In China, service of process not only occupies a significant number of resources of the courts, but also delays the progress in case hearing. Why have Chinese courts been perplexed by the dilemma of service of process in civil cases for a long time? The investigation conducted by Shandong High People's Court in 2016 may help us find out what happened.
In 2016, Shandong High People's Court investigated of each court in Shandong Province, in order to find out the real situation of the service in civil cases. From the information reflected in the investigation report, we can understand the problems that Chinese courts may encounter in service in civil cases.
I. Means and Difficulties of Service in Chinese Courts
1. Who serves process in civil cases?
At present, the practices of courts in Shandong Province are mainly as follows:
(1) Service by the judge: All litigation documents are hand delivered by the judge who is in charge of the case hearing.
(2) Service by the Trial Division: Each Trial Division sets up a service team responsible for the service of process.
(3) Service by the court: The court establishes a service organ, usually affiliated to the Case-Filing Division or the Judicial Police Force, responsible for the service of all cases in the court.
(4) Service in mixed ways: after the case acceptance, the first service is made by the court's service organ, and the subsequent service is completed by the Trial Division or the judges hearing the case.
2. How to serve process?
First, the service of first instance cases is mainly through personal service and service by mail. The sum of these two types of service accounts for 80-90% of all means of service. Among them, personal service usually accounts for 40% - 50%, while service by mail represents 30% - 50%.
Second, the service of the second instance cases is mainly through service by mail and service by entrustment. Because in the first instance, the addresses of the parties concerned have been determined, the court of the second instance tends to serve by mail or entrust the court of the first instance to serve.
Third, service by publication is on the rise. At present, the number of cases served by publication is increasing year by year. The proportion of cases served by publication in courts in Shandong ranges from 10% to 20%, and that in some courts is as high as 30%.
3. Service dilemma
First, the success rate of the first service is not high. The success rate of the first service in the first instance cases is not high, averaging about 50%. The process needs to be often served twice or more than three times in most cases.
Second, the service takes too long. The service period accounts for a large proportion of the trial period, about 20% to 30%.
Third, the service occupies a lot of judicial resources. The process needs to be served at least twice in one case. If there are multiple parties involved, or if the parties concerned can't be found or refuse to cooperate, the times of service will multiply.
II. Reasons for the Service Dilemma in Chinese Courts
1. It's hard to locate the parties concerned
The difficulty in locating the parties concerned is the primary cause of service dilemma. Specifically:
First, it is difficult to confirm the valid address of the person to be served. Because of the frequent population movements in China, many parties concerned either do not have a fixed residence or change their residences frequently.
Second, it is difficult to identify the person to be served. The failure to identify the persons being served by the court's process server arises when some of them intentionally concealing their identities.
2. The person to be served refuses to cooperate with the service
First, the person to be served refuses to meet. Although some persons being served can be contacted by phone, the service server cannot enter their residence and hand deliver the papers to them.
Second, the person to be served refuses to sign. Some persons being served refuse to receive the legal papers and even threaten or insult the court staff.
Third, the conditions of “leaving process at the place of abode” are difficult to meet. It is stipulated by the law that “leaving process at the place of abode” is permitted, that is, the process server leaves the court papers in the residence of the person to be served, and invites the relevant personnel to witness the process. But many people do not want to be witnesses. It is also stipulated by the law that the process server can record the process by taking photos and videos. But the process of taking photos and videos will lead to confrontation and even violent resistance from onlookers.
3. Low efficiency of service by mail
First, the mail return rate is high. For example, the mail return rate of Huancui Primary People’s Court of Weihai Municipality is about 27%, and about 60% for Donggang Primary People’s Court of Rizhao Municipality. Reasons therefor include: the address information of the parties is inaccurate or has changed, and the parties concerned refuse to sign for the mail to avoid litigation.
Second, the return period of mailing receipt is long. After mailing, the court could not get a receipt from the post office in time, which affected the subsequent court proceedings. For example, in Weifang Intermediate People’s Court, the average time from the service completed by the post office to giving the receipt to the court is 11.6 days, and can be up to 58 days.
4. The efficiency of service by publication is even lower
In accordance with China's Civil Procedure Law (CPL), if the process cannot be served by other means, the court can serve by publishing a notice in the newspaper, but the efficiency of service by publication is extremely low. On the one hand, at present, the service by publication is usually made by an announcement in the newspaper, but the vast majority of the parties concerned do not read the newspaper at all. On the other hand, the service by publication takes a long time. According to the law, the time of each publication is 60 days, and a case usually needs to be published at least twice (serving the summon and the judgment respectively). In other words, the service by publication took an additional 4 months. By contrast, generally speaking, cases that are not served by publication can be closed in 3 to 6 months.
The service dilemma in civil cases revealed in the investigation of Shandong High People's Court actually exists in all courts in China. What’s worse is that, if the plaintiff could not provide the accurate address and phone number of the defendant, the court would be reluctant to accept the plaintiff's complaint, because the court does not have enough resources to find the defendant and complete the service therefor.
The Supreme People's Court (SPC) of China is trying to solve this problem, and promulgated the “Several Opinions on Further Strengthening the Service of Process in Civil Cases” (关于进一步加强民事送达工作的若干意见) in May 2018. There are three main points in the Opinions:
First, the court should request the parties concerned to provide the address, fax number, e-mail, mobile phone number, and WeChat (the most popular communication APP in China) account, and confirm these contact methods in writing. If the court serves process by these means while the parties concerned do not receive the said, the parties concerned shall bear the resulting consequences.
Second, if the contracts, the e-mail exchanges involved in the litigation have agreed on the service addresses, these addresses can be used as the service addresses of the parties concerned. Prior to that, Chinese courts had disputed whether these addresses could be used in litigation.
Third, if the parties concerned do not provide addresses in the current litigation, but when it participated in other lawsuits or arbitrations within one year, and provided addresses to the relevant court or arbitration tribunal, then such addresses can also be used as the addresses in the current litigation.
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Lin Haibin also contributes to the post.