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Opinions of the Supreme People's Court on Some Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China [Expired]
最高人民法院关于适用《中华人民共和国民事诉讼法》若干问题的意见 [失效]
【法宝引证码】

 
Opinions of the Supreme People's Court on Some Issues Concerning the Application of the Civil Procedure Law of the People's Republic of China 最高人民法院关于适用《中华人民共和国民事诉讼法》若干问题的意见

(Discussed and adopted at the 528th meeting of the Judicial Committee of the Supreme People's Court, and promulgated by Judicial Interpretation No.22 [1992] of the Supreme People's Court on July 14, 1992)
 
(最高人民法院审判委员会第528次会议讨论通过最高人民法院1992年7月14日以法发[1992]22号发布)

In order to correctly apply the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the Civil Procedure Law), we have put forward the following opinions according to the provisions in the Civil Procedure Law and the practical judicial experience, and hereby provide them for the people's courts at all the levels to implement in their judicial work.
 
为了正确适用《中华人民共和国民事诉讼法》(以下简称民事诉讼法),根据民事诉讼法的规定和审判实践经验,我们提出以下意见,供各级人民法院在审判工作中执行。

 
I. Jurisdiction 一、管辖

 
1. The “major cases involving foreign elements” as prescribed in Article 19 (a) of the Civil Procedure Law refers to the cases involving foreign elements in which the sum of disputed subject matter is large, the case is complex, or the number of the parties concerned residing at abroad is large. 1、民事诉讼法第十九条第(一)项规定的重大涉外案件,是指争议标的额大,或者案情复杂,或者居住在国外的当事人人数众多的涉外案件。

 
2. Cases concerning patent disputes shall be under the jurisdiction of intermediate people's courts as determined by the Supreme People's Court. 2、专利纠纷案件由最高人民法院确定的中级人民法院管辖。

Cases concerning maritime affairs and maritime trade shall be under the jurisdiction of admiralty courts.
 
海事、海商案件由海事法院管辖。

 
3. Higher people's courts of all provinces, autonomous regions and municipalities directly under the Central Government may, according to Articles 19 (b) and 20 of the Civil Procedure Law, raise opinions on the jurisdiction by level over the cases of first instance within their respective jurisdictions based on local actualities, complexity of case facts, sum of subject matter and local influences, and report the said opinions to the Supreme People's Court for approval. 3、各省、自治区、直辖市高级人民法院可以依照民事诉讼法第十九条第(二)项、第二十条的规定,从本地实际情况出发,根据案情繁简、诉讼标的金额大小、在当地的影响等情况,对本辖区内一审案件的级别管辖提出意见,报最高人民法院批准。

 
4. The “domicile of a citizen” refers to the place of his permanent residence, and the “domicile of a legal person” refers to the place of its main business or the place of its main office. 4、公民的住所地是指公民的户籍所在地,法人的住所地是指法人的主要营业地或者主要办事机构所在地。

 
5. The “habitual residence of a citizen” refers to the place where he has continuously resided for more than one year from the time when he left his domicile to the time of complaint, except the place where he is hospitalized. 5、公民的经常居住地是指公民离开住所地至起诉时已连续居住一年以上的地方。但公民住院就医的地方除外。

 
6. If the defendant's permanent urban residence has been written off, the jurisdiction shall be determined according to Article 23 of the Civil Procedure Law; and if both parties' permanent urban residence has been written off, the case shall be under the jurisdiction of the people's court at the place where the defendant resides. 6、被告一方被注销城镇户口的,依照民事诉讼法第二十三条规定确定管辖;双方均被注销城镇户口的,由被告居住地的人民法院管辖。

 
7. If the party's permanent residence has been moved out but has not been settled, and there is the place of habitual residence, the case shall be under the jurisdiction of the people's court at the place of habitual residence; if there is no place of habitual residence, and the permanent residence has been moved out for less than one year, the case shall be under the jurisdiction of the people's court at the place of his original permanent residence; if the permanent residence has been moved out for more than one year, the case shall be under the jurisdiction of the people's court at the place where the defendant resides. 7、当事人的户籍迁出后尚未落户,有经常居住地的,由该地人民法院管辖。没有经常居住地,户籍迁出不足一年的,由其原户籍所在地人民法院管辖;超过一年的,由其居住地人民法院管辖。

 
8. If both parties concerned are imprisoned or reeducated through labor, the case shall be under the jurisdiction of the people's court at the defendant's original domicile. Where the defendant has been imprisoned or reeducated through labor for more than one year, the case shall be under the jurisdiction of the people's court at the place of imprisonment or reeducation-through-labor. 8、双方当事人都被监禁或被劳动教养的,由被告原住所地人民法院管辖。被告被监禁或被劳动教养一年以上的,由被告被监禁地或被劳动教养地人民法院管辖。

 
9. If several defendants of a case involving claims of alimonies reside in different administrative areas, the case can be under the jurisdiction of the people's court at the domicile of the plaintiff. 9、追索赡养费案件的几个被告住所地不在同一辖区的,可以由原告住所地人民法院管辖。

 
10. A case of rejection to the designated guardianship or alteration of the guardianship relationship shall be under the jurisdiction of the people's court at the domicile of the person under guardianship. 10、不服指定监护或变更监护关系的案件,由被监护人住所地人民法院管辖。

 
11. A lawsuit of divorce as filed by a non-soldier against a solider shall be under the jurisdiction of the people's court at the domicile of the plaintiff if the solider is a non-civilian one. 11、非军人对军人提出的离婚诉讼,如果军人一方为非文职军人,由原告住所地人民法院管辖。

If both parties involved in a lawsuit of divorce are soldiers, the lawsuit shall be under the jurisdiction of the people's court at the defendant's domicile or the place whether the defendant's employer at or above the level of regiment is located.
 
离婚诉讼双方当事人都是军人的,由被告住所地或者被告所在的团级以上单位驻地的人民法院管辖。

 
12. If either the husband or the wife has left the domicile for more than one year, the case of divorce as filed by the other party shall be under the jurisdiction of the people's court at the domicile of the plaintiff. If both the husband and the wife have left their domicile for more than one year, the case filed by one party shall be under the jurisdiction of the people's court at the place of habitual residence of the defendant; if there is no place of habitual residence, the case shall be under the jurisdiction of the people's court at the place where the plaintiff resides at the time of filing the complaint. 12、夫妻一方离开住所地超过一年,另一方起诉离婚的案件,由原告住所地人民法院管辖。夫妻双方离开住所地超过一年,一方起诉离婚的案件,由被告经常居住地人民法院管辖;没有经常居住地的,由原告起诉时居住地的人民法院管辖。

 
13. For overseas Chinese who got married in China but reside at abroad, if the court at the place of his residence rejects his complaint of divorce for the reason that the lawsuit of divorce shall be under the jurisdiction of the court at the place where the marriage is registered, and the party concerned files a lawsuit of divorce with the people's court, the lawsuit shall be under the jurisdiction of the people's court at the place where the marriage is registered or the last domestic domicile of one party. 13、在国内结婚并定居国外的华侨,如定居国法院以离婚诉讼须由婚姻缔结地法院管辖为由不予受理,当事人向人民法院提出离婚诉讼的,由婚姻缔结地或一方在国内的最后居住地人民法院管辖。

