Zhuhai lawyer, Zhuhai legal consulting, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm].
The following article ** Yu Court Fa Xiu, written by Zhao Fei.
Background
As Shenzhen and Hong Kong are moving towards all-round and in-depth cooperation, more and more Hong Kong-related cases come for consultation and entrustment, and our team often encounters various questions from peers. The author takes his own experience as an example to share the common problems of entrustment, defendant and jurisdiction in Hong Kong-related cases.
1. Are there any special requirements for Hong Kong residents to appoint a lawyer?
Hong Kong residents may appoint a lawyer** for legal business in Chinese mainland, but according to Article 239 of the Judicial Interpretation of the Civil Procedure Law, "if a foreign party needs to entrust a lawyer** to litigate, it must entrust a Chinese lawyer." "The relevant provisions on foreign-related cases apply to Hong Kong-related cases, so Hong Kong residents who want to entrust a lawyer to participate in litigation in Chinese mainland can only entrust our mainland lawyers. A Hong Kong party entrusting a mainland lawyer to participate in the litigation needs to sign a power of attorney, which can be handled in three ways:
1.Go to a notary office in Chinese mainland to notarize the power of attorney
In the process of some other foreign-related cases, authorization can also be handled by handling overseas remote notarization.
2.Hong Kong residents can also sign a Power of Attorney in Hong Kong
However, the power of attorney must be signed in front of a Hong Kong lawyer with China-appointed attesting officer qualification appointed by the Ministry of Justice of the People's Republic of China, and the witnessed power of attorney can only be used in litigation in Chinese mainland after it is sent to China Legal Service (Hong Kong)** with a seal and a transmission seal.
Some users will require the staff to be forwarded by China Legal Services (Hong Kong)**.
The office will check whether there is a forwarding seal, whether the signing lawyer is in the annual registration list of China-Appointed Attesting Officers (Hong Kong) issued by the Ministry of Justice of the People's Republic of China every year, and the place of use.
3.Sign the power of attorney in the presence of the staff of the office
In Hong Kong-related civil and commercial litigation, in order to ensure the authenticity of the power of attorney, if a foreign party wants to entrust a litigant, it needs to sign a power of attorney under the witness of the staff of the office before the power of attorney can take effect. Some authorities can remotely confirm the identity of the parties and the authorization behavior to achieve "authorization and face-to-face signing". For example, the Qianhai Court in Shenzhen can be connected through **. However, in the process of handling cases by our team, the interview requires the communication between the office and the parties, which is inefficient and takes up a lot of time and energy of the three parties, so we generally do not choose this method.
The second defendant provided subject information to Hong Kong residents
According to Article 108 of the Civil Procedure Law of the People's Republic of China and Article 8 of the Interim Provisions of the Supreme People's Court on the Case Filing Work of the People's Courts, only "a clear defendant" is required to file a lawsuit. If the defendant is a natural person, provide a copy of his ID card (or household registration book) or go to the public security organ to inquire about the permanent resident information registration card or residence registration information. In practice, the practice of requiring the plaintiff to provide proof of the identity of the foreign defendant to prove the true existence of the subject undoubtedly adds a certain degree of difficulty to the parties' litigation. If it involves Hong Kong resident status or former residents of Chinese mainland who moved to Hong Kong and have not applied for any residence registration information and residence documents in China, the main supporting documents are relatively complicated.
Here, we would like to first introduce to you some identification documents that are often involved in Hong Kong residents in Hong Kong-related cases.
1.Hong Kong Permanent Identity Card and Hong Kong Identity Card
The Hong Kong Permanent Identity Card is an identity card issued by the Hong Kong Immigration Department to persons with the right of abode in Hong Kong, and is the primary identity document for Hong Kong residents. Hong Kong permanent residents can apply for a HKSAR passport. At present, the Hong Kong SAR passport is visa-free and visa-on-arrival is available to nearly 200 countries and regions.
2.Hong Kong Identity Card
The Hong Kong Identity Card is an identity card issued by the Immigration Department to persons who do not have the right of abode in Hong Kong. Through some talent introduction programs in Hong Kong, after approval, the applicant can apply for a Hong Kong identity card, and can work in Hong Kong, enjoy local public compulsory education services and other benefits. Generally, the immigration status we handle refers to the first application for a Hong Kong identity card, and after 7 years, you can apply to become a Hong Kong permanent resident and receive a Hong Kong permanent identity card.
3.Hong Kong Special Administrative Region Passport
The Hong Kong Special Administrative Region Passport, the full name of the Hong Kong Special Administrative Region Passport of the People's Republic of China, is a type of passport of the People's Republic of China, which is a passport issued by the People's Republic of China ** to permanent residents of the Hong Kong Special Administrative Region of Chinese nationality authorized by the **people of the People's Republic of China** in accordance with Article 154 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, and issued by the Hong Kong Immigration Department. The Diplomatic Offices of the People's Republic of China apply for Hong Kong Special Administrative Region passports on behalf of citizens living abroad. Passports are generally valid for 10 years, while those for children under the age of 16 are valid for 5 years. HKSAR passport holders can enjoy visa-free or visa-on-arrival entry arrangements for Hong Kong passport holders from 167 countries.
It should be emphasized hereHKSAR passports are only issued to holders of Hong Kong permanent residents, while holders of Hong Kong identity cards are not eligible to apply for HKSAR passports.
