Das Wiederaufnahmeverfahren des chinesischen Zivilprozessrechts im Wandel: Von der „Petitionskultur“ zur Parteiherrschaft? (The Reopening of Cases in the Civil Procedure Law of the People’s Republic of China: From a 'Culture of Petitioning' Towards the Principle of Party Disposition?)
Knut Benjamin Pissler
Max Planck Institute for Comparative and International Private Law
Thomas Von Hippel
affiliation not provided to SSRN
Journal of Chinese Law (ZChinR), Vol. 17, No. 4, pp. 349-375, December 2010
Max Planck Private Law Research Paper No. 11/1
The reopening of cases in China is often criticized: The preconditions for reopening of cases are said to be so low that this procedure effectively is a kind of a further instance of appeal besides the two instances provided for by the law itself. In the absence of an adequate safeguarding of res judicata there are voices claiming that “[…] finality simply does not exist in China“.
An explanation of this phenomenon might be seen in the “Culture of Petitioning” in Imperial China, when the notion of res judicata was alien. Judgments were considered to be “results of mutual consent of the parties”, subject to amendments through renegotiations at any time. Means of this culture were so called “letters and visits” (xin fang) surviving until the present time in China.
With the revision of the Regulations on Letters and Visits in 2005 and the Civil Procedure Law in 2007 the procedure for applying for reopening of cases was formalized and refined. Nevertheless, there is evidence that the people’s courts had difficulties to implement the new legislation.
Therefore, the Supreme People’s Court (SPC) has promulgated a series of judicial interpretations in 2008 and 2009 in order to annotate the legal requirements for the reopening of cases in accordance with the Articles 177 to 190 Civil Procedure Law. In its judicial interpretations the SPC clarifies that the procedure of reopening of cases consists of three phases: (1) an initiation phase, in which the reopening procedure is initiated either ex officio or the court decides on the acceptance of the application of the parties to reopen a case; (2) the reopening procedure in the strict sense, in which the court decides, whether or not the case has to be reopened; and (3) the renewed decision on the reopened case by the court.
Note: Downloadable document is in German.
Number of Pages in PDF File: 79
Keywords: Civil procedure law, People’s Republic of China, Letters and Visits (xin fang), Supreme People’s Court, judicial interpretation, reopening of cases, res judicataAccepted Paper Series
Date posted: January 10, 2011 ; Last revised: January 31, 2013
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