The Courts of China and the Courts of Foreign
Countries Request Each Other to Serve Civil and Commercial
Judicial Documents and to Take Evidence through Diplomatic
Channel
It is stipulated in
Paragraph 1, article 263 of the Civil Procedural Law of the
People's Republic of China that: "The requesting for
and providing of judicial assistance shall be conducted
through channels provided in the international treaties
which the People's Republic of China has concluded or
acceded to. In the absence of such a treaty, it shall be
conducted through diplomatic channel."
1. Diplomatic
Channel
When the counts of two
countries with diplomatic relations request each other
through diplomatic channel to serve civil and commercial
judicial documents on citizens of the other country or
litigants of the third country or stateless litigants (both
individuals and bodies corporate) in the other country or to
take evidence from those people, they usually proceed as
follows: the foreign ministry of one country instructs its
embassy in the other country to transmit the documents
concerned to the foreign minstry of the other country, which
then forwards them to its domestic court concerned for
service. The transmission of judicial documents and the
taking of evidence through diplomatic channel shall proceed
in accordance with the following procedures and requirements
on the basis of the principle of
reciprocity.
1. A Chinese court requests
a foreign court.
(1) If a Chinese court
requests a foreign court to serve civil or commercial
judicial documents or take evidence, the competent Chinese
provincial-level court shall forward the letter of request
and judicial documents to the Chinese embassy concerned via
the Department of Consular affairs of the Ministry of
Foreign Affairs of China. The embassy shall transmit the
letter of request and the documents to the foreign court
concerned via the foreign ministry of the receiving state.
The foreign court concerned then serves them on the
litigants, a receipt of service shall be returned through
the same channel.
(2) The letter of
request shall specify the foreign court to execute the
service and the full name, sex, nationality, age, detailed
address of the addressee in a certain foreign language. It
shall also clarify the cause of the lawsuit and the title
and number of the documents to be
served.
(3) In addition to the
above-mentioned elements, a letter of request for the taking
of evidence shall also include an investigation outline and
specify the questions to be put to the
witnesses.
(4) In accordance with
international practices, the letters of request and judicial
documents shall have a translation in the language of the
foreign country concerned or in a third language whose use
is agreed upon by that country.
2. A
foreign court requests a Chinese court
(1) The judicial documents and letters
of request from courts of foreign countries shall be
transmitted to the Department of Consular Affairs of the
Ministry of Foreign Affairs of the People' Republic of China
through their respective embassies in China. The Department
of Consular Affairs shall forward the documents and letters
of request to a local or special people's court of
jurisdiction designated by the relevant provincial-level
higher People's Court for the execution of the service. The
addressee shall sign on the receipt of service attached (if
there is no such a receipt attached, the court concerned
shall provide a certificate of service). If the court
concerned refuses or fails to serve the documents, it shall
account for its refusal or failure. The receipt of service
shall be returned through the same
channel.
(2) The letter of request shall
meet the following requirements:
a. It
shall identify the name and address of the requesting
foreign court;
b. It shall identify the
name and address of the Chinese court requested to execute
the service. If the foreign court is not sure about the name
of the Chinese court to be requested, the court at the area
of the abode or the frequent residence of the person to be
served may be requested;
c. The name,
sex, nationality, age, address of the person to be served
and his status in the lawsuit have to be
specified;
d. The title and number of
the judicial documents to be served shall be
specified;
e. In the case of serving a
summons on a Chinese citizen or legal person through the
diplomatic channel, it shall be transmitted to the Ministry
of Foreign Affairs of China no less than two months before
the date set by the summons for the person concerned to
appear in court.
f. The requesting
foreign court shall affix its seal to the letter of request
and judicial documents and enclose the Chinese translation
herewith (The judicial documents served to the Hong Kong
Special Administrative Region of the People's Republic of
China shall have a Chinese or English translation
attached.)
In addition to the
above-mentioned requirements, the letter of request for
assistance in taking evidence sent to a Chinese court by a
foreign court through the diplomatic channel shall also set
forth the commitment to reciprocal assistance to relevant
Chinese courts and provide a brief introduction to the
lawsuit and an inquiry outline for taking
evidence.
If the judicial documents a
foreign court requests to be served contain anything that is
incompatible with Chinese laws or the person to be served
enjoys diplomatic privileges and immunities, the documents
shall not be served.
2.
Consular channel
The Chinese
court and the court of a foreign country with diplomatic
relations with China may designate their respective
embassies or consular posts in the other country to directly
serve the civil and commercial judicial documents on or take
evidence from their nationals in the receiving country in
conformity with the laws of the receiving country. Under
these circumstances, the person concerned may be notified to
receive the document at the embassy or consulate. A consular
officer may also serve the document on the litigant directly
at his residence or place of work or by registered mail.
However compulsory measures shall be avoided.
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