 
14. For overseas Chinese who got married and reside at abroad, if the court at the place of his residence rejects his lawsuit of divorce for the reason that the lawsuit of divorce shall be under the jurisdiction of the court of the country of his nationality, and the party concerned files a lawsuit of divorce with the people's court, the lawsuit shall be subject to the jurisdiction of the people's court at the former domicile or the last domestic domicile of one party. 14、在国外结婚并定居国外的华侨,如定居国法院以离婚诉讼须由国籍所属国法院管辖为由不予受理,当事人向人民法院提出离婚诉讼的,由一方原住所地或在国内的最后居住地人民法院管辖。

 
15. If one party as Chinese citizen resides at abroad and the other party as Chinese citizen resides in China, no matter which party files a lawsuit of divorce with the people's court, the people's court at the place where the party resides in China has the jurisdiction over the lawsuit. If the party residing at abroad files a lawsuit with the court at the country of his residence, and the party residing in China files a lawsuit with the people's court, the people's court with which the lawsuit is filed has the jurisdiction over the lawsuit. 15、中国公民一方居住在国外,一方居住在国内,不论哪一方向人民法院提起离婚诉讼,国内一方住所地的人民法院都有权管辖。如国外一方在居住国法院起诉,国内一方向人民法院起诉的,受诉人民法院有权管辖。

 
16. Where both parties of overseas Chinese stay but do not settle down at abroad, if one party files a lawsuit of divorce with a people's court, the lawsuit shall be under the jurisdiction of the people's court at the original domicile of the plaintiff or the defendant. 16、中国公民双方在国外但未定居,一方向人民法院起诉离婚的,应由原告或者被告原住所地的人民法院管辖。

 
17. The lawsuit filed against a partnership of citizens or a partnership association without its own office shall be under the jurisdiction of the people's court at the place where the defendant is registered. If there is no place of registration and different defendants reside in different administrative areas, the people's courts at the domiciles of any defendants shall have the jurisdiction over the lawsuit. 17、对没有办事机构的公民合伙、合伙型联营体提起的诉讼,由被告注册登记地人民法院管辖。没有注册登记,几个被告又不在同一辖区的,被告住所地的人民法院都有管辖权。

 
18. For a lawsuit filed due to a contractual dispute, if the contract has not been actually performed and the domiciles of both parties concerned are not the place of performance as stipulated in the contract, the lawsuit shall be under the jurisdiction of the people's court at the domicile of the defendant. 18、因合同纠纷提起的诉讼,如果合同没有实际履行,当事人双方住所地又都不在合同约定的履行地的,应由被告住所地人民法院管辖。

 
19. If both parties to a purchase-and-sale contract have stipulated the place of delivery in the contract, the place of delivery as stipulated in the contract shall be the place where the contract is performed; if there is no such stipulation, the place where the contract is performed shall be determined based on the delivery means; in the case of delivery of goods, the place where the contract is performed shall be the place where the goods are delivered; in the case of pick-up of goods, the place where the goods are picked up shall be the place where the contract is performed; and in the case of commissioned consignment or delivery of goods according to the method for delivery of timber and coal, the place where the goods are dispatched shall be the place where the contract is performed. 19、购销合同的双方当事人在合同中对交货地点有约定的,以约定的交货地点为合同履行地;没有约定的,依交货方式确定合同履行地;采用送货方式的,以货物送达地为合同履行地;采用自提方式的,以提货地为合同履行地;代办托运或按木材、煤炭送货办法送货的,以货物发运地为合同履行地。

If the place where a purchase-and-sale contract is actually performed is different from the place of delivery as stipulated in the contract, the place of actual performance shall be the place where the purchase-and-sale contract is performed.
 
购销合同的实际履行地点与合同中约定的交货地点不一致的,以实际履行地点为合同履行地。

 
20. For the contract on processing work, the place of actual processing shall be the place where the contract is performed, unless the place where the contract is performed is otherwise stipulated in the contract. 20、加工承揽合同,以加工行为地为合同履行地,但合同中对履行地有约定的除外。

 
21. For the contract on property leasing or the contract on financial leasing, the place where the leased property is used shall be the place where the contract is performed, unless the place where the contract is performed is otherwise stipulated in the contract. 21、财产租赁合同、融资租赁合同以租赁物使用地为合同履行地,但合同中对履行地有约定的除外。

 
22. For the contract on compensation trade, the place where the investment recipient's main obligation is fulfilled shall be the place where the contract is performed. 22、补偿贸易合同,以接受投资一方主要义务履行地为合同履行地。

 
23. The “agreement in a written contract” as prescribed in Article 25 of the Civil Procedure Law refers to the negotiated jurisdiction clause in the contract or the agreement on selection of jurisdiction reached before litigation. 23、民事诉讼法第二十五条规定的书面合同中的协议,是指合同中的协议管辖条款或者诉讼前达成的选择管辖的协议。

 
24. If the agreement on selection of jurisdiction by both parties to a contract is ambiguous or there are two or more competent people's courts according to Article 25 of the Civil Procedure Law, the agreement on selection of jurisdiction shall be invalid, and the jurisdiction shall be determined according to Article 24 of the Civil Procedure Law. 24、合同的双方当事人选择管辖的协议不明确或者选择民事诉讼法第二十五条规定的人民法院中的两个以上人民法院管辖的,选择管辖的协议无效,依照民事诉讼法第二十四条的规定确定管辖。

 
25. For a lawsuit filed due to the dispute over an insurance contract, if the target of insurance is a transport vehicle or the goods are in transit, the lawsuit shall be under the jurisdiction of the people's court at the place where the defendant resides, the place where the transport vehicle is registered, the place of destination or the place where the insured accident occurs. 25、因保险合同纠纷提起的诉讼,如果保险标的物是运输工具或者运输中的货物,由被告住所地或者运输工具登记注册地、运输目的地、保险事故发生地的人民法院管辖。

 
26. The “place of payment on commercial instrument” as prescribed in Article 27 of the Civil Procedure Law refers to the place of disbursement stated in the commercial instrument. The place of domicile or the principal business office of the drawee including the payer by proxy shall be deemed as the place of payment on commercial instrument if the commercial instrument has not stated the place of disbursement. 26、民事诉讼法第二十七条规定的票据支付地,是指票据上载明的付款地。票据未载明付款地的,票据付款人(包括代理付款人)的住所地或主营业所所在地为票据付款地。

 
27. The application for a pay warrant by the creditor shall be governed by Article 22 of the Civil Procedure Law and be under the jurisdiction of the grassroots people's court at the domicile of the debtor. 27、债权人申请支付令,适用民事诉讼法第二十二条规定,由债务人住所地的基层人民法院管辖。

 
28. The “place of a tortious act” as prescribed in Article 29 of the Civil Procedure Law includes the place where the tort is committed and the place where the tortuous consequence takes place. 28、民事诉讼法第二十九条规定的侵权行为地,包括侵权行为实施地、侵权结果发生地。

 
29. A lawsuit concerning the damage of property or personal injury of another person resulted from bad quality of products shall be under the jurisdiction of the people's court where the products are manufactured, the place where the products are sold, the place the tort is committed or the domicile of the defendant. 29、因产品质量不合格造成他人财产、人身损害提起的诉讼,产品制造地、产品销售地、侵权行为地和被告住所地的人民法院都有管辖权。

 
30. The dispute over a railway transport contract or the tort dispute over railway transport shall be under the jurisdiction of the railway transportation court. 30、铁路运输合同纠纷及与铁路运输有关的侵权纠纷,由铁路运输法院管辖。

 
31. For the preservation of property before the institution of an action, the party concerned shall file an application with the people's court at the place where the property is located. 31、诉前财产保全,由当事人向财产所在地的人民法院申请。

If an applicant files a lawsuit after a people's court took the measure for preservation of property before the institution of an action, the lawsuit may be filed with the people's court that took the measure for preservation of property before the institution of an action or any other competent people's court.
 
