Thus Spoke Chinese Judges on Cross-border Service of Process: Insights from Chinese Supreme Court Justices on 2023 Civil Procedure Law Amendment (2)

Key Takeaways:

The 2023 CPL adopts a problem-oriented approach to reforming the service of process in foreign-related cases, aiming to address difficulties by expanding available channels and shortening the service by publication period.
The inclusion of more entities accepting service of process on behalf of others and the introduction of flexible methods of service signal a broader initiative to adapt legal procedures to the complexities of international cases.
This reduction in the service by publication period, from three months to 60 days for parties not domiciled in China, reflects a concerted effort to enhance efficiency in foreign-related cases.

On 1 Sept. 2023, the Fifth Amendment to the PRC Civil Procedure Law (the ‘2023 CPL’) was adopted by China’s top legislature, the National People’s Congress’s Standing Committee. The 2023 CPL has made significant modifications to international civil procedures. Among others, major changes can be found in rules on international civil jurisdiction, recognition and enforcement of foreign judgments, and cross-border service of process.

We have provided a Pocket Guide to acquaint CJO readers with these salient developments in the 2023 CPL.

In December 2023, Judge Shen Hongyu and Judge Guo Zaiyu from the Fourth Civil Division of China’s Supreme People’s Court(SPC) published an article “Commentary and Interpretation of the Revised Provisions of the Foreign-Related Part of the Civil Procedure Law” (《民事诉讼法》涉外编修改条款之述评与解读) in “China Law Review”(中国法律评论)(No. 6, 2023), sharing their insights on the developments in the 2023 CPL.

The purpose of this series is to present the views of the SPC Judges, Judge Shen and Judge Guo, on certain key aspects, including rules on international civil jurisdiction, rules on cross-border service of process and taking evidence, and rules on recognition and enforcement of foreign judgments.

The “difficulty in service of process” in foreign-related cases has long been a major obstacle to the efficiency of civil and commercial litigation in China. There has been a strong call from various sectors of society to improve the efficiency of the service of process.

The amended CPL takes a problem-oriented approach and reforms the foreign-related service system based on the practical experience and demands of service of process in foreign-related cases. It aims to overcome the difficulty in service by expanding the channels available and shortening the period for service by publication.

Art. 283 of the 2023 CPL improves the existing system of foreign-related service of process in the following aspects.

1、Expand channels for foreign-related service of process

1.1 More entities accepting service of process on behalf of others

On one hand, Art. 283 removes some restrictions on the acceptance of service by existing entities. Specifically, agents ad litem or branch offices of legal persons no longer need to be “authorized to accept service on his or her behalf”. Under this Article, legal representatives, whether generally or specifically authorized, have the obligation to accept judicial documents on behalf of the parties they represent. In addition, branch offices, as internal institutions of the persons to be served, are also obliged to promptly deliver judicial documents to the affiliated legal persons after accepting service.

On the other hand, Art. 283 introduces new entities that can accept service, such as wholly-owned enterprises established within the territory of China by the person to be served. It also establishes new rules for service when the person to be served is a foreigner or stateless person serving as the legal representative or principal person in charge of a legal person or other organization established within the territory of China. Additionally, it specifies that when serving a foreign legal person or organization, service can be made to their legal representative or principal person in charge if they are within the territory of the People's Republic of China.

1.2 More flexible methods of service

Art. 283, subparagraph 9, stipulates that electronic service is no longer limited to methods such as fax or email. Electronic service requires only an acknowledgement of receipt by the person to be served, unless such method of service is prohibited by the law of the country where the person to be served is located.

In addition, Art. 283 introduces the provision for service through “other methods agreed upon by the person to be served”. This miscellaneous method of service is relatively open, including options such as delivery by friends or family, as long as the person to be served consents and it does not violate the law of the country where the person to be served is located. What constitutes the consent of the person to be served needs to be clarified in judicial practice. Generally, documents such as a confirmation form for service address filled in by the person to be served or an agreement containing service of process clauses signed by the person to be served can be considered as express consent.

2、Improve the system for service by publication

Service by publication is a legally prescribed method of service. The publication period in domestic cases has been shortened from 60 days to 30 days, which has led to a strong call from various sectors of society that the period for service by publication in foreign-related cases should also be shortened in order to improve the efficiency of foreign-related litigation.

In the course of drafting, some suggestions were made to consider bridging the period for service by publication in foreign-related cases into line with that in domestic cases, which is 30 days, with the aim of improving the efficiency of foreign-related service of process.

The relevant periods in foreign-related civil and commercial trial procedures are generally twice as long as those in domestic cases. For example, the appeal period and the period for submitting a defense statement for parties not domiciled in the territory of China are both 30 days, while the periods are 15 days for parties domiciled in the territory of China. Therefore, the Fifth Amendment reduces the period for service by publication for parties not domiciled in the territory of China from the current three months prescribed by the CPL to 60 days.

Photo by Zongnan Bao on Unsplash

Contributors: Meng Yu 余萌

Service Procedure

Civil Procedure Law of the People's Republic of China

Evidence in Civil Proceedings in China

Service of Process in Civil Cases

International Civil Litigation in China

Insight: China Legislation

International Service of Process in China