As more and more companies going abroad to do business or make a cross-border deal, control of international legal risks are becoming increasingly important. As a lawyer, I have to say that indeed there are a few international dealers cheated or scammed due to lack of risk awareness, even though most of international businesses would be a good experience. Continue reading
The Latest Changes on Civil Procedure Law of China
On Dec.24,2021, the Civil Procedure Law of China was revised according to the Standing Committee of the National People’s Congress. The major changes are as follows:
1. It is possible for a single judge alone to preside over the trial of an ordinary procedure, supposed that the fact is clear and right and obligation is definite. Previously, only a panel of at least three judges is allowed to try a case in an ordinary procedure.
2. All documents in a lawsuit could be delivered by an electronic way, including Judgement, mediation statement and etc., if the participants agree so.
3. The time frame of a summary procedure is extended from three months to four months. Previously, the trial in the summary procedure must be finished in three months upon filing, but with this latest revision, the time frame could be extended for an additional month if it’s approved by the president of the court.
4. For simple case of small amount, the trial may be finalized in one instance. Generally, what’s implemented in China is double trial of a case, including trial of first instance and trial of second instance, however with this revision, it is allowed to finalize a simple case of small amount in one trial.
5. The trial of second instance is allowed to try a case without formal hearing. In the past, a trial panel should have a formal hearing on an applellate case, but with the effect of the latest revision, it is allowed for the panel to decide a case without formal hearing if the panel thinks a formal hearing is not necessary.
Above is some of the big changes for the civil procedure laws applicable in China and it’s only summary comments. If you have any question on it or you face a legal issue or you have a case at hand, you’d better to consult a lawyer for details or look it up in the whole text.
Choose a right name
the first step to register a company is to choose a name for your company. A name is very important because it identify your company from others. To have an impressive name may be an advantage for you to do business. Continue reading
Contract review: mind the contracting party.
This is the second time I compose an article on such a subject, because I recognize that to check parties who are literally involved in a contract is of the most importance in reviewing a contract, whereas most contractors tend to ignore it, even for the legal occupant. Continue reading
When someone ilegally threat you to ask for something,usually it’s money or other property, by violence or other methods. It is deemed as extortion.
What is extortion crime?
The provision 274 of criminal law of China says: the one who extorts to obain public or priviate property,if the amount is comparatively big or mutiple times of extortion, shall be sentenced to imprisonment of less than three years, or criminal detention,or public surveillance, plus fine; in the circumstance that the amount is huge or of other severity,the sentence shall be above three and less than ten years, plus fine; in the circumstance that the amount is very huge or of other extreme severity, he shall be sentenced to imprisonment of more than ten years, plus fine.
Recently I handled a case in which a foreign invested company in China decided to dismiss several employees who are suspected of bribery. The corporate HR manager came to our lawyers’ office to consult about the pre-plan and possible risk therein.Actually, most of corporations may encounter such problems. Here below, I’d like to share some of my suggestions regarding such cases:
First of all, bear in mind that it’s a company’s obligation to prove that the employee should should have been dismissed according to the labor law of China. In case that a company who dismisses a employee fails to raise enough proofs to substantiate his/her dismissal, then the company, rather than the employee, shall take the risks of being lost because of failure to do so.
The circumstances in which a company could possibly justify its dismissal are stipulated in the clause 2 and 6 of article 39 under the law of labor contract of China. Article 39 of Labor Contract Law says: the employer may have the labor contract cancelled if a worker is found in any of the following circumstances: (2) seriously violating the rules and regulations of the employing unit; (6) being investigated for criminal responsibility in accordance with law.
To substantiate the legitimacy of dismissal, a company could take different measures by in consideration of a particular bribery. In a case that an employee dishonestly accepts a comparatively bigger amount of money, the police may be involve to start a criminal investigation. In this situation, the company may wait for the conclusion of the police’s investigation. Subsequently, the company may send a notice of dismissal in case that is a bribery based on the conclusion.
However, there are many bribery cases into which no police is involved to investigate, partly because the amount don’t reach the standards of a criminal registration or any other reason. In such circumstance it is hard for the company to present enough proofs justify the dismissal. According to a search to the existing court or arbitration decisions , we found that most of the dismissals were adjudicated to be illegal and/or overthrown by the court/arbitration decision, and only a few of the dismissals are maintained.
Therefore, the companis in China should be very careful to take measures of cancellation of a labor contract. To substantiate the lawfulness to dismiss an employee pursuant to clause 2 of article 39 of labor contract law: it’s not enough for an employer to make a corporate regulation to declaim the circumstances in which an employee should be dismissed, but also such regulation should be acknowledged by employees in , and furthermore but also enough evidence should be gathered to convict the bribery.
Mind the signatories in reviewing a contract.
An energy company in US (Party A) entered into a sales contract with a Chinese energy company (Party B) on Nov.30th,2007, where the Party B signed the contract in the name of its subsidiary, HK limited company. Continue reading
I, a lawyer, recently defended for a client who came from America and was accused of drug trafficking in China. I participated the Investigation Stage, Prosecution Stage and the Court Stage, Finally, the defendant was sentence to imprisonment of one year and two monthes, plus fine and confiscation of illegal income. Continue reading