在人民法院采取诉前财产保全后,申请人起诉的,可以向采取诉前财产保全的人民法院或者其他有管辖权的人民法院提起。

 
32. If the party concerned fails to file a lawsuit within the statutory term after applying for preservation of property before the institution of an action, and a lawsuit is resulted from the loss of property to the party against whom the application is filed, the lawsuit shall be under the jurisdiction of the people's court that took the measure for preservation of property before the institution of an action. 32、当事人申请诉前财产保全后没有在法定的期间起诉,因而给被申请人造成财产损失引起诉讼的,由采取该财产保全措施的人民法院管辖。

 
33. For a lawsuit over which two or more people's courts have the jurisdiction, the people's court that firstly puts the case on file shall not transfer the case to another competent people's court. If the people's court finds before putting a case on file that the case has been put on the file of another competent people's court, it shall not put the case on its file again; and if it finds that another competent people's court has put this case on file, it shall rule to transfer the case to the people's court that puts the case on file prior to it. 33、两个以上人民法院都有管辖权的诉讼,先立案的人民法院不得将案件移送给另一个有管辖权的人民法院。人民法院在立案前发现其他有管辖权的人民法院已先立案的,不得重复立案,立案后发现其他有管辖权的人民法院已先立案的,裁定将案件移送给先立案的人民法院。

 
34. After a case has been accepted, the jurisdiction of the people's court with which the case is filed shall not be affected by the change in the domicile of the party concerned or the place of habitual residence. 34、案件受理后,受诉人民法院的管辖权不受当事人住所地、经常居住地变更的影响。

 
35. After the competent people's court has accepted a case, it shall not transfer the case to the other competent people's court in the excuse of the alteration of the administrative areas. The appellate case after adjudication or the case brought up for trial according to the procedure for trial supervision shall be tried by the higher people's court of the people's court of original trial; and the case remanded for retrial by the people's court of second instance or the case directed for retrial by the people's court at a higher level shall be reheard or retried by the people's court of original trial. 35、有管辖权的人民法院受理案件后,不得以行政区域变更为由,将案件移送给变更后有管辖权的人民法院。判决后的上诉案件和依审判监督程序提审的案件,由原审人民法院的上级人民法院进行审判;第二审人民法院发回重审或者上级人民法院指令再审的案件,由原审人民法院重审或者再审。

 
36. When two people's courts between which there is a jurisdictional dispute can not reach unanimity upon negotiations and report the dispute to their common superior people's court to designate the jurisdiction according to Article 37 (2) of the Civil Procedure Law, if both courts are grassroots people's courts in a same districted city or municipal district, the intermediate people's court of that districted city or municipal district shall timely designate the jurisdiction; if both courts are the people's courts in a same province, autonomous region or municipality directly under the Central Government, the higher people's court of that province, autonomous region or municipality directly under the Central Government shall timely designate the jurisdiction; if both courts are the people's courts in two provinces, autonomous regions or municipalities directly under the Central Government and the higher people's courts can not reach unanimity upon negotiations, the Supreme People's Court shall timely designate the jurisdiction. 36、依照民事诉讼法第三十七条第二款规定,发生管辖权争议的两个人民法院因协商不成报请它们的共同上级人民法院指定管辖时,如双方为同属一个地、市辖区的基层人民法院,由该地、市的中级人民法院及时指定管辖;同属一个省、自治区、直辖市的两个人民法院,由该省、自治区、直辖市的高级人民法院及时指定管辖;如双方为跨省、自治区、直辖市的人民法院,高级人民法院协商不成的,由最高人民法院及时指定管辖。

The designation of jurisdiction by superior people's courts according to the preceding paragraph shall be reported level by level.
 
依前款规定报请上级人民法院指定管辖时,应当逐级进行。

 
37. For the designation of jurisdiction according to Article 37 of the Civil Procedure Law, the superior people's court shall notify the people's court that submits the request for designation and the designated people's court in written form. After receipt of the notice, the people's court that submits the request for designation shall notify the parties concerned in a timely manner. 37、上级人民法院依照民事诉讼法第三十七条的规定指定管辖,应书面通知报送的人民法院和被指定的人民法院。报送的人民法院接到通知后,应及时告知当事人。

 
II. Participants in Civil Proceedings 二、诉讼参加人

 
38. The chief in charge of a legal person is the legal representative of that legal person. Where there is no chief in charge, the deputy head in charge of relevant work shall be the legal representative. For a legal person with its board of directors, the board chairman shall be the legal representative; for a legal person without the board chairman, the person in charge as authorized by the board of directors may be the legal representative of that legal person. 38、法人的正职负责人是法人的法定代表人。没有正职负责人的,由主持工作的副职负责人担任法定代表人。设有董事会的法人,以董事长为法定代表人;没有董事长的法人,经董事会授权的负责人可作为法人的法定代表人。

For any other organization that does not have the status of legal person, the person chiefly in charge shall be its representative.
 
不具备法人资格的其他组织,以其主要负责人为代表人。

 
39. In the litigation, if the legal representative of a legal person is changed, the new legal representative shall process with the litigation, and submit the identity certification of the new legal representative to the people's court. The litigation conducted by the original legal representative shall be still valid. 39、在诉讼中,法人的法定代表人更换的,由新的法定代表人继续进行诉讼,并应向人民法院提交新的法定代表人身份证明书。原法定代表人进行的诉讼行为有效。

This Article shall apply to the lawsuits participated in by other organizations.
 
本条的规定,适用于其他组织参加的诉讼。

 
40. The “other organizations” as prescribed by Article 49 of the Civil Procedure Law refers to the organizations that are lawfully established, have certain organizational bodies and properties but do not have the status of legal person, and includes: 40、民事诉讼法第四十九条规定的其他组织是指合法成立、有一定的组织机构和财产,但又不具备法人资格的组织,包括:

1. Sole proprietorships and partnerships that have been registered and obtained the business license according to law;
 
(1)依法登记领取营业执照的私营独资企业、合伙组织;

2. Partnership associations that have been registered and obtained business licenses according to law;
 
(2)依法登记领取营业执照的合伙型联营企业;

3. Chinese-foreign contractual joint ventures and foreign-funded enterprises that have been registered and obtained business licenses according to law;
 
(3)依法登记领取我国营业执照的中外合作经营企业、外资企业;

4. Social organizations that have been approved and registered by the civil affairs administrative department and have obtained a registration certificate of social organization;
 
(4)经民政部门核准登记领取社会团体登记证的社会团体;

5. Branches that are established by legal persons and have obtained business licenses;
 
(5)法人依法设立并领取营业执照的分支机构;

6. Branches of the People's Bank of China or various professional banks that are established all over the country;
 
(6)中国人民银行、各专业银行设在各地的分支机构;

7. Branches of the People's Insurance Company of China that are established all over the country;
 
(7)中国人民保险公司设在各地的分支机构;

8. Enterprises run by towns, sub-districts or villages that have been registered upon approval and obtained business licenses according to law; and
 
