Sui Zhong Fa [2020] No.99
Notice of Guangzhou Intermediate People's Court on Issuing the Detailed Rules of Guangzhou Courtsfor Implementation of Optimizing Judicial Confirmation Procedure
To all primary courts and all departments of this Court,
In order to implement theDecision of the Standing Committee of the National People's Congress on Authorizing the Supreme People's Court to Carry Out the Pilot Program of the Reform of Separation between Complicated Cases and Simple Ones under Civil Procedure in Some Areas and the Measures for the Implementation of the Pilot Program of the Reform of Separation between Complicated Cases and Simple Ones under Civil Procedureof the Supreme People's Court, further strengthen the coordination between litigation and mediation in our city, promotes the diversified resolution of contradictions and disputes, these Rules are hereby formulated in light of the court trial practice in Guangzhou. These Rules have been discussed and adopted by the Judicial Committee of this Court on April 7, 2020 and approved by Guangdong Higher People's Court on June 1, 2020, and are hereby issued to you, please implement them carefully. Please promptly report any new situation or new problem encountered during the implementation to the Office of the Leading Group for Pilot Program of the Reform of Civil Litigation System of Guangzhou Intermediate People's Court.
Guangzhou Intermediate People's Court
June 17, 2020
Detailed Rules of Guangzhou Courtsfor Implementation of Optimizing Judicial Confirmation Procedure
In order to further strengthen the coordinationbetween litigation and mediation in our city and promote the diversified resolution of contradictions and disputes, in accordance with theCivil Procedure Law of the People's Republic of China, the People's Mediation Law of the People's Republic of China, the Decision of the Standing Committee of the National People's Congress on Authorizing the Supreme People's Court to Carry Out the Pilot Program of the Reform of Separation between Complicated Cases and Simple Ones under Civil Procedure in Some Areas, the Several Opinions on Establishing a Sound Conflict and Dispute Resolution Mechanism that Connects Litigation and Non-litigation, the Several Provisions on the Judicial Confirmation Procedure for the People's Mediation Agreements,and the Pilot Program of the Reform of Separation between Complicated Cases and Simple Ones under Civil Procedure, and the Measures for the Implementation of the Pilot Program of the Reform of Separation between Complicated Cases and Simple Ones under Civil Procedureof the Supreme People Court, and the Provisions on Further Strengthening theCoordinationbetweenLitigation and Mediationand the Opinions on Guiding the Judicial Confirmation of Non-litigation Mediation Agreementsof Guangdong Higher People's Court, these Rules are hereby formulated in light of the practice in Guangzhou.
1.The judicial confirmation of non-litigation mediation agreement mentioned in these Rules refers to a judicial acts that after the parties to a civil and commercial dispute have reached an agreement with the nature of a civil and commercial contract through mediation by the People's Mediation Committee, a specially invited mediation organization or a specially invited mediator, the parties apply to the intermediate people's courts and primary people's courts with jurisdiction for confirmation of the validity of the mediation agreement, and the people's court shall review, confirm and issue a civil ruling according to law.
2.The judicial confirmation of non-litigation mediation agreements shall follow the principles of legality, willingness, efficiency, and convenience for the people.
3.In the mediation agreement, the parties may choose the intermediate or primary people's courts for jurisdiction in the place of domiciles of the parties, the place where the mediation agreement is performed, the place where the mediation agreement is signed, the location of the subject matter, the location of the non-litigation mediation organization and other places, which have actual connection with the dispute.
If the parties do not agree on a court of jurisdiction, the intermediate orprimary people's court in the place where the mediation organization is located shall have jurisdiction. Where two or more mediation organizations participate in mediation, the intermediate or primary people's courts in the place where each mediation organization is located shall have jurisdiction. The parties may jointly file an application to the intermediate or primary people's court in the place where one of the mediation organizations is located; if the parties jointly file an application to two or more intermediate or primary people's courts in the place where the mediation organizations are located, the case shall be under the jurisdiction of the people's court that first accepted the case.
If the parties agree or fail to agree on a court of jurisdiction,such parties shall not violate the provisions of the Civil Procedure Law on exclusive jurisdiction and hierarchical jurisdiction.
