel;
An arrestable sister vessel is deemed to be the other vessels of the owner, bareboat charterer, time charterer or voyage charterer who are held liable for the maritime claims at the time of arrest, whilst the claims relating to the ownership or possession of the vessels could only apply for arrest of vessel concerned.
The vessels in military use or public service shall not be arrested.
3. How to file an application?
(1) The application for the arrest of a vessel shall be filed towards the maritime court of the place where the vessel is situated.
(2) The application shall be filed in wiring and shall clearly set forth the claims, reasons and the amount requested for guarantee. ID of the applicant, POA of agent and evidential materials shall be filed alongside the application.
(3) Provision of counter-guarantee at request of the maritime court. The fact that the applicant, when applying for the arrest of vessel, cannot find out in due time the name or title of the person against whom the application is filed shall not affect the filing of an application.
4. Time limit for arrest of vessel
The time limit for arrest of vessel in the preservation of maritime claims shall be 30 days. It is only when the maritime applicant files a suit or applies for arbitration within 30 days and if the applicant applies for the arrest of vessel in the process of judicial proceedings or arbitration procedure that the time limit for arrest of vessel shall be permitted to exceed 30 days.
If the applicant has not provided guarantee at the expiration of 30-day time limit, the maritime applicant may request the admiralty court enforcing the arrest to sell the vessel by auction, the request of which shall be raised after filing a suit or applying for arbitration.
Enforcement--- The Last Stage of Lawsuit
Effective consent judgment, payment order, arbitration award and a debt instrument with enforceability legally granted by a notary office, in addition to judgment and ruling, may be enforced by court on application.
The following materials shall be prepared when applying for court enforcement.
1. A written application for enforcement (the application shall indicate applicant, respondent, basis for enforcement and provide the clues for tracing property available for enforcement etc.);
2. Effective legal instruments as the basis for enforcement;
3. Identity of applicant (ID card of individual, business license of legal person);
4. Evidential documents of inheritance or assignment of rights shall be submitted if the inheritor or assignee applies for enforcement.
The court will serve a notice of enforcement, demanding a performance within a specified period, upon the party against whom enforcement is sought within three days after acceptance of the case. If the party against whom enforcement is sought fails to do so within a specified period, the court shall take enforcement measures. Enforcement measures include: freeze or transfer savings, withhold or withdraw income; seize, impound, auction or sell property; search the concealed property; a compulsory eviction from a building or land etc.
How to lodge an Appeal
If you are one of the parties and are not satisfied with first instance judgment and ruling (only restricted to four kinds of ruling, i.e. refuse to accept an action, reject the action, objection to jurisdiction and constitution of a limitation fund for maritime claims), you may lodge an appeal to the Guangdong Provincial Higher People’s Court.
The appeal shall be made within the relevant statutory period. The period for appealing against judgment is within 15 days from the date of service of the written judgment. The period for appealing against a ruling is within 10 days from the date of service of the written ruling while only within 7 days with respect to the ruling of constitution of a limitation fund for maritime claims. The period shall be counting from the next day of service of the judgment or ruling. If the date of service of judgment or ruling by each party is different, the period shall be counting respectively from the next day of service of the judgment or ruling by each party. If the expiration date of the period falls on a holiday, the first day after the holiday shall be the expiration date of the period.
A party which has no residence within the territory of the People's Republic of China shall have the right to appeal against a judgment or ruling of a people's court of first instance within 30 days from the date of service of the written judgment or ruling. The appellee shall submit a written statement of defense within 30 days after receiving a copy of the written appeal. If a party is unable to file an appeal or submit a written statement of defense within the statutory period and applies for an extension of the period, the application shall be subject to the decision of the People's Court.
If both parties fail to lodge an appeal within statutory period, the judgment of first instance shall take effect whilst the judgment does not take effect when one party lodges an appeal within the appealing period.
A written appeal shall be submitted when lodging an appeal. The following points shall attract attention: 1. A statement of case shall be summarized in the written appeal before presenting the court decision of first instance, the whole or part of which shall be pointed out to be not acceptable. Finally, the appealing requests shall be made clear as to whether it requests the court to revoke or completely or partially modify the original judgment. 2. The grounds for appeal are aimed at the original judgment rather than the opponent party. The grounds for being unsatisfied with the original judgment and ruling are majorly as follows: 1). Ambiguity of fact and inadequacy of evidence; 2). The original judgment or ruling is wrong at determination of case nature; 3). Wrong application of substantial law; 4). Violation of statutory proceedings.