(8)经核准登记领取营业执照的乡镇、街道、村办企业;

9. Other organizations meeting the requirements set down in this Article.
 
(9)符合本条规定条件的其他组织。

 
41. For a branch established by a legal person not according to law or a branch of a legal person that is established according to law but has not obtained the business license, the legal person that has established the branch shall be the party concerned. 41、法人非依法设立的分支机构,或者虽依法设立,但没有领取营业执照的分支机构,以设立该分支机构的法人为当事人。

 
42. For a lawsuit resulted from the act of duty or the act of authorization by the staff member of a legal person or any other organization, the legal person or other organization shall be the party concerned. 42、法人或者其他组织的工作人员因职务行为或者授权行为发生的诉讼,该法人或其组织为当事人。

 
43. If an individual industrial and commercial household, individual partnership or private enterprise is affiliated to a collectively-owned enterprise and engages in business activities in the name of collectively-owned enterprise, in the litigation, the individual industrial and commercial household, individual partnership or private enterprise and the said collectively-owned enterprise shall be the co-litigants. 43、个体工商户、个人合伙或私营企业挂靠集体企业并以集体企业的名义从事生产经营活动的,在诉讼中,该个体工商户、个人合伙或私营企业与其挂靠的集体企业为共同诉讼人。

 
44. If, in the litigation, one party is dead and there is an inheritor, the litigation shall be ruled as suspended. The people's court shall timely notify the inheritor to participate in the litigation as the party concerned, and the litigation conducted by the deceased shall be valid for the inheritor that participates in the litigation. 44、在诉讼中,一方当事人死亡,有继承人的,裁定中止诉讼。人民法院应及时通知继承人作为当事人承担诉讼,被继承人已经进行的诉讼行为对承担诉讼的继承人有效。

 
45. If a person hired by an individual industrial and commercial household, leaseholding rural household or partnership organization causes damage to another person when conducting any production or business activities as prescribed in the employment contract, his employer shall be the party concerned. 45、个体工商户、农村承包经营户、合伙组织雇佣的人员在进行雇佣合同规定的生产经营活动中造成他人损害的,其雇主是当事人。

 
46. In the litigation, the owner registered on the business license of an individual industrial and commercial household shall be the party concerned. If the individual industrial and commercial household has a trade name, such trade name shall be stated in legal documents. 46、在诉讼中,个体工商户以营业执照上登记的业主为当事人。有字号的,应在法律文书中注明登记的字号。

If the owner registered on the business license is inconsistent with the actual business operator, the owner and the actual business operator shall be the co-litigants.
 
营业执照上登记的业主与实际经营者不一致的,以业主和实际经营者为共同诉讼人。

 
47. The whole partners for an individual partnership shall be the co-litigants in the litigation. If the individual partnership has a trade name as approved and registered according to law, such trade name shall be stated in legal documents. The whole partners can select representatives, and shall work out relevant papers for the representatives as selected. 47、个人合伙的全体合伙人在诉讼中为共同诉讼人。个人合伙有依法核准登记的字号的,应在法律文书中注明登记的字号。全体合伙人可以推选代表人;被推选的代表人,应由全体合伙人出具推选书。

 
48. If, after the arbitration agency has arbitrated or the people's mediation committee has meditated a dispute between the parties concerned, one party is not satisfied with the arbitration or mediation and files a lawsuit with a people's court, the other party shall be the defendant. 48、当事人之间的纠纷经仲裁机构仲裁或者经人民调解委员会调解,当事人不服仲裁或调解向人民法院提起诉讼的,应以对方当事人为被告。

 
49. If a legal person or any other organization that shall be registered is not registered but conducts civil activities in the name of legal person or other organization, or uses the name of another legal person or other organization under false pretenses for conducting civil activities, or after termination, the legal person or any other organization still uses its name for conducting civil activities, the person directly responsible shall be the party concerned. 49、法人或者其他组织应登记而未登记即以法人或者其他组织名义进行民事活动,或者他人冒用法人、其他组织名义进行民事活动,或者法人或者其他组织依法终止后仍以其名义进行民事活动的,以直接责任人为当事人。

 
50. In the case of amalgamation of enterprise legal persons, for a dispute over civil activities occurring before the amalgamation, the enterprises after amalgamation shall be the party concerned; in the case of split-off of an enterprise legal person, for a dispute over civil activities occurring before the split-off, the enterprises after split-off shall be co-litigants. 50、企业法人合并的,因合并前的民事活动发生的纠纷,以合并后的企业为当事人;企业法人分立的,因分立前的民事活动发生的纠纷,以分立后的企业为共同诉讼人。

 
51. If an enterprise legal person is directly deregistered without liquidation, and there is a liquidation organization, the liquidation organization shall be the party concerned; and if there is no liquidation organization, the body that made the decision on deregistration shall be the party concerned. 51、企业法人未经清算即被撤销,有清算组织的,以该清算组织为当事人;没有清算组织的,以作出撤销决定的机构为当事人。

 
52. For the loan of a business letter of introduction, special seal for contractual uses, blank sealed contract or bank account, the lending entity and the borrowing entity shall be co-litigants. 52、借用业务介绍信、合同专用章、盖章的空白合同书或者银行帐户的,出借单位和借用人为共同诉讼人。

 
53. For a lawsuit concerning a dispute over a guarantee contract, if the creditor claims its rights against the guarantor and the warrantee, the people's court shall take the guarantor and the warrantee as codefendants; if the creditor sues only against the guarantor, except that the guarantor shall assume the joint and several liability according to the guarantee contract, the people's court shall notify the warrantee to participate in litigation as the codefendant; and if the creditor sues only against the warrantee, the people's court may only take the warrantee as the defendant. 53、因保证合同纠纷提起的诉讼,债权人向保证人和被保证人一并主张权利的,人民法院应当将保证人和被保证人列为共同被告;债权人仅起诉保证人的,除保证合同明确约定保证人承担连带责任的外,人民法院应当通知被保证人作为共同被告参加诉讼;债权人仅起诉被保证人的,可只列被保证人为被告。

 
54. If, in a lawsuit of inheritance, only part of inheritors file the lawsuit, the people's court shall notify other inheritors to participate in litigation as co-plaintiffs; if any inheritors as notified are not willing to participate in litigation but do not clearly express their waiver of substantive rights, the people's court shall still take them ass co-plaintiffs. 54、在继承遗产的诉讼中,部分继承人起诉的,人民法院应通知其他继承人作为共同原告参加诉讼;被通知的继承人不愿意参加诉讼又未明确表示放弃实体权利的,人民法院仍应把其列为共同原告。

 
55. If the principal and the agent assume the joint and several liability, they shall be co-litigants. 55、被代理人和代理人承担连带责任的,为共同诉讼人。

 
56. If, after the right of a common property was damaged by another person, only part of common property right holders file a lawsuit, other common property right holders shall be taken as co-litigants. 56、共有财产权受到他人侵害,部分共有权人起诉的,其他共有权人应当列为共同诉讼人。

 
57. If the party that shall participate in litigation together fails to do so, the people's court shall notify him to participate in litigation according to Article 119 of the Civil Procedure Law; the party may also apply to the people's court as an additional party. The people's court shall examine the application filed by the party, and shall rule to reject the application if it is unreasonable; or shall notify in written form the additional party to participate in litigation if the application is reasonable. 57、必须共同进行诉讼的当事人没有参加诉讼的,人民法院应当依照民事诉讼法第一百一十九条的规定,通知其参加;当事人也可以向人民法院申请追加。人民法院对当事人提出的申请,应当进行审查,申请无理的,裁定驳回;申请有理的,书面通知被追加的当事人参加诉讼。

