Recently, when handling cases, our team often encounters such a problem: Some foreign companies want to sue Chinese companies in Chinese courts. However, according to Chinese laws, when foreign enterprises litigate in China, they usually need to go through complex notarization, authentication, or notarization - transmission procedures. To avoid these troubles, some foreign companies may ask, "We have a representative office in a certain place in China, and this representative office also has a business registration certificate and a unified social credit code. Can we directly sue this Chinese company in the name of the representative office?" This question actually involves whether the representative office of a foreign enterprise has an independent litigation subject qualification.
A representative office of a foreign enterprise, generally marked with the words "representative office", refers to an office established by a foreign enterprise within the territory of China to engage in non - profit activities related to the business of the foreign enterprise. It does not have the status of an independent legal person and shall not engage in profit - making activities.
According to Article 2 of the "Regulations on the Registration and Administration of Permanent Representative Offices of Foreign Enterprises", a representative office of a foreign enterprise does not have the status of a legal person. And Article 51 of the "Civil Procedure Law of the People's Republic of China" stipulates that citizens, legal persons, and other organizations may be parties to civil litigation. Therefore, since a representative office clearly does not fall within the category of citizens or legal persons, to determine whether a representative office is a proper litigation subject, it is necessary to clarify whether the representative office of a foreign enterprise meets the definition criteria of "other organizations" under China's Civil Procedure Law.
According to Article 51 of the "Civil Procedure Law of the People's Republic of China" and Article 52 of its judicial interpretation, "other organizations" refer to social entities that, although they have not obtained the status of a legal person, have been legally established, have a business license, and have a certain organizational structure and property base.
In Chinese judicial practice, there are already many judgment documents of Chinese courts involving listing the representative office of a foreign company as a party to a case. In such cases, whether the representative office has the qualification of an "other organization" as stipulated in the "Civil Procedure Law of China" often becomes the main point of dispute between the two parties, and it is also the core issue in the trial by Chinese courts.
Judging from most cases, if a representative office of a foreign enterprise meets the following core conditions: being legally established, having a certain organizational structure and property, and holding a Chinese business license, it should be determined that it meets the definition of an "other organization" in the "Civil Procedure Law of the People's Republic of China", and thus be granted the subject qualification to participate in civil litigation.
In conclusion, before clearly confirming whether a representative office of a foreign enterprise has independent property, a legal business license, and other core conditions, it is not recommended to list a Chinese company as the defendant in a lawsuit.
Because if the representative office does not meet these conditions, the Chinese court may not accept the case or reject the lawsuit on the grounds that it does not have the litigation subject qualification.
At the same time, if, in order to avoid notarization and authentication procedures, a lawsuit is filed when the representative office of a foreign enterprise does not meet the conditions of being legally established, having independent property, and having a business license, the Chinese court may also refuse to accept the case on the grounds that the representative office does not have the litigation subject qualification.
Therefore, when a representative office of a foreign company sues a Chinese company, it is necessary to fully verify whether the representative office of the foreign company meets the relevant requirements in the Civil Procedure Law of China before filing the lawsuit, so as to avoid the failure of the lawsuit due to improper procedures.
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