Notice on Issues Concerning Service of Process in International Cases through Diplomatic Channels

(This work is published and authored by Robert Zhang and Steve Li, international arbitration lawyers registered in Shanghai, China. All rights reserved.)

Notice on Issues Concerning Service of Process in International Cases through Diplomatic Channels

Issued by

The Supreme People's Court

The Ministry of Foreign Affairs

and

The Ministry of Justice

(August 14, 1986)

Wai Fa [1986] No. 47

All competent courts and embassies and consulates abroad:

In principle, processes in international cases of civil and economic disputes shall be served through diplomatic channels according to the principle of reciprocity in the absence of a bilateral agreement between the PRC and a foreign country. There were no unified regulations in this respect as there were not many processes to be served in international cases. With the implementation of the opening-up policy, more and more processes need to be served in international civil, economic and other court cases. In order to solve the problems in the service of processes in response to the new tendency, and in accordance with the applicable provisions of the Civil Procedure Law of the People's Republic of China (Trial), it is hereby notified as follows in respect of service of process by a court of the PRC at the request of a court of a foreign country or vice versa in international cases of civil and economic disputes through diplomatic channels:

I.     Except for countries that have entered into applicable agreements with the PRC, a process to be served on an individual or a legal entity of the PRC or a person of a third country or without nationality within the territory of the PRC through diplomatic channels at the request of a court of county that has established diplomatic relations with the PRC shall generally be served in accordance with the following procedures and requirements following the principle of reciprocity:

1.    A process from a foreign country shall be submitted by the embassy of that country in the PRC to the Department of Consular Affairs of the Ministry of Foreign Affairs, the People's Republic of China, and then forwarded to the high people's court of competent jurisdiction to designate an intermediate people's court of competent jurisdiction for service. Upon signature by the recipient, the attached receipt shall be returned by the intermediate people's court to the high people's court, and forwarded to the Department of Consular Affairs, then to the embassy of that country. Where no receipt is attached, the intermediate people's court shall issue a certificate of service to the high people's court, and forwarded to the Department of Consular Affairs, then to the embassy of that country.

2.    A request for service shall be used for the service of any process. The request for service and the process to be served shall be accompanied by a version translated into the Chinese language.

3.    Where the content of a process is detrimental to the sovereignty or security of the PRC, the request for service of the process shall be rejected. Where the recipient is entitled to diplomatic privileges and immunities, the request for service shall be rejected in principle. Where the service of a process is not within the scope of authority of any court of the PRC or a process cannot be served due to unknown address or other reasons, the high people's court receiving the request for service shall issue a statement of response or indicate the reasons for failure of service, and the Department of Consular Affairs shall explain the reasons and return the request for service and the process to the embassy of that country.

II.    Foreign embassies and consulates in the PRC may directly serve processes on their own nationals within the territory of the PRC without damaging the sovereignty and security of the PRC; provided, however that they may not take compulsory measures. Where a court of a foreign country requests service of process on a national of that country within the territory of the PRC through diplomatic channels, the process may also be served according to the provisions of Article I.

III.  Where a foreign country rejects the request of a court of the PRC for service of process through diplomatic channels or imposes special restrictions thereon, the PRC may take corresponding measures where appropriate.

IV.   A process issued by a court of the PRC to be served on a person within the territory of a foreign country through diplomatic channels shall be served in accordance with the following procedures and requirements:

1.    The process shall be reviewed by the high people's court of the province, autonomous region, or municipality directly under the Central Government where the court issuing the process is located, and forwarded by the Department of Consular Affairs of the Ministry of Foreign Affairs.

2.   The name, sex, age, and nationality as well as the detailed address in foreign language of the recipient shall be accurately indicated, and the basic information of the case shall be sent to the Department of Consular Affairs of the Ministry of Foreign Affairs for easy forwarding.

3.  A request for service shall be attached. If the name of the foreign court to be requested is unknown, the request for service shall be delivered to the court at the highest level of the area where the person to be served is located. The request for service and the process to be served shall also be accompanied by a version translated into the language of the country or the language of a third country that the country agrees to use. If a foreign country has special requirements for notarization or authentication of the request for service and the process to be served, such requirements shall be notified by Department of Consular Affairs of the Ministry of Foreign Affairs on a case-by-case basis.

V.    A court of the PRC may request the embassy or a consulate of the PRC in a foreign country to directly serve processes on persons of the PRC nationality within the territory of the foreign country if such direct service is permitted by the foreign country. Any such process may be served without a translated version.

VI.  The fees for service of process by a court of the PRC at the request of a court of a foreign country or vice versa through diplomatic channels shall be charged according to the principle of reciprocity. The fee paid by a court of a foreign country for requesting a court of the PRC for service of process shall be transferred by the Consular Department of the Ministry of Foreign Affairs to the competent high people's court. And the fee paid by a court of the PRC for requesting a court of a foreign country for service of process shall be transferred by the competent high people's court to the Consular Department of the Ministry of Foreign Affairs for forwarding. Provided, however, that the additional cost incurred in service of process by special means as requested shall be borne by the requesting court.

VII. Service of process by a court of the PRC at the request of a court of Japan or vice versa shall be governed by the Notice on the Use of Service Receipt in Service of Process between China and Japan dated October 12, 1982 issued by the Supreme People's Court.

VIII.       Investigation or collection of evidence by a court of the PRC at the request of a court of a foreign country or vice versa shall be governed, mutatis mutandis, by the above provisions.

This Notice shall come into effect from the date of issuance. Any doubt arising from or relating to the application of this Notice shall be reported to the competent authority.