Appealing fee shall be paid when lodging an appeal. You shall remit the appealing fee into the designated bank account within 7 days from the next day of submission of the written appeal. If there is a financial difficulty in paying appealing fee, you may apply for late, reduced or non-payment. The court will consider the appeal has been withdrawn if the appealing fee is overdue, or not applied for a late, reduced or non-payment, or although applied, not granted by the court.
How to Conduct the Court Hearing
The Court hearing, i.e. the trial, refers to the judicial activities that in the proceedings both parties debate face-to face in court with the attendance of judges. A few guidelines for trial are introduced as follows:
Firstly, parties shall appear timely in court according to the time and location as stated in legal subpoena served thereupon. In the event that parties fail to appear in court for some reason, they shall justify themselves to the court in advance. If you are plaintiff and refuse to appear in court without justified reasons, the court may consider the plaintiff has applied to withdraw his complaint; if you are defendant and refuse to appear in court without justified reasons, the court may make a default judgment.
The process of the court hearing is introduced as follows:
The court clerk will check your identity after you are seated. Therefore, it is advised to bring your ID card or other valid credentials and a copy thereof for filing of court. When both parties are present and the court clerk has checked the identity of each party, the court clerk will announce the court rules and the court hearing will begin.
The Judge will firstly announce the cause of action and the names of judges and court clerk, and ask the parties whether they wish to file any requests for disqualification. Disqualification refers to circumstances that judges and parties concerned shall be disqualified if they an interested party or have any other relationship to a case, which may affect the impartial trial of the case. Under any of the following circumstances, a judge shall voluntarily disqualify himself or herself: The judge is a party to a case or is a close relative of a party to a case or a litigation representative thereof; The judgment has a direct or indirect impact upon interests of the Judge; The judge has any other relationship with a party to a case, which may affect the impartial trial of the case. You may file a request for disqualification if you are of the view that a judge commits any conduct under the preceding circumstances, which may affect the impartial trial of the case and exert an adverse impact upon you, but it is subject to decision of the court whether the request will be granted.
Next follows the court investigation, court debate and court mediation. In these three phases, you may exercise your litigation rights. But one thing to bear in mind is that you shall restrict your statement and opinions to facts of case and focus of debate by both parties. If your statement is irrelevant to the case, the Judge will stop you. If you feel you have not presented yourself sufficiently in a court hearing, you may submit your opinions in writing for the reference of court during adjournment.
When the abovementioned phases are finished, the court hearing then comes to an end. If both parties have reached a mediation agreement, the Judge will prepare timely a consent judgment to affirm the content of the mediation agreement. Once a consent judgment is signed by both sides, it shall become legally binding. Where no mediation agreement is reached, the court shall enter, prepare and pronounce a judgment in a timely manner. Some judgments will be pronounced in court while some pronounced later on a fixed date.
Let the Evidence Speak: How to Collect and Submit Evidence?
In hearing the case, the court shall take facts as the basis and law as the criteria and the facts could only be proved by evidences.
How to Collect Evidences?
The plaintiff and defendant shall collect ample evidence pursuant to his/her allegation and provide such evidences to the court. Evidences include documentary evidence, physical evidence, witness’ testimony, audio-visual recordings, statement of a party, expert opinion and transcripts of survey. For detailed information on how to collect evidence, you may refer to our official website www.gzhsfy.org
Evidence shall be collected by legal means, or the court will not admit such evidence for the decision of the case. In case any party counterfeits or destroys evidence, produces false evidence or prevents any witness from bearing witness, instigates, bribes or threatens other people to give false testimonies, or threatens, insults, inflicts violence upon, harasses, or takes revenge against any witness, authenticators or inquisitor or their close relatives, shall be deemed as in violation of laws, and shall be imposed a fine or detention based on the circumstances. If a crime is committed, the court shall investigate them for criminal liabilities according to law.
Where the evidence is the archive files kept by relevant organs of the state and must be accessed by the court upon authority, or concern state secrets, commercial secrets or personal privacy, or the evidence cannot be collected by the parties concerned due to objective reasons, the relevant parties concerned may apply to the court for investigation upon and collection of evidence.
