No more notarization and authentication of a power of attorney; online verification is what those living overseas and wishing to appoint a Chinese lawyer need.
Under the new policy, for those planning to appoint a Chinese lawyer while living abroad, the power of attorney is no longer required to be notarized or authenticated, but only needs to be signed in the online video, being verified by the judge.
Pursuant to Article 264 of the PRC Civil Procedure Law, where a foreign party entrusts a Chinese lawyer as an agent while living abroad, the power of attorney signed outside of China shall be notarized by a notary office in the country where the party is domiciled and authenticated by the embassy or consulate of the People's Republic of China in the said country before being submitted to the Chinese court.
Practically speaking, for Chinese court, even when a Chinese person entrusts a Chinese lawyer to act as his/her agent in a lawsuit outside of China, the power of attorney also needs to go through the same procedure.
On 3 Feb 2021, the Supreme People’s Court (SPC) promulgated the Several Provisions on Providing Online Case Filing Services for Parties in Cross-border Litigation (thereinafter “the Provisions”, 关于为跨境诉讼当事人提供网上立案服务的若干规定), Article 6 of which stipulates that where the party in cross-border litigation who has been verified his/her identity entrusts a mainland Chinese lawyer to act as his/her agent, he/she may apply to the court registering the case for online video verification.
See an earlier post, for a detailed discussion on how the Provisions has paved the way for foreign parties to register a case in a Chinese court.
Haidian Primary People’s Court of Beijing Municipality has recently published a post in its account on WeChat, a mobile social networking platform, discussing the first case concerned with the online video verification of power of attorney in China as the Provisions went into effect.
On the morning of 4 Feb. 2021, Ms. Jin, who was in New Zealand, entrusted a Chinese lawyer to represent her in a lawsuit at the Haidian District People’s Court in Beijing through video conferencing.
Ms. Jin, formerly living in Beijing, entered into a contract to purchase a property in 2019 and agreed to complete the registration formalities of the property ownership transfer by Feb. 2020.
Since then, she went to New Zealand to visit her relatives, but the COVID-19 outbreak in early 2020 made it impossible for her to return to China, nor for completing the above-mentioned registration formalities. As a result, the seller asked to rescind the property purchase contract, and brought a case before the court.
Ms. Jin was unable to return home, and she was afraid that she would not be able to have the power of attorney notarized and authenticated in New Zealand for fear of contracting COVID-19, which prevented the case from proceeding in a timely manner.
After the court had informed Ms. King of the incoming of the Provisions on Online Cross-border Litigation, Ms. Jin opted for online verification of the power of attorney.
On 4 Feb. 2021, as witnessed by the judge via video, Ms. Jin and her lawyer directly signed the documents relating to the entrustment, which made it unnecessary to go through the regular procedures, such as notarization, authentication, and mailing. Afterwards, the lawyer will represent Ms. Jin in the following litigation proceedings.
Amid the COVID-19 pandemic, Ms. Jin’s problem represents the typical difficulties faced by parties in cross-border litigation to some extent.
The Provisions removes the last hurdle for litigants living overseas to participate in Chinese court trials online. It is no longer necessary to handle the notarization, authentication, and mailing of the power of attorney. Instead, it is only required to verify the signing of the power of attorney online.
In this way, litigants living overseas can participate in Chinese court proceedings online from beginning to end, because many Chinese courts have been able to make the whole process of litigation online.
See an earlier CJO post, for a step-by-step guide to accessing China's virtual court proceedings through the app ‘China Mobile Micro Court’.