Viewpoint | A Brief Discussion on Service of Process Issues in Foreign-Related Civil Litigation

According to Article 283 of the Civil Procedure Law of the People's Republic of China (2023 Amendment), the people's court may serve litigation documents to parties without domicile within the territory of the People's Republic of China by ten statutory methods, including:

(1) Service in accordance with the methods stipulated in international treaties concluded or jointly participated in by the recipient's country and the People's Republic of China;

(2) Service through diplomatic channels;

(3) For recipients with Chinese nationality, service may be entrusted to the Chinese embassy or consulate in the recipient's country;

(4) Service to the litigation agent entrusted by the recipient in the case;

(5) Service to a wholly foreign-owned enterprise, representative office, branch, or authorized business agent established by the recipient within the territory of the People's Republic of China;

(6) If the recipient is a foreigner or stateless person who serves as the legal representative or principal responsible person of a legal person or other organization established within the territory of the People's Republic of China, and is a co-defendant with that legal person or organization, service shall be made to that legal person or organization;

(7) If the recipient is a foreign legal person or other organization whose legal representative or principal responsible person is within the territory of the People's Republic of China, service shall be made to that legal representative or principal responsible person;

(8) If the law of the recipient's country permits postal service, service may be made by mail; if the return receipt is not returned within three months from the date of mailing, but it can be deemed that service has been effected based on various circumstances, the expiration date shall be regarded as the date of service;

(9) Service by electronic means that can confirm receipt by the recipient, except where prohibited by the law of the recipient's country;

(10) Service by other methods agreed upon by the recipient, except where prohibited by the law of the recipient's country.

If service cannot be effected by the above methods, service by public notice shall be made, and it shall be deemed served after sixty days from the date of the notice.

The "Several Provisions of the Supreme People's Court on the Service of Judicial Documents in Foreign-Related Civil or Commercial Cases (2020 Amendment)" particularly emphasize that when the recipient's country has a judicial assistance agreement with China or is a member of The Hague Service Convention the service procedures stipulated in the treaty shall be given priority.

In this case, since the foreign defendant's domicile could not be directly obtained through household registration inquiry, and because he appeared as a co-defendant with Defendant Two, I initially discussed with the judge to adopt the provision of item six: "If the recipient is a foreigner or stateless person who serves as the legal representative or principal responsible person of a legal person or other organization established within the territory of the People's Republic of China, and is a co-defendant with that legal person or organization, service shall be made to that legal person or organization." However, the judge required evidence that he was the legal representative or principal responsible person of the involved legal person. Since he was neither the legal representative nor could prove to be the "principal responsible person," this method of service could not be used.

It should be noted that this method of service is newly added in the 2023 version of the Civil Procedure Law. Many courts are cautious in applying it. It is relatively easier for judges to accept if it can be proven that the natural person defendant is the legal representative of the involved legal person or organization. If not the legal representative but to be served as the principal responsible person, it should be judged comprehensively according to the provisions on "directors, supervisors, and senior executives" in the Company Law and other relevant laws and regulations, combined with the articles of association and other proof documents. In practice, many companies' articles of association are simply modified from the so-called standard templates of the Market Supervision Bureau, without detailed provisions on which positions are senior management or principal responsible persons, so defining the position of "principal responsible person" is somewhat difficult.

For foreign nationals with habitual residence within China, Article 533 of the Supreme People's Court's Interpretation on the Application of the Civil Procedure Law of the People's Republic of China (2022 Amendment) clearly states that service may be made directly to the natural person.

The determination of domicile status should be combined with the principle of closest connection established in Article 2 of the Law of the People's Republic of China on the Application of Laws to Foreign-Related Civil Relations, comprehensively considering continuous residence evidence such as work certificates, residence registration, and lease contracts.

In this case, I applied for the court to issue a "Lawyer's Investigation Order" to obtain the defendant's address information from the Exit-Entry Administration Bureau and retrieved his employment contract. The combination of these proved that the natural person defendant had lived at a certain address for more than one year, which the court accepted as his habitual residence, and service was made by mail.

According to Article 44 of the Law of the People's Republic of China on the Application of Laws to Foreign-Related Civil Relations, the law applicable to tort liability follows:

1. Priority is given to the law of the place where the tort occurred;

2. Second priority is given to the law of the common habitual residence;

3. Parties are allowed to choose the applicable law by subsequent agreement.

This rule on applicable law directly affects the recognition of the effectiveness of service documents, requiring that the method of service must comply with both procedural law provisions and the applicable law requirements indicated by substantive law.

1. Electronic Service

Must meet:

- The recipient clearly knows and agrees to receive

- The law of the recipient's country does not prohibit electronic service

- Use of verifiable technical means to confirm receipt

2. Service to Representative Offices

Applicable to:

- The recipient has established a wholly foreign-owned enterprise in China

- Establish a legally registered representative office

- There is an authorized business agent to accept service

3. Service through diplomatic channels

The transfer procedures stipulated in the "Notice of the Supreme People's Court, Ministry of Foreign Affairs, and Ministry of Justice on Several Issues Concerning Mutual Entrusted Service of Legal Documents between Chinese Courts and Foreign Courts through Diplomatic Channels" should be followed.

