China’s Policies and Regulations on Foreign-Related Traffic Accidents

According to the “Regulations on the Procedure for Handling Road Traffic Accidents,” traffic accidents involving foreign factors, such as involving foreigners as parties, constitute foreign-related traffic accidents. In any foreign-related traffic accident, any party involved who is a foreigner can be either the victim or the party at fault. A foreigner refers to a natural person who does not possess Chinese nationality but holds the nationality of another country, including stateless persons. Foreigners, commonly referred to as “foreigners,” are involved in traffic accidents in China, which are thus considered foreign-related road traffic accidents.

Implications

From the perspective of national sovereignty, any country enjoys territorial supremacy over any natural person and property within its territory, and foreigners as natural persons are no exception. From the moment any foreigner enters the territory of a country, they are subject to the territorial jurisdiction of that country and must comply with its relevant laws. Conversely, the host country is obligated to protect the safety of foreigners’ lives, property, and legitimate rights and interests within its borders, which are legally protected.

When a foreigner suffers personal injury, property damage in a traffic accident in China, or causes harm to others in a traffic accident, according to Article 68 of China’s “Regulations on the Procedure for Handling Road Traffic Accidents,” the handling of road traffic accidents involving foreigners within the People’s Republic of China shall also be governed by the relevant laws, regulations, and rules governing foreign-related cases.

Special Provisions

Given that foreigners may not be familiar with Chinese laws and regulations, it is explicitly stipulated that the traffic management departments of the public security organs should inform the parties involved of their rights and obligations under Chinese laws and regulations when handling foreign-related traffic accidents.

Article 69 further stipulates that in cases where a foreigner is involved in a road traffic accident in China, the public security organs may, according to law, prohibit them from leaving the country until the accident is resolved.

Foreigners residing in China have unstable and temporary residence statuses, and their property within China is generally limited. Failure to apply for property preservation in a timely manner may lead to difficulties in enforcing judgments later on. Therefore, Article 70 provides that the rights holders of damages can apply to the court for pre-litigation property preservation measures.

In addition, there are provisions for foreign parties in traffic accidents to hire translators, and many special provisions apply to foreigners who enjoy diplomatic privileges and immunities.

Applicable Laws

Chapter IX, Article 68 of China’s “Regulations on the Procedure for Handling Road Traffic Accidents” states: “Foreigners involved in road traffic accidents within the People’s Republic of China shall also be handled in accordance with the relevant laws, regulations, and rules governing foreign-related cases, in addition to these regulations.”

In terms of litigation procedures, if a lawsuit is filed in China, China’s “Civil Procedure Law” must be applied. However, some stages must apply the special provisions of Chapter IV of the “Civil Procedure Law” on special procedures for foreign-related civil litigation.

In terms of substantive law, according to Article 44 of the “Law of the People’s Republic of China on the Application of Law to Foreign-related Civil Relations”: “Liability for tort shall be governed by the law of the place where the tortious act occurred, but if the parties have a common habitual residence, the law of the common habitual residence shall apply. After the tortious act has occurred, if the parties agree to choose the applicable law, it shall be according to their agreement.”

Foreign-related traffic accidents are essentially tort cases. Generally, tort cases are governed by the law of the place where the tortious act occurred. Therefore, in the case of foreign-related traffic accidents in China, Chinese law applies. However, if the parties have a common habitual residence, the law of the common habitual residence should be applied. Habitual residence refers to the place where a person has continuously resided for more than one year after leaving their domicile, excluding hospital stays for medical treatment.

For example, if two British nationals are traveling in China and happen to have a traffic accident on their way to Yunnan, China, because these two British nationals have a common habitual residence—Britain, the resolution of the traffic accident between them would be governed by British law. Of course, if the parties agree on the law applicable to the resolution of the traffic accident after the traffic accident occurred, they must respect the parties’ own choices and apply the law chosen by the parties.

Handling Methods

When handling foreign-related traffic accidents, the traffic management departments of the public security organs should issue a traffic accident determination certificate based on the evidence collected and deliver it to the parties involved. If a party refuses to accept it, it can be transferred to their institution through diplomatic channels. Mediation can also be applied to foreign-related traffic accidents, and unilateral mediation can be used. During this period, the police can transfer the agreed compensation for traffic accidents.

If the parties involved in foreign-related traffic accidents are foreign nationals who enjoy diplomatic privileges and immunities, and the traffic police believe that they should temporarily suspend or revoke their motor vehicle driving licenses as a punishment after the investigation, they can detain their driving licenses. If the vehicle needs to be inspected and identified, it should be returned immediately after inspection and identification; if they do not agree to the inspection and identification, it should not be forcibly carried out, and the situation should be truthfully recorded. If an investigation is needed, they can be interviewed; however, if they do not accept the investigation, no coercive measures should be applied, and the situation should be truthfully recorded. The public security organs’ traffic management departments should issue a traffic accident determination certificate and deliver it to the parties based on the evidence collected. If the parties refuse to accept it, it should be delivered to their institution. If a foreigner who enjoys diplomatic privileges and immunities refuses to accept an investigation or inspection and identification, the matter of damage compensation should be resolved through diplomatic channels.

If a foreigner who enjoys diplomatic privileges and immunities is involved in a traffic accident resulting in death, the public security organs’ traffic management departments should record their identity, documents, the course of the accident, and the consequences of the damage, and promptly report the relevant circumstances to the provincial foreign affairs department and the embassy or consulate of the foreigner’s country.

In cases where foreign consular institutions, international organizations, and representatives of international organizations stationed in China enjoy privileges and immunities and are involved in road traffic accidents, the public security organs’ traffic management departments should handle them in accordance with Articles 73 and 74 of these regulations. However, this is subject to different provisions in the “Regulations on Consular Privileges and Immunities of the People’s Republic of China,” international conventions that China has acceded to, and agreements concluded between China and relevant countries or international organizations.

Additionally, according to Article 44 of the “Law of the People’s Republic of China on the Application of Law to Foreign-related Civil Relations”: “Liability for tort shall be governed by the law of the place where the tortious act occurred, but if the parties have a common habitual residence, the law of the common habitual residence shall apply. After the tortious act has occurred, if the parties agree to choose the applicable law, it shall be according to their agreement.”

Laws and Regulations

Chapter IX of China’s “Regulations on the Procedure for Handling Road Traffic Accidents” specifies the following provisions regarding the handling of foreign-related road traffic accidents:

Article 68: Foreigners involved in road traffic accidents within the People’s Republic of China shall be handled in accordance with the relevant laws, regulations, and rules governing foreign-related cases in addition to these regulations.

Public security organs’ traffic management departments handling road traffic accidents involving foreigners should inform the parties involved of their rights and obligations under Chinese laws and regulations when handling road traffic accidents.

Article 69: Foreigners involved in road traffic accidents in China may, according to law, be prohibited from leaving the country until the accident is resolved.

Article 70: In cases where a foreigner is involved in a road traffic accident in China and assumes all or major responsibilities, the public security organs’ traffic management departments should inform the rights holders of the traffic accident damages that they may request the court to take pre-litigation property preservation measures.

Article 71: During the process of handling road traffic accidents, public security organs’ traffic management departments should use the common language and characters of the People’s Republic of China. For those who do not understand the Chinese language and characters, translation should be provided; for those who understand the Chinese language and characters and do not need translation, a written statement should be provided.

Upon approval by the public security organs’ traffic management departments, foreign parties may hire translators at their own expense.