4.Mainland Travel Permit for Hong Kong and Macao Residents
Mainland Travel Permit for Hong Kong and Macao Residents is generally referred to as "Home Return Permit" by Hong Kong people. It is a document used by Hong Kong residents of the People's Republic of China to enter and leave Chinese mainland. The document is issued by the Exit and Entry Administration Bureau of the Ministry of Public Security, and the validity of the document generally applies only to Chinese mainland.
5.One-way pass
One-way permit, the full name of the People's Republic of China Permit to Hong Kong and Macao,It is a document issued by the relevant authorities of Chinese mainland to Chinese mainland residents with Hong Kong relatives to travel to Hong Kong. Generally speaking, the spouses, children, or other Mainlanders who have to travel to Hong Kong to seek refuge in Hong Kong can apply for a one-way permit to settle in Hong Kong.
Strictly speaking this documentIt is not an identity document in Hong KongIt is a transitional identity document issued by the Chinese mainland public security authorities in the process of immigration to Hong Kong by mainland residents, and its main function is to apply for a valid Hong Kong identity document after leaving the mainland for Hong Kong.
6.Residence permit for Hong Kong, Macao and Taiwan residents
The Residence Permit for Hong Kong, Macao and Taiwan Residents is a certificate issued by the domestic public security organs to Hong Kong and Macao residents residing in the Mainland, enjoying basic public services and facilities as permanent residents, and applying for permanent residence registration. On 1 September 2018, the Measures for the Application and Issuance of Residence Permits for Hong Kong, Macao and Taiwan Residents came into effect. As long as Hong Kong, Macao and Taiwan residents have lived in the mainland for more than half a year and meet one of the conditions for legal and stable employment, legal and stable residence, and continuous study, they may apply for a residence permit in accordance with the provisions of these Measures according to their own wishes. Residence permits for Hong Kong, Macao and Taiwan residents are made and issued in accordance with the relevant provisions of the Interim Regulations on Residence Permits for Hong Kong, Macao and Taiwan residents who meet the application conditions to participate in social insurance, labor and employment, go to school, seek medical treatment, etc., provide basic public services and convenience, facilitate Hong Kong, Macao and Taiwan residents to work, study and live in the Mainland, protect the legitimate rights and interests of Hong Kong, Macao and Taiwan residents, and prove their identity by engaging in relevant activities.
With regard to habitual residence, Article 21 of the Civil Procedure Law provides that "civil litigation against citizens shall be under the jurisdiction of the people's court at the place where the defendant is domiciled; Where the defendant's domicile is inconsistent with the defendant's habitual residence, the people's court at the place of habitual residence shall have jurisdiction", Article 3 of the Judicial Interpretation of the Civil Procedure Law provides that "a citizen's domicile refers to the place where the citizen's household registration is located" and Article 4 "A citizen's habitual residence refers to the place where the citizen has resided continuously for more than one year from the time he leaves his or her place of residence to the time of filing a lawsuit, except for the place where the citizen is hospitalized for medical treatment".
Therefore, in addition to the other party's Hong Kong, Macao and Taiwan ID cards and copies of overseas passports, if Hong Kong and Macao people have applied for residence registration or residence permits locally, we have also tried to use the residence certificate of Hong Kong and Macao people issued by the community residents' committee, the population information collection form issued by the community grid office or the residence information inquiry form as supplementary information to be submitted to the court for filing.
3. Whether there are any special requirements for jurisdiction in cases where one party is a Hong Kong resident
The Provisions of the Supreme People's Court on Several Issues Concerning the Jurisdiction of Foreign-related Civil and Commercial Cases (Fa Shi 2022 No. 18) stipulate that the Intermediate People's Court has jurisdiction over three types of foreign-related civil and commercial cases that have a large amount of dispute (the amount of the subject matter of the litigation is more than RMB 2000,400,000), the case is complex, or the number of parties is large, and other foreign-related civil and commercial cases that have a significant impact in the jurisdiction. The High People's Court has jurisdiction over first-instance foreign-related civil and commercial cases with a subject matter of litigation of more than RMB 5 billion (inclusive) or other foreign-related civil and commercial cases that have a significant impact in the jurisdiction. At the same time, it provides that if the High People's Court finds it truly necessary on the basis of the actual situation in its jurisdiction, it may, upon approval by the Supreme People's Court, designate one or more basic people's courts and intermediate people's courts to respectively carry out cross-regional centralized jurisdiction over first-instance foreign-related civil and commercial cases as provided for in Articles 1 and 2 of these Provisions. The reply of the High People's Court of Guangdong Province on designating the jurisdiction of Guangzhou, Shenzhen and Zhuhai Municipal Jurisdictions to have centralized jurisdiction over first-instance civil and commercial cases involving foreigners, Hong Kong, Macao and Taiwan, stipulates that the People's Court of Yuexiu District of Guangzhou Municipality, the People's Court of Nansha District of Guangzhou Municipality (the People's Court of Nansha Area of Guangdong Free Zone), the People's Court of Qianhai Cooperation Zone of Shenzhen, and the People's Court of Guangdong-Macao In-Depth Cooperation Zone in Hengqin have centralized jurisdiction over the corresponding first-instance civil and commercial cases involving foreigners, Hong Kong, Macao and Taiwan in their respective jurisdictions.
To sum up, this is our summary of the entrustment, defendant subject and jurisdiction of Hong Kong-related cases in the past. If necessary, please feel free to contact us and let us provide you with the most professional advice and solutions.
Lawyer introduction
Lawyer Zhao Fei. Lawyer of Beijing Jingshi (Shenzhen) Law Firm.
Member of the labor union of Beijing Jingshi (Shenzhen) Law Firm.
Areas of Practice
Hong Kong-related cases and unfreezing of bank account funds.