Copyright 2016 by Stanford University

HAN Fengbin

v.

Inner Mongolia Jiujun Pharmaceutical Co., Ltd. et al.,

A Case of Objections to Jurisdiction in a Product Liability Dispute

Guiding Case No. 56

(Discussed and Passed by the Adjudication Committee of the Supreme People’s Court

Released on November 19, 2015)

CHINA GUIDING CASES PROJECT

English Guiding Case (EGC56)

October 28, 2016 Edition∗

∗

The citation of this translation of the Guiding Case is:《韩凤彬诉内蒙古九郡药业有限责任公司等产品

责任纠纷管辖权异议案》 (HAN Fengbin v. Inner Mongolia Jiujun Pharmaceutical Co., Ltd. et al., A Case of

Objections to Jurisdiction in a Product Liability Dispute), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT,

English Guiding Case (EGC56), Oct. 28, 2016 Edition, http://cgc.law.stanford.edu/guiding-cases/guiding-case-56.

The original, Chinese version of this case is available at 《 中 国 法 院 网 》 (WWW.CHINACOURT.ORG),

http://www.chinacourt.org/article/detail/2015/11/id/1756745.shtml. See also 《最高人民法院关于发布第 11 批指

导性案例的通知》 (The Supreme People’s Court’s Notice Concerning the Release of the 11th

Batch of Guiding

Cases), Nov. 19, 2015, http://www.chinacourt.org/article/detail/2015/11/id/1756734.shtml.

This document was primarily prepared by Sean Webb and Dr. Mei Gechlik; it was finalized by Dimitri

Phillips and Dr. Mei Gechlik. We thank Oma Lee, Siqing Li, and Thomas Rimmer for their research assistance.

Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the

headings, was done to make the piece more comprehensible to readers; all footnotes, unless otherwise noted, have

been added by the China Guiding Cases Project. The following text is otherwise a direct translation of the original

text released by the Supreme People’s Court.

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2

Keywords

Civil Litigation Objection to Jurisdiction Retrial Period

Main Points of the Adjudication

Where a party did not raise an objection to jurisdiction during the first-instance reply

submission period [of a case], [but] raises an objection to jurisdiction either during the second-

instance adjudication [of the case] or during a retrial [when the case is] remanded for retrial,1

[the objection] shall not be reviewed by a people’s court.

Related Legal Rule(s)

Article 127 of the Civil Procedure Law of the People’s Republic of China2

Basic Facts of the Case

In a dispute over compensation for damage to product quality brought by plaintiff HAN

Fengbin against defendants Inner Mongolia Jiujun Pharmaceutical Co., Ltd.3

(hereinafter

referred to as “Jiujun Pharmaceutical”), Shanghai Yunzhou Commercial Building Co., Ltd.4

(hereinafter referred to as “Yunzhou Commercial Building”), Radio and Television Shanghai5

(hereinafter referred to as “Shanghai Television”), and Dalian Hongyan Pharmacy Co., Ltd.6

(hereinafter referred to as “Hongyan Pharmacy”), the Intermediate People’s Court of Dalian

Municipality, Liaoning Province, rendered the (2007) Da Min Quan Chu Zi No. 4 Civil

Judgment on September 3, 2008. Unconvinced, Jiujun Pharmaceutical, Yunzhou Commercial

1 The original text reads “再审发回重审” (“retrial remanded for retrial”). For the latest rules on retrials of

cases remanded for retrials, see 《最高人民法院关于民事审判监督程序严格依法适用指令再审和发回重审若干

问题的规定》(Provisions of the Supreme People’s Court on Several Issues Concerning Strictly and Legally

Applying [Rules on] Ordering Retrial of a Case and Remanding a Case for Retrial in the Civil Adjudication

Supervision Procedures), Articles 8−9, passed by the Adjudication Committee of the Supreme People’s Court on

Feb. 2, 2015, issued on Feb. 16, 2015, effective as of Mar. 15, 2015,

http://www.chinacourt.org/law/detail/2015/02/id/148101.shtml. 2 《中华人民共和国民事诉讼法》 (Civil Procedure Law of the People’s Republic of China), passed,

issued on, and effective as of Apr. 9, 1991, amended two times, most recently on Aug. 31, 2012, effective as of

Jan. 1, 2013, http://www.gov.cn/flfg/2012-09/01/content_2214662.htm. 3 The name “内蒙古九郡药业有限责任公司” is translated here literally as “Inner Mongolia Jiujun

Pharmaceutical Co., Ltd.” 4 The name “上海云洲商厦有限公司” is translated here literally as “Shanghai Yunzhou Commercial

Building Co., Ltd.” 5 The name “上海广播电视台” is translated here as “Radio and Television Shanghai” in accordance with the

translation used on the company’s website, at http://www.smg.cn/english_index.shtml. 6 The name “大连鸿雁大药房有限公司” is translated here literally as “Dalian Hongyan Pharmacy Co., Ltd.”

