涉外诉讼:
涉外民事诉讼程序的一般原则(General Principle of Legal Proceeding)
涉外民事诉讼的管辖(Jurisdiction)
诉讼财产保全
涉外民事诉讼程序的一般原则(General Principle of Legal Proceeding)
1.适用中国法律
在中国进行民事诉讼,适用中国法律,中国缔结或者参加的国际条约同中国法律有不同规定的,适用该国际条约的规定(中国声明保留的条款除外)。
2.外交豁免
对享有外交特权与豁免的外国人、外国组织或者国际组织提起的民事诉讼,应当依照中国有关法律和中国缔结或者参加的国际条约的规定办理。
3.诉讼语言
人民法院审理涉外民事案件,应当使用中国通用的语言、文字。当事人要求提供翻译的,可以提供,费用由当事人承担。
4.委托律师
外国人、无国籍人、外国企业和组织在人民法院起诉、应诉,需要委托律师代理诉讼的,必须委托中国的律师。 在中国领域内没有住所的外国人、无国籍人、外国企业和组织委托中国律师或者其他人代理诉讼,从中国领域外寄交或者托交的授权委托书,应当经所在国公证机关证明,并经中国驻该国使领馆认证,或者履行中国与该所在国订立的有关条约中规定的证明手续后,才具有效力。
The provisions of this Part shall be applicable to civil proceedings within the territory of the People's Republic of China in regard to cases involving foreign element. Where it is not covered by the provisions of this Part, other relevant provisions of this Law shall apply.
If an international treaty concluded or acceded to by the People's Republic of China contains provisions that differ from provisions of this Law, the provisions of the international treaty shall apply, except those on which China has made reservations.
Civil actions brought against a foreign national, a foreign organization or an international organization that enjoys diplomatic privileges and immunities shall be dealt with in accordance with the relevant law of the People's Republic of China and the provisions of the international treaties concluded or acceded to by the People's Republic of China.
The people's court shall conduct trials of civil cases involving foreign element in the spoken and written language commonly used in the People's Republic of China. Translation may be provided at the request of the parties concerned, and the expenses shall be borne by them.
When foreign nationals, stateless persons or foreign enterprises and organizations need lawyers as agents ad litem to bring an action or enter appearance on their behalf in the people's court, they must appoint lawyers of the People's Republic of China.
Any power of attorney mailed or forwarded by other means from outside the territory of the People's Republic of China by a foreign national, stateless person or a foreign enterprise and organization that has no domicile in the People's Republic of China for the appointment of a lawyer or any other person of the People's Republic of China as an agent ad litem must be notarized by a notarial office in the country of domicile and authenticated by the Chinese embassy or consulate accredited to that country or, for the purpose of verification, must go through the formalities stipulated in the relevant bilateral treaties between China and that country before it becomes effective.
涉外民事诉讼的管辖
1.地域管辖
因合同纠纷或者其他财产权益纠纷,对在中国领域内没有住所的被告提起的诉讼,如果合同在中国领域内签订或者履行,或者诉讼标的物在中国领域内,或者被告在中国领域内有可供扣押的财产,或者被告在中国领域内设有代表机构,可以由合同签订地、合同履行地、诉讼标的物所在地、可供扣押财产所在地、侵权行为地或者代表机构住所地人民法院管辖。
2.协议管辖
涉外合同或者涉外财产权益纠纷的当事人,可以用书面协议选择与争议有实际联系的地点的法院管辖。选择中国人民法院管辖的,不得违反本法关于级别管辖和专属管辖的规定。
涉外民事诉讼的被告对人民法院管辖不提出异议,并应诉答辩的,视为承认该人民法院为有管辖权的法院。
3.专属管辖
因在中国履行中外合资经营企业合同、中外合作经营企业合同、中外合作勘探开发自然资源合同发生纠纷提起的诉讼,由中国人民法院管辖。
In the case of an action concerning a contract dispute or other disputes over property rights and interests, brought against a defendant who has no domicile within the territory of the People's Republic of China, if the contract is signed or performed within the territory of the People's Republic of China, or if the object of the action is located within the territory of the People's Republic of China, or if the defendant has distrainable property within the territory of the People's Republic of China, or if the defendant has its representative office within the territory of the People's Republic of China, the people's court of the place where the contract is signed or performed, or where the object of the action is, or where the defendant's distrainable property is located, or where the torts are done, or where the defendant's representative office is located, shall have jurisdiction.
Parties to a dispute over a contract concluded with foreign element or over property rights and interests involving foreign element may, through written agreement, choose the court of the place which has practical connections with the dispute to exercise jurisdiction. If a people's court of the People's Republic of China is chosen to exercise jurisdiction, the provisions of this Law on jurisdiction by forum level and on exclusive jurisdiction shall not be violated.
If in a civil action in respect of a case involving foreign element, the defendant raises no objection to the jurisdiction of a people's court and responds to the action by making his defence, he shall be deemed to have accepted that this people's court has jurisdiction over the case.
Actions brought on disputes arising from the performance of contracts for Chinese-foreign equity joint ventures, or Chinese-foreign contractual joint ventures, or Chinese-foreign cooperative exploration and development of the natural resources in the People's Republic of China shall fall under the jurisdiction of the people's courts of the People's Republic of China.
诉讼财产保全(Property Preservation)
1.诉讼财产保全
当事人、利害关系人可以向人民法院申请诉讼财产保全或诉前财产保全。
2.财产保全的解除、赔偿
人民法院裁定准许诉前财产保全后,申请人应当在三十日内提起诉讼。逾期不起诉的,人民法院将解除财产保全。
人民法院裁定准许财产保全后,被申请人提供担保的,人民法院应当解除财产保全。
申请有错误的,申请人应当赔偿被申请人因财产保全所遭受的损失。
The parties to an action may, in accordance with the provisions of Article 92 of this Law, apply to the people's court for property preservation.
Interested parties may, in accordance with the provisions of Article 93 of this Law, apply to the people's court for property preservation before an action is brought.
After a people's court makes an order granting property preservation before litigation, the applicant shall bring an action within 30 days. If he fails to bring the action within the period, the people's court shall cancel the property preservation.
After the people's court makes an order granting property preservation, if the party against whom the application is made provides a guaranty, the people's court shall cancel the property preservation.
If the application is wrongfully made, the applicant shall compensate the party against whom the application is made for losses incurred from the property preservation.
If the property to be preserved by a people's court needs supervision, the court shall notify the unit concerned to be responsible for the supervision, and the party against whom the application is made shall bear the expenses.
The order to cancel the preservation issued by a people's court shall be carried out by an execution officer.