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Procedures for divorce cases in Chinese courts

date:2019/11/25 Clicks:106
According to the current Chinese law, the Chinese courts are divided into four levels: Primary People's Courts, Intermediate People's Court, Higher People's Courts and the Supreme People's Court of the People's Republic of China (Hereinafter referred to as the SPC). The Primary People's Courts shall be located in counties, autonomous counties, cities not divided into districts or municipal districts; Intermediate People's Courts are located in municipalities directly under the jurisdiction of a province or autonomous region, municipalities directly under the central government, autonomous prefectures; The Higher People's Courts shall be established in provinces, autonomous regions and municipalities directly under the central government; The SPC is located in the capital Beijing. The SPC is the highest court in China and directs the hearing of cases in courts all over the country.
The people's court adopt the system of the court of second instance being that of last instance. The so-called the system of the court of second instance being that of last instance means that after that a civil litigation case is tried by the first-instance people's court (according to the circumstances of the case and the subject matter of the property, the first-instance people's court may be the primary people's court, the intermediate people's court or the higher people's court), one or both parties to the first instance are dissatisfied on the judgement which was made by the first-instance people's court and appeal to the second-instance people's court, the judgment which is made by the second-instance people's court is the final judgment. The judgment of the second-instance people's court is immediately legally effective. Divorce case is a kind of civil cases and also follows the system of the court of second instance being that of last instance. The general procedure is as follows:
1.Procedure of first instance.
If a party brings a lawsuit to the people's court that has jurisdiction over the case, under normal circumstances, the court shall immediately file the case after receiving the materials such as the plaintiff's complaint, and the court shall decide whether to file the case within 7 days if the case is complicated. If the court decides not to accept the case, the court shall return the documents and materials to the plaintiff and give reasons for the rejection. The defendant shall submit a written defence or jurisdiction objection to the court, within 15 days from the date of receiving a copy of complaint which served by the court (if the defendant fails to submit a written defence within the prescribed time limit, the defendent may also make an oral reply in court).
After the court holds a court session, the divorce case is usually mediated first. If the mediation fails, the court shall make a judgment on whether the divorce is permitted and on the related matters such as property division and child support according to the trial situation.
2.Procedure of second instance.
If one or both parties appeal against the judgment of first instance, they shall appeal within 15 days from the date of receiving the judgment of first instance (if the last day is a statutory holiday, the time limit for filing an appeal shall be extended to the first working day after the statutory holiday). The appeal period of foreign-related divorce cases shall be 30 days. If the appeal is filed within the appeal period, the judgment of the first instance has not yet taken effect, and it needs to wait for the judgment of the second instance (The court of second instance may maintain the judgment of the first instance, or overturn the original judgment and make a new judgment, or send it back to the court of the first instance for retrial).
3.Procedure for trial supervision (retrial procedure).
If one or both parties are still not satisfied with the judgment of the second instance, they may, within six months, apply to a court at a higher level than the one that made the judgment of the second instance for a retrial. The validity and execution of the judgment of the second instance shall not be affected during the application for retrial. If the retrial court decides to accept the case after examination, it may make an order and suspend the execution of the judgment of the original trial according to the circumstances. The retrial court may also reject the applicant's retrial application directly.
4.Apply to the procuratorate for protest.
In China, the people's procuratorate has the function of supervising the people's court. Under any of the following circumstances, the parties may apply to the people's procuratorate for a protest: A. The people's court rejects the application for retrial; B. The people's court fails to make a ruling on the retrial application within the time limit; C. The judgment or ruling of the retrial is obviously wrong. The people's procuratorate shall, within three months, examine the application of the party and decide whether to file a protest or not. If the procuratorate decides to lodge a protest, the people's court must retry the case.
Author of this article:
Mingsheng LU
Chief Attorney of BONBONWU, Partner Attorney of Dentons (China), which consists of 45 offices and spans all of provinces and autonomous regions of China.
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