The service procedure is one of the key matters reviewed by Chinese courts in the recognition and enforcement of foreign judgments. There is no specific stipulation in China, at present, about how to review the procedure of services. Nevertheless, we attempt to learn the practices by Chinese courts from relevant decided cases.
This post is an introduction to the article titled “Classification Review on the Service in Foreign Civil and Commercial Cases” (论对外国民商事案件送达程序的分类审查), which reflects Chinese judges’ thoughts on reviewing the service procedure in practice. The article was published in “Wuhan University International Law Review” (武大国际法评论) (Volume 19, No. 2, December 2016) by Jiao Xiaoding, who is a judge at Guangdong High People’s Court as well as a doctoral candidate in School of Law, Wuhan University. The paper is an intermediate result of the project “Belt and Road Initiative and Legal Cooperation”, funded by the Key Research Institutes of Humanities and Social Sciences, China’s Ministry of Education.
1. Characteristics of the review on the service procedure in Chinese courts
On 21 May 2015, the author retrieved the rulings published on the China Judgments Online using key phrase “Request on Recognition and Enforcement of Foreign Judgments” as cause of action, and obtained a total of 274 rulings, among which 19 involved the service procedure in parts such as the parties’ arguments, the court’s factual findings and holdings. After analyzing the 19 rulings, the author indicates that the review on service procedure in Chinese courts has the following characteristics:
(1) Different understandings of the service procedure’s scope
Some courts only review whether the parties concerned are properly notified of the proceedings, some only review whether the judgment is properly served, and others review both.
(2) Disunity of the review criteria
Some courts no longer review the service’s legality once the parties concerned, or only the respondent, confirm(s) that he/she is properly served. By contrast, in some courts’ view, the service’s legality cannot be established in absence of supportive documents, even if the respondent made the aforementioned acknowledgment.
(3) Ambiguity of the review bases
Some courts expressly indicate that the review basis is bilateral treaties on judicial assistance, while others, based on the laws of the requesting state, review the evidence of proper service issued by foreign courts or other administrative authorities.
(4) Disagreements over the order of reviewing on service and other matters
Some courts review both the effectiveness of a judgment and the service procedure at the same time. By contrast, other courts no longer review the service’s legality when the effectiveness of a judgment cannot be ascertained.
2. Legal bases for Chinese courts reviewing the service procedure
Specific rules are issued by China’s Supreme People’s Court (SPC) with respect to the review of service procedure, such as the “Provisions on the Procedural Issues concerning the Application of Chinese Citizens for the Recognition of Foreign Divorce Judgments” (关于中国公民申请承认外国法院离婚判决程序问题的规定）and the “Provisions on Issues concerning People’s Courts’ acceptance of the Application for the Recognition of Foreign Divorce Judgments” (关于人民法院受理申请承认外国法院离婚判决案件有关问题的规定）. However, the said provisions shall only apply to foreign divorce judgments with respect to the parties’ marital status, and not deal with those involving matters, such as the division of property, living expenses and the custody of children, as well as other foreign civil and commercial judgments.
The SPC also published some replies to lower courts’ requests for instruction on certain cases, in order to guide the adjudication of similar subsequent cases for local courts nationwide. Among the SPC’s replies, three cases addressed the issue of service procedure in reviewing foreign civil and commercial judgments other than divorce judgments regarding marital status,
(1) Case of CHORVANASLXIZMAT Company’s application for recognition and enforcement of an Uzbek civil judgment
The case was filed before the Urumqi Intermediate People’s Court, which considered that a ruling against recognition and enforcement of an Uzbek civil judgment should be made. Upon consent of the Xinjiang Uygur Autonomous Region High People’s Court and the SPC, the Urumqi Intermediate People’s Court finally rendered such ruling against recognition and enforcement.
Pursuant to the China-Uzbekistan bilateral treaty and the Uzbek Procedure Law, the Urumqi Intermediate People’s Court reviewed the service procedure, and considered that copies of the summon and the complaint were served in a manner incompatible with Uzbek laws and the provisions concerning service procedure of the bilateral treaty. The court, therefore, found that the respondent was not properly served. In addition, the court held that the judgment did not come into effect, considering the fact that the service of judgment did not meet the requirements regarding the time limit and the service method provided in Uzbek laws.