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3

Building, and Shanghai Television appealed to the Higher People’s Court of Liaoning Province.

The court rendered the (2008) Liao Min Yi Zhong Zi No. 400 Civil Judgment on May 24, 2010.

After the judgment’s coming into legal effect,7 retrial applicants Jiujun Pharmaceutical and

Yunzhou Commercial Building applied to the Supreme People’s Court for a retrial.8

On December 22 of the same year, the Supreme People’s Court rendered the (2010) Min

Shen Zi No. 1019 Civil Ruling, bringing [the case] up [to the Supreme People’s Court] for

adjudication.9 On August 3, 2011, [the Supreme People’s Court] rendered the (2011) Min Ti Zi

No. 117 Civil Ruling:

1. [The court] revokes the first-instance and second-instance civil judgments.

2. [The court] remands [the case] to the Intermediate People’s Court of Dalian

Municipality, Liaoning Province, for a retrial.

During the retrial, Jiujun Pharmaceutical and Yunzhou Commercial Building raised their

objections to the jurisdiction [of the court].

Results of the Adjudication

On February 29, 2012, the Intermediate People’s Court of Dalian Municipality, Liaoning

Province, rendered the (2011) Da Shen Min Zai Chu Zi No. 7 Civil Ruling. Considering that its

retrial of the case was [based on] the acceptance of an order from the Supreme People’s Court

and that the domicile of Hongyan Pharmacy, one of the defendants, was in Zhongshan District,

Dalian Municipality, Liaoning Province, [the Intermediate People’s Court of Dalian Municipality]

ruled to reject the objections to jurisdiction raised by Jiujun Pharmaceutical and Yunzhou

Commercial Building. Jiujun Pharmaceutical and Yunzhou Commercial Building appealed.

7 The original text reads “判决发生法律效力” (“the judgment’s coming into legal effect”). According to

Article 155 of the Civil Procedure Law of the People’s Republic of China, judgments and rulings that have come

into effect are judgments and rulings of the Supreme People’s Court as well as judgments and rulings which,

according to law, may not be appealed or which have not been appealed within the prescribed time limit. See Civil

Procedure Law of the People’s Republic of China, supra note 2, Article 155. 8 Civil Procedure Law of the People’s Republic of China, supra note 2, Article 199, Paragraph 1 (providing,

inter alia, that a party which considers an effective judgment or ruling to be erroneous may apply to the court at the

next higher level for a retrial). 9 The expression in the original text “提审” (“bring [a case] up [to an upper-level court] for adjudication”)

refers to Article 13, Paragraph 2 of the Organic Law of the People’s Courts of the People’s Republic of China: if the

Supreme People’s Court finds an error in a judgment or ruling rendered by a lower-level court and the judgment or

ruling has already come into effect, the Supreme People’s Court has the authority to adjudicate the case itself or to

direct the lower-level court to conduct a retrial. See 《中华人民共和国人民法院组织法》 (Organic Law of the

People’s Courts of the People’s Republic of China), passed on July 1, 1979, issued on July 5, 1979, effective as of

Jan. 1, 1980, amended three times, most recently on Oct. 31, 2006, effective as of July 1, 2007,

http://www.npc.gov.cn/wxzl/gongbao/2006-12/05/content_5354938.htm.

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On May 7, 2012, the Higher People’s Court of Liaoning Province rendered the (2012)

Liao Li Yi Min Zai Zhong Zi No. 1 Civil Ruling. [The court pointed out] that when plaintiff

HAN Fengbin brought suit in the Intermediate People’s Court of Dalian Municipality, Hongyan

Pharmacy, whose domicile was in Dalian Municipality, was listed as one of the defendants. In

addition, during the original adjudication, [the plaintiff] submitted evidence related to the

purchase of drugs from Hongyan Pharmacy and [this evidence] was cross-examined during the

court trial. [Thus, the court] opined that Hongyan Pharmacy was a qualified defendant and that

the Intermediate People’s Court of Dalian Municipality had jurisdiction over the case. Therefore,

[the court] ruled to reject the appeal and uphold the original ruling. Jiujun Pharmaceutical and

Yunzhou Commercial Building applied separately to the Supreme People’s Court for a retrial.

On March 27, 2013, the Supreme People’s Court rendered the (2013) Min Zai Shen Zi No. 27

Civil Ruling, rejecting the applications of Jiujun Pharmaceutical and Yunzhou Commercial

Building for a retrial.

Reasons for the Adjudication

In the effective ruling, the court opined:10

With respect to the period during which a party

[may] raise an objection to the jurisdiction [of a court], Article 127 of the Civil Procedure Law of

the People’s Republic of China (hereinafter referred to as the “Civil Procedure Law”) clearly

provides:

[…] where a party has an objection to jurisdiction, [the party] should raise it

during the reply submission period […].

