How to Initiate a Lawsuit?
----The first step to protect one¡¯s rights and interests via judicial proceedings
Before filing a lawsuit, the following matters shall be fully taken into consideration.
1. Plaintiff to the lawsuit
One shall, prior to initiating a lawsuit, firstly make sure whether or not they are a proper plaintiff. The plaintiff shall be a citizen, legal person or other organization that is directly related to the subject case and participate in the judicial proceedings in their own name.
2. Defendant to the lawsuit
An explicit defendant is required when filing a lawsuit to the court. Explicit defendant means that: 1) the accused shall actually exist, while a deceased citizen or legal person whose registration is cancelled shall not act as a party to an action; 2) the basic information of the defendant shall be clear, including the name, gender, age, ethnicity, place of employment and address of the citizen, and the name, domicile, name and title of the legal representative or person in charge of legal persons.
The plaintiff shall determine their claims, i.e. to request the court to order the defendant whether to continue to perform the contract, or to compensate for the loss, cease the infringement, abate the nuisance, eliminate the danger, return the property, restore things to their original state, repair, rework, replace, pay for the liquidated damages, eliminate the effects of the act, restore the reputation or apologize.
4. Legal facts
After determining the claims, the plaintiff shall think over whether or not there is evidence to support the claims and whether such claims are reasonable or not. What needs to be noted is that the facts based on which a judgment is rendered by the court must be proved by relevant evidence.
5. Competent court
Guangzhou Maritime Court has jurisdiction over maritime cases and admiralty administrative cases of first instance within the coastal sea area, seaward inland river area, ports and shore area in Guangdong province and part of Nanhai Sea waters. Where the dispute involves ships, shipping businesses, port operation, ocean exploitation, admiralty administration, admiralty administrative compensation or pollution from land-based sources, you may file a lawsuit to with Court. If you are not sure whether the subject case falls under the jurisdiction of this Court or not, you may call for consultation via 020-34063863.
Drafting of Statement of Claim
After thinking over the above-mentioned matters, the plaintiff may start to draft a statement of claim. In the course of drafting a statement of claim, the following factors shall be taken fully into consideration.
1. The basic information of the litigants shall be accurate and specific.
For a natural person, the basic information includes the name, gender, age, ethnicity, place of employment, address, and nationality shall be included for a foreign citizen. In respect of a legal person, the basic information includes the name, domicile, and the name and title of the legal representative or person in charge. The name of a natural person shall be consistent with that recorded on his/her identity card, and it shall be consistent with that recorded on the business license in case of a legal person. Correspondence address and contact information of the concerned party shall be provided as well.
The plaintiff shall explicitly express his/her claims which he/she requests the court to hear. In case of multiple claims, the plaintiff shall list them one by one in the statement of claim. For claims which are not stated in the statement of claim, it shall be deemed that the plaintiff gives up his/her rights for such claims and the court would not take the initiative in hearing such claims.
3. Facts and grounds
With regard to the facts, the cause, course and current situation of the disputed events shall be clearly stated. In respect of the grounds, the plaintiff shall state the rights and wrongs of the disputed case on the basis of the facts and therefore determine the responsibilities that shall be borne by the parties concerned. Legal provisions are also required for the illustration of the grounds.
4. The name of the court shall be stated clearly on the statement of claim. For example, in case the lawsuit is to be lodged with this Court, the words ¡°To the Guangzhou Maritime Court¡± shall be stated in such statement of claim.
5. The date shall be indicated at the end of the statement of claim. In case the concerned party is a natural person, his/her signature shall be affixed to the statement of claim, for legal persons or other organizations, the name of the legal representative and the official stamp shall be affixed.
6. The plaintiff should use succinct and accurate words when drafting a statement of claim and not apply injurious words to make personal comments on the opponent party.
Preparation of Materials for a Lawsuit
One complete set of materials for a lawsuit consist of one original statement of claim (to submit to the court), a number of copies of the statement of claim (which should be consistent with the number of defendants and such copies of statement of claim would be served by the court to the defendants), materials which could prove the identity of the parties concerned (including identity card, business license, identity certificate of a legal representative, power of attorney if a proxy is entrusted by the concerned party for the lawsuit and notarization and certification is required if such power of attorney is emailed or delivered from abroad) and the relevant evidence. You may make a copy of the List of Lawsuit materials and request the court to sign to acknowledge the receipt of such materials. The court shall give a reply within 7 days after receiving such materials.
When filing a lawsuit with the Guangzhou Maritime Court, you may, taking along with the materials for a lawsuit, go up to the headquarter of this Court or detached tribunals located in Shenzhen, Shantou, Zhanjiang, Jiangmen (which is planned to be moved to Zhuhai) to file the case or you may file the case by post. In addition, channels for filing a case by phone and via internet will be available soon. For details, please refer to the information on the official website of China Foreign-related Commercial and Maritime Trial (www.ccmt.org.cn).
Where the lawsuit filed meets the conditions for accepting and hearing a case, the court will notify you to pay the court fees. The court fees shall be paid to the account designated by the Ministry of Finance of the PRC. If you fail to pay the court fees within 7 days after receiving the court¡¯s notification, the court may deal with the case by deeming that you have automatically revoked the lawsuit.