The Xinjiang Uygur Autonomous Region High People’s Court considered that the key issue was whether the manner of service is lawful. According to provisions on diplomatic or consular service in the China-Uzbekistan bilateral treaty, if the respondent was properly notified of the proceedings, and was able to arrange for his defense, the service of the summon shall be valid. Meanwhile, according to the Uzbek Procedure Law, since the judgment was not properly served, it was not effective.
The SPC also considered that the service of the judgment did not conform to the bilateral treaty, and impaired China’s sovereignty, and thus, it confirmed the ruling against recognition and enforcement of the Uzbek civil judgment.
(2) Case of Hukla Company’s application for recognition and enforcement of a German commercial judgment
The case was filed before the Beijing No. 2 Intermediate People’s Court, which considered handing down a ruling against recognition and enforcement of a German commercial judgment. Upon consent of the Beijing High People’s Court and the SPC, the Beijing No. 2 Intermediate People’s Court rendered such ruling.
In its report to the SPC, the Beijing High People’s Court stated that given the fact that both China and Germany ratified the “Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” (关于向国外送达民事或商事司法文书和司法外文书公约), the review on the service of judicial documents should be done in accordance with the said convention. Since China made a reservation on service by post when acceding to the convention, the German court had posted the judgment to the defendant in a manner incompatible with Chinese law. Accordingly, the Beijing High People’s Court proposed a ruling against recognition and enforcement of the German judgment.
The SPC agreed with the Beijing High People’s Court, and did not recognize the manner of service by the German court. The SPC hold that the German judgment was not yet in force, so Hukla Company (the applicant) was not eligible to apply for recognition and enforcement. The SPC added that the applicant may reapply for recognition and enforcement once the judgment was served in a manner compatible with Chinese law; otherwise, a Chinese court should render a ruling to reject the application, provided that the applicant still insisted on the application.
(3) Case of Uzprommashimpeks Company’s application for recognition and enforcement of an Uzbek commercial judgment
The case was filed before an Intermediate People’s Court of Zhejiang Province, which considered rendering a ruling against the recognition and enforcement of an Uzbek commercial judgment. Upon consent of the Zhejiang High People’s Court and the SPC, the Intermediate People’s Court rendered such ruling.
The Zhejiang High People’s Court considered that the service procedure should be reviewed based on the China-Uzbekistan bilateral treaty on judicial assistance. Article 12 of the said treaty expressly provides that service by post is not lawful, and hence, the service by post of the Uzbek judgment is inconsistent with the treaty, nevertheless the judgment states that the respondent was summoned legally but failed to appear in court. Consequently, the respondent was not properly served in case of a default judgment.
The SPC also held that the review basis is the China-Uzbekistan bilateral treaty. More specifically, whether the absent party was legally summoned shall be determined by the laws of the requesting state. Since the Uzbek judgment stated that the respondent was legally summoned, the service by post is legal. However, service by post is inconsistent with the bilateral treaty, and impairs China’s judicial sovereignty, therefore, the SPC rendered a ruling against recognition and enforcement of the Uzbek judgment.
CJO’s summary of the three courts’ opinions:
First, in terms of the service of the summon, the intermediate people’s court, the high people’s court, and the SPC have different opinions: the intermediate people’s court held that the respondent was not summoned legally; the high people’s court considered that the respondent was summoned legally; and the SPC did not take a stand on whether the respondent was legally summoned.
Second, with respect to the service of the judgment, the three levels of courts all held that the judgment was not properly served, but they adopted different legal bases: the intermediate people’s court and the high people’s court relied upon the laws of the requesting state, while the SPC reviewed the service based on the bilateral treaty.
The author concludes that Chinese courts tend to review the legality of service procedure based on the laws of the requesting state, which should be understood in a broad sense, i.e., including its domestic law and international treaties acceded to by the state Furthermore, it is the laws of the requesting state that decides whether its domestic law or international treaties should be applied first.