4.If applying for judicial confirmation, the parties shall submit an application to the people's court within thirty (30) days from the effective date of the mediation agreement and submit the following materials:
(1)The application for judicial confirmation;
(2)The original and photocopy of the mediation agreement reached by the non-litigation mediation organization through presiding over the mediation;
(3)The photocopy of the parties' personal identity certificate or the original, photocopy of the corporate business license and contact information;
(4)The original and photocopy of the materials proving the relevant facts of the case;
(5)The power of attorney entrusting others to apply for on behalf of it and other materials stipulated in Article 88 of theInterpretation of the Civil Procedure Law;
(6)Other materials required to be submitted by the people's court.
5.After receiving the parties' application for judicial confirmation, the people's court shall promptly review it. If, after review, it considers that the supporting materials provided by the parties are insufficient, incomplete, or doubtful, the court shall notify the parties in one time to supplement the supporting materials within seven working days.
If the materials are complete or supplemented, the people's court shall decide whether to accept the application within three working days from the date of receipt of the materials. If it decides not to accept the case, a ruling shall be made; if it decides to accept the case, the cause determined uniformly or the case shall be "Application for confirmation of the validity of the mediation agreement", the case number uniformly compiled shall be "Min Te", and it shall serve the parties with theNotice of Acceptance for the Judicial Confirmation of Non-litigation Mediation Agreementof the case in a timely manner, and require the parties to fill in the Confirmation for Address of Service.
6.Where the parties apply for judicial confirmation under any of the following circumstances, the people's court shall rule to not accept it:
(1)It does not fall within the scope of acceptance by the people's court;
(2)It is not under the jurisdiction of the people's court to which the application is made;
(3)Applying for confirmation of the invalidity, validity or termination of the marriage relationship, parent-child relationship, adoption relationship, and other identity relationships;
(4)Involving the application of other special procedures, the procedures for announcement to urge declaration of claim, and bankruptcy proceedings;
(5)The content of the mediation agreement involves the confirmation of property rights and intellectual property rights.
After the people's court accepts the application, if itfinds the above-mentioned circumstances of not accepting, it shall rule to reject the parties' application.
After a mediation agreement is reached through mediation by a mediation organization,the parties apply to the people's court for judicial confirmation thirty (30) days after the effective date of the mediation agreement, if there are legitimate reasons, the people's court may accept it.
If it is within the scope of acceptance by the people's court, the parties shall be notified to resolve the dispute in accordance with corresponding procedures; if it is not under the jurisdiction of this court, the parties shall be notified to apply to a people's court with jurisdiction.
7.Where the parties apply for judicial confirmation under any of the following circumstances, the people's court shall rule to reject the application:
(1)Violating the mandatory provisions of the law;
(2)Damaging to national interest, social public interest, and legitimate rights and interests of others;
(3)Violating public order and good customs;
(4)Violating the principle of willingness;
(5)The content is not clear;
(6)Other circumstances that judicial confirmation cannot be made.
8.After the people's court has received the litigation materials of the parties, for a case subject to designated mediation before acceptance of filing, if the parties reach a mediation agreement and apply to the people's court for judicial confirmation, based on the principle of ''Who designates, who accepts'', the judge from the filing department or the coordination center of litigation and mediation of the court made such designation shall conduct the review solely, and when necessary, a collegial panel may be formed to conduct the review.
For acase subject to designated mediation after acceptance of filing by the people's court, if the parties reach a mediation agreement and request the court to issue a civil mediation statement, it shall be reviewed by the judge of the case solely, and when necessary, a collegial panel may be formed to conduct the review.
For acase subject to designated mediation after acceptance of filing by the people's court, the mediation period may be deducted from the trial period.
9.When reviewing the judicial confirmation, the people's court shall ask the parties whether they understand the content of the agreement reached, whether they accept the legal consequences of the mediation agreement, and whether they are willing to let the people's court give the compulsory enforcement effect of the agreement through the judicial confirmation procedure. The inquiry may be made in writing.
10.When reviewing the judicial confirmation of non-litigation mediation agreement cases, the people's courts may adopt written review, on-site review, online video review, etc. Audio and video recordings shall be made in the entire process of online video review of judicial confirmation, and the audio and video materials shall be properly stored.
11.When reviewing relevant circumstances, the people's court shall, if deemed necessary, notify the parties to be present to verify and hear the case together, and may also obtain relevant materials from the mediation organization and verify relevant circumstances. Relevant transcripts of the hearing shall be made and submitted to the parties or attorneys for signature and confirmation.
