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Serving Judgments to China-based Defendants by Mail? Think Twice

Sun, 29 Jan 2023
Categories: Insights
Contributors: Meng Yu 余萌
Editor: C. J. Observer

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Key takeaways:

  • Proper service of process is vital for foreign judgment enforcement in China. It is both court summons and court judgments that require proper service to China-based defendants.
  • Under Chinese laws, it is invalid to serve foreign judgments by mail, by e-mail, or by fax to litigants in China.
  • In the view of Chinese courts, improper service of judgments would constitute a dismissal or refusal ground for judgment enforcement in China.

For those wishing to enforce a foreign judgment in China, sloppiness in the service of process is not just a little mistake, but a painful lesson.

One may wonder how come China’s Ministry of Justice (MOJ) would reply to the question of service of process, in particular service by mail in detail, in its recent “Frequently Asked Questions and Answers on International Judicial Assistance in Civil and Commercial Matters” (hereinafter “the MOJ Answers”, 国际民商事司法协助常见问题解答) posted on its official website on 24 June 2022.

A reasonable guess: the question like ‘can I serve foreign documents by mail, or by email, or by fax’ is just so frequently asked.

The MOJ’s reply is ‘No’. Quite straightforward. In short, this type of service is not allowed to China-based litigants, and will be deemed invalid service of process, a fatal factor resulting in unsuccessful recognition and enforcement of foreign judgments in China.

Knowing the MOJ Answers is just a start. As we have also received similar requests for advice from quite a few judgment creditors, it is time to look into these questions on serving foreign judicial documents in China. And in this post, we will focus on the service of foreign judgments.

Do Foreign Judgments Need to be Served to China-based Defendants?

Yes. Just like foreign court summons, foreign judgments also need to be served to litigants in China.

Proper service of process is vital for foreign judgment enforcement in China. In this context, it is both court summons and court judgments that require proper service to litigants in China.

Some litigants may overlook the importance of proper service of judgments. Some may even confuse the service of court summons with that of court judgments, leading to a false perception that all the job is done once a court summon is served properly.

As shown in the cases discussed below, improper service of judgments, let alone failure to serve judgments, would be a substantial obstacle to applications of enforcing foreign judgments in China.

Can Foreign Judgments be Served by Mail?

No. As the MOJ Answers put it, under Chinese laws, it is invalid to serve foreign judgments by mail, by e-mail, or by fax to litigants in China.

To be more specific, service by international mail or e-mail or fax is an invalid service pursuant to Chinese law. Where a foreign court issues a judgment based on this type of service, if this foreign judgment requires recognition and enforcement in China, such service of process will be regarded as a procedural defect, and hence the judgment would not be recognized and enforced by Chinese courts.

What Happens if Serving Judgments by Mail?

In the view of Chinese courts, when a foreign judgment is not properly served upon the litigant in China, its appeal rights were not reasonably guaranteed, which would constitute a dismissal or refusal ground for judgment enforcement under Chinese laws.

An example can be found in a reply from China’s Supreme People’s Court (SPC) for the case Hukla-Werke GmbH Matratzenund Polstermoebel v., Beijing Fukela Furniture Selling Co., Ltd.,[1] where the judgment creditor applied for enforcement of a German court judgment. Both Germany and China are member states of the Hague Service Convention, and in that German court proceeding, the summons and complaints were served by Foreign Central Authority under Hague Service Convention, but the judgment was served by mail. In this reply, the SPC indicated that the service of judgment by mail is not accepted by China, which renders the judgment ineffective for the defendant – a dismissal ground for enforcing foreign judgments.

Another example is the case LaSARLK.C.C v. Chenzhou Hualu Digital Technology Co., Ltd.,[2] where the judgment creditor applied for enforcement of a French court judgment. The local court in Hunan Province ruled to refuse to enforce the French judgment because the foreign judgment was not properly served on the Chinese defendant (as the court did not find any record of serving judgment in the Ministry of Justice), which deprived the defendant of the right to appeal, endangering the public policy – a refusal ground for enforcing foreign judgments.

One difference between a dismissal ground and a refusal ground is the consequence, the former results in “dismissal of the application” (驳回申请) while the latter leads to “refusal of recognition and enforcement” (不予承认和执行). After the dismissal, the applicant may choose to re-apply when the application satisfies the requirements for acceptance later on. By contrast, in case of a refusal of recognition and enforcement, the refusal ruling is final and cannot be appealed. A detailed discussion can be found in our earlier post “Conditions for Enforcement of Foreign Judgments in China”.

What Is the Right Thing to Do Then?

The correct approach is to submit the request for service to the Ministry of Justice or the Ministry of Foreign Affairs through the channels stipulated in the pertinent treaty (e.g., Hague Service Convention, bilateral judicial assistance treaties) or diplomatic channels (in the absence of pertinent treaties), and Chinese courts will serve the documents. This also comes from the MOJ Answers.

At the end of the day, we can never overlook the importance of proper service of foreign judgments in China.

 

[1] Hukla-Werke GmbH Matratzen- und Polstermoebel v., Beijing Fukela Furniture Selling Co., Ltd., (2010)Min Si Ta Zi No.81(Reply of China's Supreme People's Court, Dec. 23, 2010).

[2] LaSARLK.C.C v. Chenzhou Hualu Digital Technology Co., Ltd., (2016) Xiang 10 Xie Wai Ren No. 10 (Chenzhou Intermediate People's Court, June 20, 2017).

 

 

 

 

Contributors: Meng Yu 余萌

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