For foreign natural persons working in mainland China, the choice of service method must first confirm their residence status. If it is determined that they have a habitual residence within China, the provisions of Article 283, Item 4 of the "Civil Procedure Law of the People's Republic of China (2023 Amendment)" regarding service to litigation agents or direct service to the person can be directly applied. If there is no clear residence, international treaties or diplomatic channels should be prioritized, supplemented by new methods such as electronic service, and finally completed through service by announcement. The entire process must strictly follow the legal application rules established by the "Law of the People's Republic of China on the Application of Law to Foreign-related Civil Relations" to ensure coordination and unity between substantive and procedural law.

According to network data collections, for foreign natural persons with fixed residence in China, service by mailing to their registered address supplemented by telephone confirmation Composite service method has been recognized as effective service in judicial practice. This service method ensures the substantive condition that the recipient is aware of litigation rights and obligations by verifying the consistency of the registered address and contact information, combined with a secondary telephone confirmation procedure.

In the case of [(2019) Xiang 01 Min Chu 2651], the court clearly pointed out that when serving documents to foreign parties according to the Hague Service Convention, the translation obligation must be strictly fulfilled. The plaintiff failed to submit Indonesian and Indian language translations of the complaint and other judicial documents within the prescribed time, resulting in ineffective service and ultimately dismissal of the lawsuit. The ruling emphasized the mandatory nature of the translation obligation in foreign-related service.

Similar judicial rules were reaffirmed in the case of [(2021) Min 02 Min Zhong 6585]. The core reason for the appellate court overturning the original judgment was that the first instance did not complete the service procedure according to the convention, especially failing to fulfill procedural requirements such as document translation, constituting a serious violation of legal procedures.

For foreign nationals without fixed residence in China, the rule established in the judgment of [(2019) Chuan 01 Min Zhong 16449] shows: the court must exhaust legal methods such as service under the convention and diplomatic channels before initiating service by announcement. The first instance court's direct use of domestic service by announcement was deemed to deprive the party of litigation rights by the appellate court.

The case of [(2016) Zhe 02 Min Zhong 2121] further refines this rule, pointing out that for parties who have acquired foreign nationality but have historical residence records in China, foreign-related service procedures should still be prioritized. The original court's failure to serve according to prescribed procedures before issuing a default judgment constituted procedural illegality.

For foreign natural persons working in mainland China, the service method should be determined based on their actual residence status: those with fixed residence can use mailing to the registered address supplemented by telephone confirmation; if residence status is doubtful or foreign-related factors are obvious, the Hague Service Convention procedures must be strictly applied with translation obligations fulfilled; if service by announcement is necessary, proof of exhausting other service methods must be submitted. The legality review focuses on verifying address accuracy, language text compliance, and the progressive application logic of service methods.

First, it is necessary to confirm whether the recipient's nationality country is a contracting party to the Hague Service Convention, which has mandatory binding force on cross-border service of judicial documents. If it is a contracting party, service should be completed through central authorities to avoid directly using domestic law service methods.

For countries with bilateral judicial assistance agreements, special provisions on document service in the agreements should be checked simultaneously. Some bilateral agreements may shorten service time limits or allow simplified certification procedures, and special provisions should be prioritized.

According to the foreign-related provisions of the Civil Procedure Law, for foreign defendants with habitual residence in China, a combination of direct service, postal service, and electronic service can be used. It is recommended to adopt two or more service methods simultaneously, such as mailing written documents followed by sending confirmation emails to form complementary evidence chains.

The service process must be fully recorded and notarized, focusing on preserving the following evidence: signed receipt records of mailing slips, read receipts of electronic service, confirmation letters of service addresses, etc. It is recommended to use court special delivery for mailing and keep original vouchers with postal stamps.

Requests for assistance must be submitted to the Ministry of Foreign Affairs through the foreign affairs department of the High People's Court, including materials such as certified copies of the complaint, bilingual service requests, and party identification documents. Document translations must be certified by qualified translation agencies.

Establish a communication mechanism in advance with the foreign affairs office of the court's jurisdiction, estimating that the diplomatic service cycle usually takes 6-12 months. For urgent cases, an "urgent" mark can be applied, but the actual acceleration effect depends on the judicial efficiency of the counterpart country.

Before adopting service by announcement, legal service methods such as the convention route and diplomatic channels must be exhausted, and written proof of unsuccessful service must be obtained. Proof materials should include: return notices issued by the post office, certificates from embassies or consulates stating the party cannot be found, etc.

The announcement content must fully state the key points of the documents, and the announcement medium should be published simultaneously in national legal newspapers and on the court's official website. After the announcement period expires, the publication proof should be archived, and a special explanatory document including the service process record should be prepared.