If the content of the mediation agreement submitted by the parties is defective, the people's court shall make an explanation. If the parties agree to modify the defective content, the parties shall sign the modified mediation agreement or the revised mediation clause. After the original mediation organization or mediator stamps or signs it, the people's court shall conduct judicial confirmation review according to the modified or revised mediation agreement. If the mediation agreement submitted by the parties only has the problem of language irregularities, without changing the original intent and substantive content of the mediation agreement, the people's court shall, with the signatures of the parties for agreement, make appropriate amendments to the textual errors of the mediation agreement and conduct judicial confirmation review.
The review by the people's court shall adopt a combination of formal review and limited merits review. The formal review mainly reviews whether there is circumstance of not accepting as stipulated in Article 6 of these Rules, and the merits review shall focus on the willingness and legality of the mediation agreement.
12.In the process of judicial confirmation review, false mediation shall be effectively prevented, focusing on the following aspects:
(1)Mediation agreements in fields with high incidence of false litigation such as private lending, divorce and property partition, repayment of debts with material object, labor disputes, company splits (mergers), and corporate bankruptcy shall be strictly and comprehensively reviewed;
(2)Review shall focus on whether the content of the mediation agreement violates trading practice, whether it conforms to common sense, and whether it harms national interests, social public interests, or legitimate rights and interests of the outsider of the case;
(3)In strict accordance with laws and judicial interpretations, reviewing the authenticity of the basic legal relationship, and accurately determining the establishment, validity and responsibility of the disputed contract;
(4)For mediation agreements that may have false mediation risks, the parties may be required to submit additional relevant evidence or the judge may appropriately increase the intensity of ex officio in investigation and evidence collection;
(5)Using information technology to know the law and litigation situation of the parties through inquiries about the parties' related cases.
13.The people's court shall review the judicial confirmation cases in timely manner, and deal with them according to the following circumstances:
(1)In the case of the circumstances specified in Article 6 of these Rules, it shall be ruled to not accept the application;
(2)In the case of the circumstances specified in Article 7 of these Rules, it shall be ruled to reject the application;
(3)If the mediation agreement is found to meet the confirmation conditions after review, it shall be ruled to confirm that the mediation agreement is valid.
14.The people's court shall serve the civil ruling on all parties in timely manner, and the ruling shall become legally effective upon service on the parties. If the parties refuse to sign for receipt, the validity of the ruling shall not be affected.
15.If the parties withdraw the application before the ruling to confirm the mediation agreement is made, the people's court may rule to approve it.
If the parties fail to make supplementary statements or supplementary supporting materials within the time limit without justifiable reasons, or refuse to accept the inquiry, the people's court may deal with it as withdrawal of the application.
16.If the parties or interested parties believe that the relevant ruling of judicial confirmation made by the people's court is indeed wrong, they may raise objections to the people's court that made the rulings. After review, the people's court shall rule to revoke the original ruling if the objections are tenable or partially tenable; if the objections are untenable, it shall rule to reject it.
For the judicial confirmation ruling made by the people's court, if the parties have any objection, they shall submit it within fifteen (15) days from the date of receipt of the ruling; if any interested party has an objection, it shall be submit it within six months from the date when such party knows or should have known that its civil rights and interests are infringed
17.The people's court shall conclude the trial within thirty (30) days from the date of accepting the application for judicial confirmation. If in special circumstances, it needs to be extended, it shall be approved by the president of this court.
The ruling ofnot accepting shall be made within three business days.
18.After the people's court made a confirmation ruling in accordance with the law, if either party refuses to perform or fails to perform it in full, the other party may apply to the people's court that made the confirmation ruling for compulsory enforcement.
19.If the people's court refuses to accept or rejects the application, or the parties withdraw the application for judicial confirmation or it is handled as the application is withdrawn automatically, the parties may file a lawsuit over the original dispute. If it meets the acceptance conditions after review, the people's court shall accept the case according to law.
Where a partyfiles a lawsuit to the people's court to change or revoke the non-litigation mediation agreement, or confirm the invalidity of the mediation agreement, it shall be handled in accordance with theSeveral Provisions of the Supreme People's Court on the Trial of Civil Cases Involving People's Mediation Agreements.
20.No fees shall be charged for judicial confirmation cases.
21.The people's court shall appoint personnel to be responsible for the organization and administration of judicial confirmation, strengthen the communication and information exchange with non-litigation mediation organizations within its jurisdiction and regulate operations, and may periodically or irregularly notify the non-confirmation of mediation agreements to judicial administrative agencies at the same level and related mediation organizations.
22.These Rules shall take effect from the date of issuance, and the power of interpretation shall be vested in theJudicial Committee of Guangzhou Intermediate People's Court.