Under circumstances where there is a likely-hood that evidence may be destroyed, lost or too difficult to obtain later on, parties concerned may apply to the court for the preservation of the evidence.
What should be noted is that the application for collection and preservation of evidence shall be submitted in writing and no later than 7 days prior to the expiration of the term for producing evidence.
How to Submit Evidence?
1. One shall peruse the Notice of Producing Evidence and submit the evidence within the time period for producing evidence as prescribed by the court.
After accepting the case, the court may deliver a Notice of Producing Evidence to the parties concerned respectively, informing the concerned parties about the distribution of burden of producing evidence for both parties and requirements for producing evidence, circumstances under which the parties concerned could apply to the court for collection of evidence, the time period for producing evidence prescribed by the court pursuant to the facts of the case, and harmful consequences for failure to produce evidence within the prescribed time period. Therefore, parties concerned shall first peruse such Notice of Producing Evidence.
In the Notice of Producing Evidence, the court would prescribe a time limit for producing evidence and the parties concerned shall submit the evidence to the court within this prescribed time limit. Otherwise, it would be deemed that the parties concerned had waived his/her rights to produce evidence. Evidence provided beyond the time period for producing evidence without justified reasons shall not be cross-examined and would not be admitted by the court.
In case any party concerned really has difficulty in producing evidences during the time period for producing evidence, it may apply to the court for extending the period during the prescribed time period. It may delay the producing of evidence upon the approval of the court.
2. An evidence list is required when providing evidence to the court. The parties concerned shall categorize and number the evidential materials submitted thereby, make a brief specification of the sources of the evidential materials, the object and content of proof, affix their signatures and mark the date of submission and submit as many copies according to the number of opponent parties concerned. Explicit marks should be made for evidence concerning state secrets, commercial secrets or personal privacy.
3. Evidence submitted to the court shall be in line with the following requirements:
(1) The originals of the documentary evidence shall be submitted. In case it is really difficult to submit the originals of the documentary evidences, parties concerned may submit duplicated copy, photo or excerpt that is checked as consistent with the originals. Explanatory documents shall be made for statements, drawing, accounts, professional technical material, science and technology literature and other documentary evidence.
(2) In respect of the physical evidence, the original object shall be submitted. Where it is really difficult to submit the original object, the duplicated object that is checked as consistent with the original object, or the photo or video, etc. that can prove the physical evidence could be submitted. If the original object is a genus in a large quantity, only a part needs to be submitted.
(3) With regard to computer data and audio-visual materials, the original carrier of such materials shall be submitted. Where it is difficult to submit the original carrier, the duplicate may be submitted. The method of production, time of production, place of production, producer and object of proof shall be indicated along with the evidence submitted thereby. Audio materials shall be submitted along with the written records thereof.
(4) Along with the submission of witness’ testimony, the name, age, gender, profession, address and other basic information of the witness shall be stated and identity certificates such as the identity card of the witness shall also be provided. The witness’ signature shall be affixed to the testimony and the date of provision of testimony shall be indicated. The application for having witness to appear at court shall be filed ten days before the time period for producing evidence expires and shall be subject to the approval of the court.
(5) Conclusion of expert evaluation shall bear the information about the entrusting party, matters for expert evaluation, relevant materials submitted to the expert evaluation agency, basis for expert evaluation, science and technology means as adopted, instructions about the qualifications of the expert evaluation agency and the experts, as well as the signature of experts and the seal of the expert evaluation agency. For a conclusion of expert evaluation obtained by analysis, the analysis process shall be indicated.
(6) For evidence collected from the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan region and from outside the territory of the People’s Republic of China, its source shall be explained and certification formalities shall be conducted according to the relevant provisions.
(7) Documentary evidences in a foreign language must be submitted with Chinese versions and shall bear the seal of the translation agency or the signature of the translator.
How to Exchange Evidences
For the purpose of understanding the case, the court will sometimes arrange parties to have evidence exchanged before a court hearing. When the court proceeds to evidence exchange, the parties are required to well prepare the evidence as required. The evidence shall be categorized and numbered and an evidence list with number, description, facts proven and corresponding page number shall also be prepared. Copies of evidence shall be prepared according to the number of opponent parties. For instance, if the number of opponent parties is two, three sets of evidence shall be prepared to submit to the court. In addition, the original copy of evidence, if available, shall be brought in to court for verification.