 
58. When the people's court adds any parties to a joint lawsuit, it shall give a notice to other parties concerned. If a plaintiff that shall be added has clearly waived his substantial rights, he may not be added; if the plaintiff is reluctant to participate in litigation but is also reluctant to waive substantial rights, he shall still be added as a co-plaintiff. His failure to participate in litigation will not affect the trial or decision of the people's court. 58、人民法院追加共同诉讼的当事人时,应通知其他当事人。应当追加的原告,已明确表示放弃实体权利的,可不予追加;既不愿意参加诉讼,又不放弃实体权利的,仍追加为共同原告,其不参加诉讼,不影响人民法院对案件的审理和依法作出判决。

 
59. The circumstance “one party has numerous litigants” as prescribed in Articles 54 and 55 of the Civil Procedure Law generally refers to ten persons or more. 59、民事诉讼法第五十四条和第五十五条规定的当事人一方人数众多,一般指十人以上。

 
60. If the exact number of litigants in one party that has numerous litigants is certain at the time of filing of the case according to Article 54 of the Civil Procedure Law, the whole parties concerned may select common representatives, or part of parties concerned may select their own representatives; if the parties can not select representatives, they may participate in litigation by themselves in a necessary joint action, or may file another lawsuit in a general joint action. 60、依照民事诉讼法第五十四条规定,当事人一方人数众多在起诉时确定的,可以由全体当事人推选共同的代表人,也可以由部分当事人推选自己的代表人;推选不出代表人的当事人,在必要的共同诉讼中可由自己参加诉讼,在普通的共同诉讼中可以另行起诉。

 
61. If the exact number of litigants in one party that has numerous litigants is uncertain at the time of filing of the case according to Article 55 of the Civil Procedure Law, the parties concerned may select common representatives; if the parties can not select representatives, the people's court may nominate representatives and then negotiate with the parties concerned; if the negotiation fails, the people's court may designate representatives among the parties that file the lawsuit. 61、依照民事诉讼法第五十五条规定,当事人一方人数众多在起诉时不确定的,由当事人推选代表人,当事人推选不出的,可以由人民法院提出人选与当事人协商,协商不成的,也可以由人民法院在起诉的当事人中指定代表人。

 
62. The number of “representatives” prescribed in Articles 54 and 55 of the Civil Procedure Law shall be two up to five, and each representative may authorize one or two persons as his litigation representatives. 62、民事诉讼法第五十四条和第五十五条规定的代表人为二至五人,每位代表人可以委托一至二人作为诉讼代理人。

 
63. For a case accepted according to Article 55 of the Civil Procedure Law, the people's court may make a public notice to notify the right holders to make registration at the people's court. The term of public notice shall be determined based on the specific case and shall not be less than 30 days. 63、依照民事诉讼法第五十五条规定受理的案件,人民法院可以发出公告,通知权利人向人民法院登记。公告期根据具体案件的情况确定,最少不得少于三十日。

 
64. A party registered at the people's court according to Article 55 of the Civil Procedure Law shall prove his legal relationship with the opposing party and the damage he has suffered from. If he fails to do so, he will not be registered, and he can file a separate lawsuit. The judgment made by the people's court shall be enforced within the scope of registration. If a right holder that has not been registered files a lawsuit within the limitation of action, the people's court shall affirm his claim and rule to apply to the judgment or ruling it has rendered. 64、依照民事诉讼法第五十五条规定向人民法院登记的当事人,应证明其与对方当事人的法律关系和所受到的损害。证明不了的,不予登记,当事人可以另行起诉。人民法院的裁判在登记的范围内执行。未参加登记的权利人在诉讼时效期间内提起诉讼,人民法院认定其请求成立的,裁定适用人民法院已作出的判决、裁定。

 
65. According to Article 56 of the Civil Procedure Law, a third party with an independent claim to the subject matter of an action has the right to present claims, facts and reasons to the people's court and become a party concerned; and a third party without an independent claim to the subject matter of an action may apply for participation in litigation or be notified by the people's court to participate in litigation. 65、依照民事诉讼法第五十六条的规定,有独立请求权的第三人有权向人民法院提出诉讼请求和事实、理由,成为当事人;无独立请求权的第三人,可以申请或者由人民法院通知参加诉讼。

 
66. In the litigation, a third party without an independent claim to the subject matter of an action has thejudicial powerand obligations of the parties concerned, and has the right to file an appeal if being ordered to assume civil liability. However, this third party has no right to challenge the jurisdiction, waive or alter claims or apply for withdrawal of the action in the first instance. 66、在诉讼中,无独立请求权的第三人有当事人的诉讼权利义务,判决承担民事责任的无独立请求权的第三人有权提出上诉。但该第三人在一审中无权对案件的管辖权提出异议,无权放弃、变更诉讼请求或者申请撤诉。

 
67. In the litigation, the guardian of a person of no or limited capacity for civil conduct is his statutory agent. If the guardian has not been determined in advance, the persons qualified for guardianship may determine the guardian through negotiation; if they can not reach unanimity through negotiations, the people's court shall designate a statutory agent for litigation among the persons qualified for guardianship. If there is no guardian prescribed in Article 16 (1) or (2) or Article 17 (1) of the General Principles of the Civil Law for the party concerned, the people's court may designate a relevant organization prescribed in Article 16 (4) or Article 17 (3) of the General Principles of the Civil Law to act as the statutory agent during the course of litigation. 67、在诉讼中,无民事行为能力人、限制民事行为能力人的监护人是他的法定代理人。事先没有确定监护人的,可以由有监护资格的人协商确定,协商不成的,由人民法院在他们之间指定诉讼中的法定代理人。当事人没有民法通则第十六条第一、二款或者第十七条第一款规定的监护人的,可以指定该法第十六条第四款或者第十七条第三款规定的有关组织担任诉讼期间的法定代理人。

 
68. In addition to the lawyer, near relative, relevant social organization or the person recommended by the employer of a litigant, the litigant may also authorize any other citizens as his litigation representatives. However, a person of no or limited capacity for civil conduct, a person that may damage the interests of the principal, or a person considered by the people's court as unsuitable for the litigation representative shall not act as the litigation representative. 68、除律师、当事人的近亲属、有关的社会团体或者当事人所在单位推荐的人之外,当事人还可以委托其他公民为诉讼代理人。但无民事行为能力人、限制民事行为能力人或者可能损害被代理人利益的人以及人民法院认为不宜作诉讼代理人的人,不能作为诉讼代理人。

 
69. The power of attorney shall be submitted to the people's court by the party concerned before the court session. If the power of attorney only states “general agency” without specific items of authorization, the litigation representative has no right to admit, waive or alter claims, conduct mediation and file a counterclaim or appeal for the party concerned. 69、当事人向人民法院提交的授权委托书,应在开庭审理前送交人民法院。授权委托书仅写“全权代理”而无具体授权的,诉讼代理人无权代为承认、放弃、变更诉讼请求,进行和解,提起反诉或者上诉。

 
III. Evidence 三、证据

 
70. For collection and investigation of evidence, the people's court shall assign two or more clerks therefor. The investigation documents shall bear the signatures or seals of investigators, persons under investigation and the note-taker. 70、人民法院收集调查证据,应由两人以上共同进行。调查材料要由调查人、被调查人、记录人签名或盖章。

