How Can I Sue an Foreign Company in China?
Our client is recently in a lawsuit against a Chinese company. One of the defendants is a Hong Kong company, cause it is the payee as well as a related entity of the counterparty. There are many special procedures and materials needed for prosecuting foreign subjects in China, which will be summarized in this article.
1. How to prove the identity of the defendant?
Under China Civil Procedure Law, the identity evidences of the defendant should be clear to separate the subject from others. In detail, when a company is a defendant, the plaintiff is required to provide a clear name, company address and subject proof information when suing. The specific requirements for address identity information are: 1) the address information should be clear enough to serve the legal instruments and 2) the identity information should be able to prove the existence of the foreign/offshore company. The company's registration information can be used as proof of the subject, or if it is not available, other documents or legal instruments from commercial activities can be used to prove the existence of the company.
If all the above-mentioned materials cannot be provided, the court will judge according to the following principles:
Identity documents is necessary if the court choose the way of public notice of service.
If the identity documents are not submitted:
and the address can be served, the case can still be filed and the court can try the case in absentia if the defendant fails to answer or plead, or
the address cannot be served, there is a risk that the court will dismiss the case.
If there are only the identity documents but no exact address, the court will ask the plaintiff to supplement the materials, and if the address is still not clear, the court will take the way of public notice of service. And if the defendant does not answer or reply, the court may try in absentia.
2. What materials need notarization and authentication?
If the evidences submitted were created out of mainland China, the notarization and authentication would be required. According to Some Provisions on Evidence in Civil Procedures issued by the Supreme Court, we summarized the types of materials which need the procedure in the form below (√：necessary ×: unnecessary). Combined with the section 1, the identity documents such as register information of the company and contracts are required both procedures.
When suing an foreign/offshore company in mainland China, in order to clarify the identity of the defendant, it is necessary to submit the name, the address where it can be served and the identity documents, and, as required by procedure law, to have the above documents notarized and authenticated.
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Larry Zhou, Partner
Landing Law Offices China
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Email: shichao.zhou@landinglawyer.com
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