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Summary and mediation

Updated: Jun 20, 2017 english.legalinfo.gov.cn Print

1.Introduction

Foreigners can hardly avoid civil and commercial disputes when living, studying and working in China, and need to know the channels, methods of dispute resolution and the available legal aid. This and the following two articles will briefly introduce dispute resolution mechanism in China and the available legal aid, according to the Law on People's Mediation, the Arbitration Law, the Civil Procedure Law, the Criminal Procedure Law, the Regulation on Legal Aid, and other relevant laws, regulations and judicial interpretations, to help foreigners in China to understand and master a variety of legal ways to resolve disputes and protect their lawful rights and interests.

2.The ways to resolve civil and commercial disputes

According to relevant laws and regulations in China, like Chinese, foreigners in China have the following four main ways to resolve civil and commercial disputes: (1) reconciliation, namely, the parties negotiate by themselves. (2) Mediation, namely, a third party, according to certain social norms (habits, morals, law, etc.), communicates information between the disputed parties, sets forth facts and reasons things out, leads disputed parties to mutual understanding, compromise, and finally resolve the dispute. Mediation includes people's mediation, administrative mediation and judicial mediation. (3) Arbitration, namely, with the agreement of the parties by negotiations, an arbitration tribunal shall, in accordance with the law, try civil and commercial disputes and make a legal document to quell conflicts. Arbitration is private of nature and is based on the agreement of the parties. (4) Litigation, namely, “the civil lawsuit” called by people, is a typical public remedy, and has the special legal compulsory effect, and is the most effective and a final means to resolve civil disputes.

A lot of foreign friends are not familiar with Chinese law, and they find difficulty in resolving civil and commercial disputes by themselves and need legal services to help resolve disputes. According to relevant Chinese law, foreigners in China can hire a lawyer to deal with civil and commercial disputes.

3.Application of law for civil and commercial disputes between foreigners in China or between foreigners and Chinese

According to relevant Chinese law, civil and commercial disputes between foreigners in China and between foreigners and Chinese belong to foreign-related civil disputes, and the application of law will be determined based on the provisions of General Principles of the Civil Law and Law on the Application of Law for Foreign-related Civil Relations. Generally Chinese law will be applied, and foreign law, international treaties and international practice may also be applied.

According to provisions of the General Principles of the Civil Law, laws of the People's Republic of China shall be applied to civil activities within the territory and territorial waters and space of the People's Republic of China, except as otherwise provided by law. The application of law in foreign-related civil relations shall be determined according to the above provisions. If any international treaty concluded or acceded to by the People's Republic of China contains provisions differing from those in the civil laws of the People's Republic of China, the provisions of the international treaty shall be applied, unless the provisions are ones on which the People's Republic of China has announced reservations. International practice may also be applied to matters for which neither the law of the People's Republic of China nor any international treaty concluded or acceded to by the People's Republic of China has any provisions

4.The situation where the applicable law chosen by the parties of foreign-related civil relations by agreement is invalid

According to Interpretations (I) of the Supreme People's Court on Several Issues Concerning Application of the Law on Applicattion of Law to Foreign-related Civil Relations, in foreign-related civil relations, the clause that the parties reached by agreement for the application of law shall be invalid when it falls into any of the following situations: (1) involving the protection of the rights and interests of workers; (2) involving food or public health safety; (3) involving environmental safety; (4) involving foreign exchange control and other financial safety; (5) involving antitrust and anti-dumping; (6) other circumstances shall be considered as mandatory provisions.

5.Foreigners in China with financial difficulty can obtain legal aid in China

Foreigners in China encountering civil and commercial disputes or criminal litigation, according to the Regulation on Legal Aid and relevant laws and regulations, can obtain legal aid. In practice, the criminal suspect in a criminal case can obtain the help of a legal aid lawyer appointed by the people's court. A foreign party in civil and commercial cases with financial difficulty can obtain legal aid, if his country has signed relevant treaties or agreements with China.

6.People's mediation

People's mediation refers to the activities of the people's mediation committee assisting the parties concerned on the basis of equal consultation in reaching a mediation agreement voluntarily through persuasion, guidance and other methods to resolve disputes among people. According to relevant laws and regulations of China, if one party or both parties are foreign citizens, legal persons or other organizations, or stateless persons of civil and commercial disputes, as long as the parties voluntarily choose people's mediation to resolve civil and commercial disputes, the parties can apply to the people's mediation committee for mediation.

According to the provisions of the People's Mediation Law, the people's mediation committee shall abide by the following principles when mediating disputes among people: (1) mediating on the basis of free will and equality of the parties; (2) not in violation of laws, regulations and state policies; (3) respecting the rights of the parties and not by mediation preventing the parties from protecting their own rights through ways such as arbitration, administrative ways and litigation.

7.Administrative mediation

Administrative mediation is a method used by state administrative organs to resolve civil and commercial disputes between equal subjects. In China, state administrative organs may, in accordance with the laws and administrative regulations, patiently persuade and educate the parties concerned in the civil and commercial disputes between equal parties within the jurisdiction of its authority and help the parties to form a mutual understanding and reach an agreement on the basis of equal consultation, so as to reasonably and thoroughly resolve the dispute and contradiction.

Similar to people's mediation, administrative mediation, a mediation activity on a voluntary basis and belonging to the non-litigation mediation, is a convenient, cheap and efficient way to resolve civil and commercial disputes. According to Chinese law, although the agreement reached by the parties in civil and commercial disputes through people's mediation or administrative mediation does not have the effect of compulsory execution, it still has binding effect on the parties.

8.Judicial mediation

Judicial mediation is a litigation activity presided by the people's court, which leads the parties concerned to reach an agreement on the civil rights and obligations or litigation rights and obligations on the basis of compromise from the parties, and thus reasonably, fairly and legally resolves civil disputes.

According to the relevant provisions of the Civil Procedure Law of China, foreign-related civil and commercial cases can also be subjected to judicial mediation. If the parties concerned in foreign-related civil and commercial cases are willing to apply for judicial mediation, they shall apply orally or in writing form to the people's court for judicial mediation, and the people's court will distinguish between right and wrong and conduct mediation based on clear facts of the case.

9.The rights and obligations enjoyed by a foreign party in the people's mediation activities

A foreign party applying for people's mediation enjoys the same rights and bears the same obligations as that of a Chinese party. According to the provisions of the People's Mediation Law, the parties concerned shall enjoy the following rights in people's mediation activities: (1) to select or accept people's mediators; (2) to accept, refuse or terminate the mediation; (3) to require mediation conducted openly or not; (4) to independently express opinions and voluntarily reach a mediation agreement.

The parties concerned shall fulfill the following obligations in people's mediation activities: (1) to truthfully state the facts of the dispute; (2) to comply with the order in the process of mediation and respect people's mediators; (3) to respect the other party to exercise his rights.

10.The ways to resolve disputes about the fulfillment of the mediation agreement or the content of the mediation agreement

According to the provisions of the People's Mediation Law, where a mediation agreement is reached by the people's conciliation committee, a written mediation agreement may be made. If the parties concerned do not think it is necessary to make a mediation agreement, they may reach an oral agreement, and the people's mediators shall record the content of the agreement. After the mediation agreement is reached, if the parties have dispute about the fulfillment of the mediation agreement or about the content of the mediation agreement, the party may file a lawsuit before a people's court.

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