 
71. For the evidence submitted by the parties concerned, the people's court shall issue receipts, which shall indicate the name of evidence, time of receipt, number of copies and number of pages, as well as the signature or seal of the adjudicator or the court clerk. 71、对当事人提供的证据,人民法院应当出具收据,注明证据的名称、收到的时间、份数和页数,由审判员或书记员签名或盖章。

 
72. The evidence shall be exhibited at court, and be subject to debate and cross-examination in the court trial. For the evidence that shall be kept confidential, the people's court may decide whether or not to exhibit it in the court session in light of basic circumstances; and shall not openly exhibit it in the court session if it really needs to be exhibited. 72、证据应当在法庭上出示,并经过庭审辩论、质证。依法应当保密的证据,人民法院可视具体情况决定是否在开庭时出示,需要出示的,也不得在公开开庭时出示。

 
73. According to Article 64 (2) of the Civil Procedure Law, the evidence to be investigated and collected by the people's court shall contain: 73、依照民事诉讼法第六十四条第二款规定,由人民法院负责调查收集的证据包括:

1. Evidence that can not be obtained by one party or his litigation representative because of some realistic reasons;
 
(1)当事人及其诉讼代理人因客观原因不能自行收集的;

2. Evidence that needs to be identified or surveyed according to the opinions of the people's court;
 
(2)人民法院认为需要鉴定、勘验的;

3. Pieces of evidence submitted by the parties concerned contradict with each other and can not be identified; or
 
(3)当事人提供的证据互相有矛盾、无法认定的;

4. Other evidence the people's court considers that it needs to collect.
 
(4)人民法院认为应当由自己收集的其他证据。

 
74. During the course of litigation, one party shall assume the burden of proof for the claims it brings forward. However, in the following tort actions, if the defendant denies the tort claimed by the plaintiff, the defendant shall assume the burden of proof: 74、在诉讼中,当事人对自己提出的主张,有责任提供证据。但在下列侵权诉讼中,对原告提出的侵权事实,被告否认的,由被告负责举证:

1. Patent infringement action resulting from an invention patent of product manufacturing method;
 
(1)因产品制造方法发明专利引起的专利侵权诉讼;

2. Tort action for personal damage caused by highly dangerous operations;
 
(2)高度危险作业致人损害的侵权诉讼;

3. Action for damages caused by environmental pollution;
 
(3)因环境污染引起的损害赔偿诉讼;

4. Tort action for personal damage caused by the collapse, breaking off or falling of a building or other facilities or the thing that is laid or hung on the building;
 
(4)建筑物或者其他设施以及建筑物上的搁置物、悬挂物发生倒塌、脱落、坠落致人损害的侵权诉讼;

5. Tort action for personal damage caused by breeding of animals; or
 
(5)饲养动物致人损害的侵权诉讼;

6. Relevant legal provisions prescribe that the defendant shall assume the burden of proof.
 
(6)有关法律规定由被告承担举证责任的。

 
75. The parties concerned need not to assume the burden of proof for the following facts: 75、下列事实,当事人无需举证:

1. One party has clearly admitted the facts of a case or the claims as presented by the other party;
 
(1)一方当事人对另一方当事人陈述的案件事实和提出的诉讼请求,明确表示承认的;

2. Facts that are known by all people, natural laws and theorems;
 
(2)众所周知的事实和自然规律及定理;

3. Facts that can be induced from legal provisions or known facts;
 
(3)根据法律规定或已知事实,能推定出的另一事实;

4. Facts affirmed in the judgment of the people's court that has taken effect; and
 
(4)已为人民法院发生法律效力的裁判所确定的事实;

5. Facts that have been proved in the valid notarial reports.
 
(5)已为有效公证书所证明的事实。

 
76. For the evidence that can not be submitted by one party for a while, the people's court shall request the party to submit evidence within a designated reasonable term based on specific circumstances. If one party really has difficulty in submission of evidence within the designated term, he shall apply to the people's court for postponement before expiry of the designated term, and the term to be postponed shall be decided by the people's court. 76、人民法院对当事人一时不能提交证据的,应根据具体情况,指定其在合理期限内提交。当事人在指定期限内提交确有困难的,应在指定期限届满之前,向人民法院申请延期。延长的期限由人民法院决定。

 
77. The certification documents submitted by a relevant entity to the people's court according to Article 65 of the Civil Procedure Law shall bear the signature or seal of the person in charge of the entity, as well as the seal of the entity. 77、依照民事诉讼法第六十五条由有关单位向人民法院提出的证明文书,应由单位负责人签名或盖章,并加盖单位印章。

 
78. Where the evidence materials are photocopies, if the provider refuses to submit originals or clues of originals, there is no other evidence that can confirm the said evidence materials, and the opposing party refuses to recognize them, the said evidence materials shall not be taken as the grounds for affirmation of facts in the litigation. 78、证据材料为复制件,提供人拒不提供原件或原件线索,没有其他材料可以印证,对方当事人又不予承认的,在诉讼中不得作为认定事实的根据。

 
IV Time Periods or Service 四、期间或送达

 
79. According to Article 75 (2) of the Civil Procedure Law, all the time periods calculated by day in civil proceedings shall start from the next day. 79、依照民事诉讼法第七十五条第二款规定,民事诉讼中以日计算的各种期间均从次日起算。

 
80. For the “time period for placing a case on file” as prescribed in Article 112 of the Civil Procedure Law, if the bill of complaint is not complete and the plaintiff is ordered to supplement it, the said time period shall start from the next day after the plaintiff has supplemented the bill of complaint. If a case is transferred from a superior people's court to a lower people's court or from a grassroots people's court to the relevant people's tribunal for acceptance, the said time period shall start from the next day after the people's court or tribunal with which the lawsuit is filed has received the bill of complaint. 80、民事诉讼法第一百一十二条规定的立案期限,因起诉状内容欠缺令原告补正的,从补正后交人民法院的次日起算。由上级人民法院转交下级人民法院,或者由基层人民法院转交有关人民法庭受理的案件,从受诉人民法院或人民法庭收到起诉状的次日起算。

 
81. For the service of litigation documents on a legal person or other organization, the legal representative of the legal person or the main person in-charge of the organization or the person in the office, mail room or janitor's room responsible for receipt of mails shall sign for litigation documents or bear seals; otherwise, the service by leaving the rejected legal document at the place of abode shall be applied. 81、向法人或者其他组织送达诉讼文书,应当由法人的法定代表人、该组织的主要负责人或者办公室、收发室、值班室等负责收件的人签收或盖章,拒绝签收或者盖章的,适用留置送达。

 
82. If the recipient refuses to accept a litigation document, and the representative of the relevant grassroots organization or the employer of the recipient as well as other witnesses are unwilling to affix a signature or seal on the receipt of service, the person serving the document shall give indication of the circumstance on the receipt of service, and leave the legal document at the abode of the recipient, and then the service shall be considered completed. 82、受送达人拒绝接受诉讼文书,有关基层组织或者所在单位的代表及其他见证人不愿在送达回证上签字或盖章的,由送达人在送达回证上记明情况,把送达文书留在受送达人住所,即视为送达。

