|Cooperation between Courts of China and Foreign Countries|
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.