When attending evidence exchange, parties shall bring documents, such as ID card, POA or attorney’s license, to prove their identity as required also in attending court hearing. During the course of evidence exchange, parties may recognize or challenge or even apply for adducing new evidence against the evidence adduced by the opponent party.
How to Respond to an Action?
When you receive a Notice for Responding to an Action issued by the court, it means that someone has filed a lawsuit to the court against you and you are now a defendant. Therefore, you should actively respond to the action in accordance with the court’s instruction and relevant laws and regulations. In doing so, you may also protect your legal rights and interests by legal means.
Accepting the case before hearing it does not mean that the court supports the claims filed by the plaintiff against you. In addition, the court naming you as defendant does not mean that the court believes you are in the wrong. In accordance with relevant legal provisions, all parties to a civil action shall have equal procedural rights. In judicial practice, for the majority of the time, the defendant wins a lawsuit. To notify the defendant to respond an action after accepting the lawsuit filed by the plaintiff is to offer the defendant an opportunity to file a defense. Only if the defendant actively responds to the action and adequately exercises his/her rights vested by law will he/she protects his/her legal rights and interests.
Activities for responding to an action shall consist of the following aspects:
1. Signing for the litigious documents served by the court, including the notice for responding to an action, summons and the notice for producing evidence. In signing for the litigious documents served by the court, you may learn about the arrangement for the hearing of the subject case, who is filing the lawsuit against you and why and what the plaintiff is claiming for against you. Therefore, you may file a pointed defend to the claims filed by the plaintiff.
2. You may participate in the legal proceedings by yourself or byentrusting 1 to 2 proxies to act on your behalf if necessary. In case a proxy is entrusted for the action, a power of attorney shall be submitted to the court. The signature or stamp of the principal is required where the power of attorney is issued by a natural person and the signature of a legal representative and the official stamp is required if it is to be issued by a legal person. The power of attorney must specify the matters and the scope of the authority entrusted. Notarization and certification is required for the power of attorney mailed or delivered from a citizen who is residing abroad.
3. Submitting a statement of defense. In accordance with relevant provisions, the defendant shall submit a written statement of defense within 15 days after receiving the copy of the statement of claim. If the defendant is a foreigner, the time period for submitting a statement of defense shall be 30 days. The following two factors shall be taken into consideration when drafting a written statement of defense: 1) focus on one of the claims filed by the opponent party, one or several factual grounds stated on the statement of claim submitted by the opponent party; 2) speaking with facts, to rebut the accusation made by the opponent party with facts and grounds.
You may admit the claims filed by the plaintiff or rebut them when drafting a written statement of defense. In case you believe that the opponent party was in violation of the contract or has infringed upon your legal rights in respect of the subject dispute, you may file a counterclaim against him/her.
4. Collecting and submitting evidence. You shall peruse the notice of producing evidence issued by the court and submit relevant evidences strictly pursuant to the court’s requirements. In this regard, you may refer to the following chapter—Let the Evidence speaks: How to collect and submit Evidences.
5. Attending the court hearing on schedule. Court is the place where the parties concerned could argue with each other face to face so as to defend themselves. To attend the court hearing, one may clarify his/her stance to the judge and could learn about the exact details of the opponent party. In case you cannot attend the court hearing as scheduled for any justifiable reason, you may apply to the court for alteration of the time for court hearing.
How to Initiate a Lawsuit?
----The first step to protect one’s rights and interests via judicial proceedings
Before filing a lawsuit, the following matters shall be fully taken into consideration.
1. Plaintiff to the lawsuit
One shall, prior to initiating a lawsuit, firstly make sure whether or not they are a proper plaintiff. The plaintiff shall be a citizen, legal person or other organization that is directly related to the subject case and participate in the judicial proceedings in their own name.
2. Defendant to the lawsuit
An explicit defendant is required when filing a lawsuit to the court. Explicit defendant means that: 1) the accused shall actually exist, while a deceased citizen or legal person whose registration is cancelled shall not act as a party to an action; 2) the basic information of the defendant shall be clear, including the name, gender, age, ethnicity, place of employment and address of the citizen, and the name, domicile, name and title of the legal representative or person in charge of legal persons.