 
83. If the recipient has a litigation representative, the people's court may serve the legal document either on the recipient or on his litigation representative. If the recipient has designated his litigation representative for receipt of legal document, the service by leaving the rejected legal document at the place of abode may be applied in the case of service of a legal document on the litigation representative. 83、受送达人有诉讼代理人的,人民法院既可以向受送达人送达,也可以向其诉讼代理人送达。受送达人指定诉讼代理人为代收人的,向诉讼代理人送达时,适用留置送达。

 
84. A mediation paper shall be served directly on the parties concerned, and the service by leaving the rejected legal document at the place of abode shall not be applied. If any parties concerned can not sign for the mediation paper by himself, he can designate an agent for doing so. 84、调解书应当直接送达当事人本人,不适用留置送达。当事人本人因故不能签收的,可由其指定的代收人签收。

 
85. For the service by post, a receipt of service shall be attached. If the date of receipt as stated on the receipt of a registered letter is inconsistent with the one as stated on the receipt of service, or the receipt of service has not been mailed back, the date of receipt as indicated on the receipt of a registered letter shall be the date of service. 85、邮寄送达,应当附有送达回证。挂号信回执上注明的收件日期与送达回证上注明的收件日期不一致的,或者送达回证没有寄回的,以挂号信回执上注明的收件日期为送达日期。

 
86. If a legal document is served by the entrusted people's court according to Article 80 of the Civil Procedure Law, the entrusting people's court shall issue a power of attorney and attach the legal document for service and the receipt of service, and the date stated by the recipient on the receipt of service shall be the date of service. 86、依照民事诉讼法第八十条规定,委托其他人民法院代为送达的,委托法院应当出具委托函,并附需要送达的诉讼文书和送达回证,以受送达人在送达回证上签收的日期为送达日期。

 
87. If a legal document is forwarded by a relevant entity according to Article 81 or 82 of the Civil Procedure Law, the date of receipt as stated by the recipient on the receipt of service shall be the date of service. 87、依照民事诉讼法第八十一条和第八十二条规定,诉讼文书交有关单位转交的,以受送达人在送达回证上注明的签收日期为送达日期。

 
88. For the service by public notice, a public notice shall be posted on the bulletin board of the court or at the original domicile of the recipient or on the newspaper. Where there are special requirements for the service by public notice, the public notice shall be made in the required manner. After expiration of the term of public notice, the service shall be considered as completed. 88、公告送达,可以在法院的公告栏、受送达人原住所地张贴公告,也可以在报纸上刊登公告;对公告送达方式有特殊要求的,应按要求的方式进行公告。公告期满,即视为送达。

 
89. For the service of the duplicate of a bill of complaint or a petition for appeal by public notice, the people's court shall indicate the key points of complaint or appeal, the term for the recipient to make defense as well as the legal consequences if the recipient fails to make defense within the stipulated term. For the service of a subpoena by public notice, the people's court shall indicate the place and time for court appearance as well as the legal consequences if the recipient fails to appear in court at the designated place and time. For the service of a judgment or ruling, the people's court shall indicate main adjudication items, as well as the rights of appeal, term of appeal and the appellate people's court in the case of the first instance. 89、公告送达起诉状或上诉状副本的,应说明起诉或上诉要点,受送达人答辩期限及逾期不答辩的法律后果;公告送达传票,应说明出庭地点、时间及逾期不出庭的法律后果;公告送达判决书、裁定书的,应说明裁判主要内容,属于一审的,还应说明上诉权利、上诉期限和上诉的人民法院。

 
90. If any parties concerned reject to sign for a judgment or ruling when the people's court pronounces a judgment or ruling at fixed time, the service shall be considered as completed, and the circumstance shall be indicated in the transcripts of pronouncement. 90、人民法院在定期宣判时,当事人拒不签收判决书、裁定书的,应视为送达,并在宣判笔录中记明。

 
V. Mediation 五、调解

 
91. If, after acceptance of a case, the people's court deems upon examination that the legal relationship is explicit and facts are clear, it can directly conduct mediation after having solicited the consent of both parties. 91、人民法院受理案件后,经审查,认为法律关系明确、事实清楚,在征得当事人双方同意后,可以迳行调解。

 
92. When the people's court hears civil cases, it shall conduct mediation on the principle of free will and legality. If one party or both parties are unwilling to conduct mediation, the people's court shall render judgment in a timely manner. 92、人民法院审理民事案件,应当根据自愿和合法的原则进行调解。当事人一方或双方坚持不愿调解的,人民法院应当及时判决。

The people's court shall conduct mediation when hearing the cases of divorce, but shall not conduct long-term mediation with no decisive results.
 
人民法院审理离婚案件,应当进行调解,但不应久调不决。

 
93. When the people's court mediates a case, if the parties can not appear in court, upon special authorization, his authorized agent can participate in mediation, and the mediation agreement as concluded may be signed by his authorized agent. 93、人民法院调解案件时,当事人不能出庭的,经其特别授权,可由其委托代理人参加调解,达成的调解协议,可由委托代理人签名。

If one party to a case of divorce can not appear in court for mediation under a special circumstance, except that that party himself can not express his ideas, he shall present written opinions.
 
离婚案件当事人确因特殊情况无法出庭参加调解的,除本人不能表达意志的以外,应当出具书面意见。

 
94. For a case of divorce in which one party is a person of no capacity for civil conduct, his statutory agent shall participate in litigation for him. If the statutory agent reached an agreement with the other party and requests to issue a judgment, the people's court can work out a judgment based on the contents in the agreement. 94、无民事行为能力人的离婚案件,由其法定代理人进行诉讼。法定代理人与对方达成协议要求发给判决书的,可根据协议内容制作判决书。

 
95. If one party refuses to sign for the mediation paper, the mediation paper will not come into effect, and the people's court shall notify the other party in a timely manner. 95、当事人一方拒绝签收调解书的,调解书不发生法律效力,人民法院要及时通知对方当事人。

 
96. If the mediation paper can not be served on both parties at court, the day when the party that receives the mediation paper behind makes signature shall be the day when the mediation paper comes into effect. 96、调解书不能当庭送达双方当事人的,应以后收到调解书的当事人签收的日期为调解书生效日期。

 
97. For a case in which a third party without an independent claim to the subject matter of an action is a participant, if the people's court needs to impose obligation on the third party at the time of mediation, upon consent of the third party, the mediation paper shall be served on the third party at the same time. If the third party goes back on his words before the mediation paper is served, the people's court shall render the judgment in a timely manner. 97、无独立请求权的第三人参加诉讼的案件,人民法院调解时需要确定无独立请求权的第三人承担义务的,应经第三人的同意,调解书应当同时送达第三人。第三人在调解书送达前反悔的,人民法院应当及时判决。

 
VI. Property Preservation and Advance Execution 六、财产保全和先予执行

 
98. If the people's court orders an applicant to provide security when adopting the measure of property preservation before the institution of an action or during the course of an action according to Article 92 or 93 of the Civil Procedure Law, the amount of security shall be equal to the amount asked for preservation. 98、人民法院依照民事诉讼法第九十二条、第九十三条规定,在采取诉前财产保全和诉讼财产保全时责令申请人提供担保的,提供担保的数额应相当于请求保全的数额。

 
99. When a people's court adopts the measure for preservation of seasonal goods, fresh or decayable goods, or goods unsuitable for long-time preservation, it can order the party concerned to timely dispose of the said goods and keep money therefrom; and when necessary, the people's court may sell off the said goods and keep the money. 99、人民法院对季节性商品、鲜活、易腐烂变质以及其他不宜长期保存的物品采取保全措施时,可以责令当事人及时处理,由人民法院保存价款;必要时,人民法院可予以变卖,保存价款。