[…] where a party does not raise an objection to jurisdiction and responds to a

lawsuit [by] replying, the people’s court accepting the lawsuit is considered to

have jurisdiction […].

It is clear from [the above] that where a party did not raise an objection to jurisdiction during the

first-instance reply submission period, [but] raises an objection to jurisdiction either during the

second-instance adjudication or retrial of the case, the people’s court shall not review [the

objection because], according to the principle of constant jurisdiction,11

the jurisdiction of the

case has already been confirmed.

Here, it was after the case was ordered, through the adjudication supervision procedures,

to be remanded to the first-instance court for retrial and during the retrial that Jiujun

Pharmaceutical and Yunzhou Commercial Building raised their objections to jurisdiction.

10

The original text does not specify which court opined. Given the context, this should be the Supreme

People’s Court. 11

The original text reads “管辖恒定原则” (“the principle of constant jurisdiction”). For more discussion of

this principle, see, e.g., 占善刚 (ZHANG Shangang), 略论民事诉讼中的管辖恒定原则 (Brief Discussion of the

Principle of Constant Jurisdiction in Civil Litigation), 《法学评论》(LAW REVIEW), Issue No. 6 (2001), at 126.

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During the first-instance [adjudication], after plaintiff HAN Fengbin’s complaint was delivered

to Jiujun Pharmaceutical and Yunzhou Commercial Building, neither Jiujun Pharmaceutical nor

Yunzhou Commercial Building raised an objection to jurisdiction during the reply period. This

illustrated that they had accepted the jurisdiction of the first-instance court and [thus] the

jurisdiction had been confirmed. Moreover, the case had gone through the first-instance and

second-instance [adjudication] as well as retrial. The proceedings that [the case] had gone

through still had procedural effects and [they] could not be reversed.

This case was a case remanded to the first-instance court for retrial through adjudication

supervision procedures. Although [the retrial] was handled in accordance with first-instance

adjudication procedures, the case remanded for retrial was not a case for initial adjudication and

jurisdiction over the case had already been confirmed. On [the issue of] the jurisdiction [of a

court], because civil litigation procedures begin with the suit brought by a party, jurisdiction over

a case should be determined [in accordance with circumstances] when the suit is brought. For a

court that has jurisdiction over a case when the suit is brought, jurisdiction is not affected by

changes to the facts upon which the jurisdiction is based that occur during the litigation

proceedings. When a case is brought to a people’s court and [then] accepted and registered by

the people’s court, and [when] the [plaintiff’s] complaint is delivered to the defendant and the

defendant does not raise an objection to jurisdiction during the reply period, [these circumstances]

show that a court with jurisdiction over the case has already been confirmed. Thereafter, the

court with jurisdiction over the case will not be changed by alterations to the parties’ domiciles

or habitual residences or alterations to the administrative regions.

Once the jurisdiction [of the court] has been confirmed, the parties [to the case] do not

have a right to further raise objections to [the court’s] jurisdiction. If a party could still raise an

objection to jurisdiction during a retrial, this would undoubtedly cause settled litigation

proceedings to be in an uncertain state, undermine the stability and order of the litigation

proceedings, and delay litigation. This would not only reduce the efficiency of litigation and

waste judicial resources, but would also not be conducive to the resolution of disputes.

Consequently, on the basis of the principle of constant jurisdiction, the certainty of litigation

proceedings, and the demands for fairness and efficiency, an objection to jurisdiction raised by a

party to a retried case cannot be supported. Based on this, the objections to the jurisdiction over

this case raised by Jiujun Pharmaceutical and Yunzhou Commercial Building lacked a legal basis.

It was not improper for [the court of] the original instance to reject their objections to jurisdiction.

In conclusion, the applications for retrial [made to the Supreme People’s Court by] Jiujun

Pharmaceutical and Yunzhou Commercial Building did not conform to the circumstances [under

which] a case should be retried as provided by Article 200, Item (6) of the Civil Procedure

Law.12

Therefore, in accordance with Article 204, Paragraph 1 of the law, [the court] ruled to

12

Civil Procedure Law of the People’s Republic of China, supra note 2, Article 200, Item (6) (providing

“there is any erroneous application of law in the original judgment or ruling” as a circumstance under which a court

should accept an application for retrial).

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reject the applications for retrial [made to the Supreme People’s Court by] the Jiujun

Pharmaceutical and Yunzhou Commercial Building. 13

(Adjudication personnel of the effective ruling: ZHANG Zhihong, NING Cheng, and JIA

Yaqi)

13

Civil Procedure Law of the People’s Republic of China, supra note 2, Article 204, Pargraph 1 (providing,

inter alia, that “a people’s court should, within three months of receiving a written application for retrial, examine

the application. If the application conforms to the provisions of [this law], [the court should] rule to retry the case.

If the application does not conform to the provisions of [this law], [the court should] rule to reject the application.”).