3. Claims
The plaintiff shall determine their claims, i.e. to request the court to order the defendant whether to continue to perform the contract, or to compensate for the loss, cease the infringement, abate the nuisance, eliminate the danger, return the property, restore things to their original state, repair, rework, replace, pay for the liquidated damages, eliminate the effects of the act, restore the reputation or apologize.
4. Legal facts
After determining the claims, the plaintiff shall think over whether or not there is evidence to support the claims and whether such claims are reasonable or not. What needs to be noted is that the facts based on which a judgment is rendered by the court must be proved by relevant evidence.
5. Competent court
Guangzhou Maritime Court has jurisdiction over maritime cases and admiralty administrative cases of first instance within the coastal sea area, seaward inland river area, ports and shore area in Guangdong province and part of Nanhai Sea waters. Where the dispute involves ships, shipping businesses, port operation, ocean exploitation, admiralty administration, admiralty administrative compensation or pollution from land-based sources, you may file a lawsuit to with Court. If you are not sure whether the subject case falls under the jurisdiction of this Court or not, you may call for consultation via 020-34063863.
Drafting of Statement of Claim
After thinking over the above-mentioned matters, the plaintiff may start to draft a statement of claim. In the course of drafting a statement of claim, the following factors shall be taken fully into consideration.
1. The basic information of the litigants shall be accurate and specific.
For a natural person, the basic information includes the name, gender, age, ethnicity, place of employment, address, and nationality shall be included for a foreign citizen. In respect of a legal person, the basic information includes the name, domicile, and the name and title of the legal representative or person in charge. The name of a natural person shall be consistent with that recorded on his/her identity card, and it shall be consistent with that recorded on the business license in case of a legal person. Correspondence address and contact information of the concerned party shall be provided as well.
2. Claims
The plaintiff shall explicitly express his/her claims which he/she requests the court to hear. In case of multiple claims, the plaintiff shall list them one by one in the statement of claim. For claims which are not stated in the statement of claim, it shall be deemed that the plaintiff gives up his/her rights for such claims and the court would not take the initiative in hearing such claims.
3. Facts and grounds
With regard to the facts, the cause, course and current situation of the disputed events shall be clearly stated. In respect of the grounds, the plaintiff shall state the rights and wrongs of the disputed case on the basis of the facts and therefore determine the responsibilities that shall be borne by the parties concerned. Legal provisions are also required for the illustration of the grounds.
4. The name of the court shall be stated clearly on the statement of claim. For example, in case the lawsuit is to be lodged with this Court, the words “To the Guangzhou Maritime Court” shall be stated in such statement of claim.
5. The date shall be indicated at the end of the statement of claim. In case the concerned party is a natural person, his/her signature shall be affixed to the statement of claim, for legal persons or other organizations, the name of the legal representative and the official stamp shall be affixed.
6. The plaintiff should use succinct and accurate words when drafting a statement of claim and not apply injurious words to make personal comments on the opponent party.
Preparation of Materials for a Lawsuit
One complete set of materials for a lawsuit consist of one original statement of claim (to submit to the court), a number of copies of the statement of claim (which should be consistent with the number of defendants and such copies of statement of claim would be served by the court to the defendants), materials which could prove the identity of the parties concerned (including identity card, business license, identity certificate of a legal representative, power of attorney if a proxy is entrusted by the concerned party for the lawsuit and notarization and certification is required if such power of attorney is emailed or delivered from abroad) and the relevant evidence. You may make a copy of the List of Lawsuit materials and request the court to sign to acknowledge the receipt of such materials. The court shall give a reply within 7 days after receiving such materials.
When filing a lawsuit with the Guangzhou Maritime Court, you may, taking along with the materials for a lawsuit, go up to the headquarter of this Court or detached tribunals located in Shenzhen, Shantou, Zhanjiang, Jiangmen (which is planned to be moved to Zhuhai) to file the case or you may file the case by post. In addition, channels for filing a case by phone and via internet will be available soon. For details, please refer to the information on the official website of China Foreign-related Commercial and Maritime Trial (www.ccmt.org.cn).
Where the lawsuit filed meets the conditions for accepting and hearing a case, the court will notify you to pay the court fees. The court fees shall be paid to the account designated by the Ministry of Finance of the PRC. If you fail to pay the court fees within 7 days after receiving the court’s notification, the court may deal with the case by deeming that you have automatically revoked the lawsuit.
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