 
100. When a people's court adopts the measures of seizure or detention of property during the course of property preservation, it shall properly keep the property as seized or detained. The parties concerned, the relevant entity or individual responsible for custody as well as the people's court shall not use the said property. 100、人民法院在财产保全中采取查封、扣押财产措施时,应当妥善保管被查封、扣押的财产。当事人、负责保管的有关单位或个人以及人民法院都不得使用该项财产。

 
101. When the people's court adopts the measure of property preservation to irremovable property or specific removable property (such as vehicles and ships, etc.), it may adopt the measure of property preservation by seizing the certificate of relevant property entitlements and informing the relevant property right registration department not to handle the transfer formality for the relevant property; and when necessary, the people's court may seize or detain the relevant property. 101、人民法院对不动产和特定的动产(如车辆、船舶等)进行财产保全,可以采用扣押有关财产权证照并通知有关产权登记部门不予办理该项财产的转移手续的财产保全措施;必要时,也可以查封或扣押该项财产。

 
102. A people's court may adopt the measure of property preservation to the object under mortgage or lien, but the mortgagee or lienor has the priority of compensation. 102、人民法院对抵押物、留置物可以采取财产保全措施,但抵押权人、留置权人有优先受偿权。

 
103. For a case of appeal filed because the party is not satisfied with the judgment of first instance, if the party concerned transfers, hides, sells or destroys the property before the people's court of second instance receives the case as filed, and the measure of property preservation shall be adopted, the people's court of first instance can adopt the measure of property preservation upon application of the party concerned or upon the strength of its authority. The ruling about property preservation made by the people's court of first instance shall be timely reported to the people's court of second instance. 103、对当事人不服一审判决提出上诉的案件,在第二审人民法院接到报送的案件之前,当事人有转移、隐匿、出卖或者毁损财产等行为,必须采取财产保全措施的,由第一审人民法院依当事人申请或依职权采取。第一审人民法院制作的财产保全的裁定,应及时报送第二审人民法院。

 
104. For the receivable proceeds due to the debtor, the people's court may adopt the measure of property preservation and restrict the debtor from drawing these proceeds, and notify the relevant entity to offer assistance in the execution. 104、人民法院对债务人到期应得的收益,可以采取财产保全措施,限制其支取,通知有关单位协助执行。

 
105. If the debtor's properties are not enough for the request for property preservation but the debtor has mature creditor's rights to the third party, the people's court may rule, upon application of the creditor, that the thirty party shall not make payment to the debtor. If the third party requests to make payment, the property or money shall be submitted to the people's court. 105、债务人的财产不能满足保全请求,但对第三人有到期债权的,人民法院可以依债权人的申请裁定该第三人不得对本案债务人清偿。该第三人要求偿付的,由人民法院提存财物或价款。

 
106. The “advance execution” prescribed in the Civil Procedure Law shall be conducted by the people's court after a case has been accepted but before the final judgment is made. The advance execution shall be limited to the scope of claims of the party concerned and to the urgent needs for the life, production or business operation of the party concerned. 106、民事诉讼法规定的先予执行,人民法院应当在受理案件后终审判决作出前采取。先予执行应当限于当事人诉讼请求的范围,并以当事人的生活、生产经营的急需为限。

 
107. The “emergencies” prescribed in Article 97(c) in the Civil Procedure Law include: 107、民事诉讼法第九十七条第(三)项规定的紧急情况,包括:

1. It is necessary to immediately stop infringement and remove obstacle;
 
(1)需要立即停止侵害、排除妨碍的;

2. It is necessary to immediately stop some act;
 
(2)需要立即制止某项行为的;

3. It is necessary to immediately return the money for purchase of production raw materials and production tools; and
 
(3)需要立即返还用于购置生产原料、生产工具货款的;

4. The insurance compensation in the urgent need for recovery of production or business operation.
 
(4)追索恢复生产、经营急需的保险理赔费的。

 
108. After a people's court rules to take the measure of property preservation, except that the people's court that rendered the preservation ruling or the superior thereof removes the property measure, no entity may remove the property measure within the term of property preservation. 108、人民法院裁定采取财产保全措施后,除作出保全裁定的人民法院自行解除和其上级人民法院决定解除外,在财产保全期限内,任何单位都不得解除保全措施。

 
109. The validity of a property preservation ruling in the litigation shall generally extend to the time when the effective legal document is enforced. If the preservation measure needs to be removed during the course of litigation, the people's court shall timely render a ruling to remove the preservation measure. 109、诉讼中的财产保全裁定的效力一般应维持到生效的法律文书执行时止。在诉讼过程中,需要解除保全措施的,人民法院应及时作出裁定,解除保全措施。

 
110. For a reconsideration application filed by the party concerned regarding the objection to accept the ruling of property preservation or advance execution, the people's court shall timely examine it. The people's court shall notify to reject the application of the party concerned if the ruling is correct; or shall render a new ruling to alter or cancel the original ruling if the original ruling is improper. 110、对当事人不服财产保全、先予执行裁定提出的复议申请,人民法院应及时审查。裁定正确的,通知驳回当事人的申请;裁定不当的,作出新的裁定变更或者撤销原裁定。

 
111. If, after the advance execution by the people's court, an applicant shall return the proceeds obtained from advance execution according to the judgment that has come into force, Article 214 of the Civil Procedure Law shall be applied. 111、人民法院先予执行后,依发生法律效力的判决,申请人应当返还因先予执行所取得的利益的,适用民事诉讼法第二百一十四条的规定。

 
VII. Compulsory Measures against Obstruction of Civil Actions 七、对妨害民事诉讼的强制措施

 
112. The “defendant that shall appear in court” as prescribed in Article 100 of the Civil Procedure Law refers to the defendant who has the obligation of support, upbringing or maintenance and whose appearance in court is indispensable for finding of case facts. 112、民事诉讼法第一百条规定的必须到庭的被告,是指负有赡养、抚育、扶养义务和不到庭就无法查清案情的被告。

If the statutory agent of a minor who causes damage to the State, the collective or another person must appear in court, and he has been served twice with subpoena but still refuses to appear in court without legitimate reasons, the people's court may summon him to court by force.
 
给国家、集体或他人造成损害的未成年人的法定代理人,如其必须到庭,经两次传票传唤无正当理由拒不到庭的,也可以适用拘传。

 
113. A warrant shall be issued for the summon by force and be directly served on the summoned person. Before the summon by force, the summoned person shall be informed of the consequences in the case of refusal to appear in court, and may be summoned to court by force if he still refuses to appear in court after criticism and education. 113、拘传必须用拘传票,并直接送达被拘传人;在拘传前,应向被拘传人说明拒不到庭的后果,经批评教育仍拒不到庭的,可拘传其到庭。

 
114. If a people's court needs to detain any litigation participants or others according to Article 101 or 102 of the Civil Procedure Law, it shall be subject to approval by the court president, a written decision of detention shall be made, and the detainee shall be transferred by judicial police to the local public security organ for custody.
......
 114、人民法院依照民事诉讼法第一百零一条、第一百零二条的规定,需要对诉讼参与人和其他人采取拘留措施的,应经院长批准,作出拘留决定书,由司法警察将被拘留人送交当地公安机关看管。
......

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