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?)

Journal of Chinese Law (ZChinR), Vol. 17, No. 4, pp. 349-375, December 2010

Max Planck Private Law Research Paper No. 11/1

79 Pages Posted: 10 Jan 2011 Last revised: 31 Jan 2013

See all articles by Knut Benjamin Pissler

Knut Benjamin Pissler

Max Planck Institute for Comparative and International Private Law

Thomas von Hippel

affiliation not provided to SSRN

Date Written: 2010

Abstract

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.

Keywords: Civil procedure law, People’s Republic of China, Letters and Visits (xin fang), Supreme People’s Court, judicial interpretation, reopening of cases, res judicata

Suggested Citation

Pissler, Knut Benjamin and von Hippel, Thomas, 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?) (2010). Journal of Chinese Law (ZChinR), Vol. 17, No. 4, pp. 349-375, December 2010; Max Planck Private Law Research Paper No. 11/1. Available at SSRN: https://ssrn.com/abstract=1736552

Knut Benjamin Pissler (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, D-20148
Germany

Thomas Von Hippel

affiliation not provided to SSRN ( email )

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