By Ji Pengfei Abstract: Service is a very important system in civil action. It runs through civil proceedings and has significa...
By Ji Pengfei
Abstract:
Service is a very important system in civil action. It runs through
civil proceedings and has significant effect on the whole process of civil
action. The current service of civil procedure law in China focuses on the ex
officio doctrine. Its main purpose is to protect the course of litigation
rather than the parties’ procedural interests. In judicial practice, “difficult
service” is still a problem which troubles courts at all levels. This article
analyses the current status of civil-service system in China and proposes a
reform-oriented service system in the country.
1. Introduction
Service
(songda 送达 in
Chinese) is the behavior of the people’s court to send the litigation documents
and other legal documents to litigants or other participants in the proceedings
in accordance with legal methods and procedures, of which “song” 送
reflects “procedural justice” while “da” 达 covers both
procedural justice and substantive justice. Because only effective service
makes the proceedings move normally down to the next procedure, otherwise the
defect in contact, communication and other aspects will be caused, and the
proceedings will be fragmented (Qi, 2008) .Service is the informing or
notification system of action at law rather than simply sending litigation documents
and legal instruments. The court, through the service of notice of trial,
associates the actions at law of the plaintiff, the defendant and other
participants in the proceedings with the court and after a judgment of action
is made for the parties in court, informs the parties concerned of the
litigation outcome via service, so that the parties may enter into the next
procedure. The service system organically links placing a case on file,
defending, civil preservation, opening a court session, adjudicating, appellate
procedure and other behaviors of all subjects of litigation, and shows their
value in the operation of these procedures. Value of service system is mainly
reflected in the following two aspects: on the one hand, standardizing the
service and restricting a series of behaviors of the court; service itself
shall not only comply with the statutory procedures but also meet the basic
requirements of procedural safeguards. The court shall try to adopt efficient
and simple ways and means of service. On the other hand, service system is the
basic protection for implementation of the principle of the parties involved in
litigation in civil action, since the parties involved have the right to accept
the notice sent by the court, and the court is obliged to send effective
notices to the parties involved on the litigation related matters, which is the
basic premise for the legitimacy of civil judgment. The service pursuant to the
law is the legitimacy premise for start and promoting the judicial proceedings,
and interrelated aspects of legal action, having a direct impact on whether the
civil proceedings can be conducted normally and timely.
2. Status Analysis of Service in China
2. Status Analysis of Service in China
Civil
service system falls under the civil litigation system. Although it is an
important system, it fails to attract enough attention in our country. China’s
current service system mainly has the following problems.
2.1.
Deficiency of Legislative Aspects
1.
Undefined Provisions on the Service Subject
The
subject of civil service is not defined clearly in Chapter 7 of Civil Procedure
Law. Referring to Article 83 of Opinion on the Civil Procedure Law, the court
may be considered as the subject of service mandating, and the court is
responsible for service in practice in general. However, as an official organ
as a legal person, the specific service behavior of the court can only be
completed by specific personnel. This particular staff member to be a judge,
bailiff or clerk is not specified in the relevant laws, resulting in different
practices of the court.
2.
Undefined Provisions on Place, Time and Deadline of Service
The
place of service is not expressly stipulated in Civil Procedure Law or Opinion 民事诉讼法或意见 on
the Civil Procedure Law 民事诉讼法. In practice,
the residence is generally taken as the place of service. In contrast to civil
procedure laws in other countries, the place of service is defined clearly. In
regard to the time and deadline of the service, there is neither principled
provision nor specific stipulation in the section of Service. In the Civil Procedure
Law, only the service deadline of copy of a bill of complaint, answer brief,
notice on members of the collegiate bench and written judgment at the stage of
session opening and judging is stipulated (Zong, 2007) , then for the other
litigation documents, what time standard will the court take to serve, how does
the discretion of the judge restrict and other problems are hard to be
effectively solved, unable to meet the expectability requirements on the
procedures of the parties concerned.
3.
Ossification and Lagging of Mode of Service
For
the modes of service stipulated in the Civil Procedure Law, some are of high
application conditions and some are of long term, resulting in unsuccessful
service or seriously delayed service. Moreover, it can be found from the
judicial practice some modes of service are convenient and safe but not
stipulated in the legislation, such as agent collection, telephone, fax,
electronic service, etc.
2.2.
The Problems in Judicial Practice
The
domestic mode of service is clearly stipulated in the Civil Procedure Law,
including a total of six kinds: direct service, indwelling service, service by
mandate, service by post, service by passing on and service by publication.
1)
The problems existing in direct service
The
direct service means the people’s court sends specially-assigned person to hand
the litigation documents or other legal documents over to the person on whom
the litigation documents are to be served directly. In the juridical practice
(Zhang, 2013) , the persons on whom the litigation documents are to be served
often go to work during working time of the court not in residence, so it is
difficult to directly hand instrument over to the person on whom the litigation
documents are to be served; and some the persons on whom the litigation
documents are to be served have resentment against service and refuse to accept
the legal documents personally, and would like to take the time to delay the
proceedings and even evade their legal responsibilities.
2)
The problems existing in indwelling service
It is
stipulated in Article 79 of Civil Procedure Law that if the person on whom the
litigation documents are to be served or the adult family member living with
him refuses to receive the documents, the person serving the documents shall
ask representatives from the relevant grass-roots organization or the unit to
which the person on whom the documents are to be served belongs to appear on
the scene, explain the situation to them, indwelling the service. There remain
a lot of problems in the practice, mainly in the difficulty in inviting the
witness. Looking for the grass-roots organization or the unit itself is hard,
in the second place, representatives from the relevant grass-roots organization
or the unit is unwilling to witness. Because witness is not set as a statutory
obligation in the law, they shall not be forced to do so. Therefore, indwelling
service often can not be completed effectively (Wang, 2003) .
3)
The problems existing in service by mandate
It is
stipulated in Article 80 of Civil Procedure Law that if direct service proves
to be difficult, service of litigation documents may be entrusted to another
people’s court. The real intention of service by mandate is to improve service
efficiency and save litigation cost. But in reality, part of the court due to
partial and local interests, rarely take the initiative to cooperate with the
service of litigation documents, often make an excuse for no reason; even if
the entrusted courts accept the commission, in most cases, it is difficult for
the entrusted courts to take out the cost from its own working time or shortage
of fund to complete the entrusted matters. It can be said untimely service by
mandate is one of the reasons why many cases can not be completed within the
statutory trial period.
4)
The problems existing in service by post
The
service by post is to send the litigation documents to the person on whom the
litigation documents are to be served by mail through the post office.
Admittedly, service by post is a very convenient and economic mode of service.
Many courts agreed with the postal sector to serve by express mail service. On
the receipt of the service by post indicates the name of the documents to be
served and the signature of the person on whom the litigation documents are to
be served, actually reflecting “sending and accepting”; besides, service by
post also relatively reduces the contrasting feeling of the person on whom the
litigation documents are to be served, achieving a higher rate of successful
service. Nonetheless, service by post has a significant drawback: high postage.
Meanwhile, it is fixed by China’s law that the subject of service can only be
the people’s court, and the service of litigation documents is both a right and
an obligation; and the right and obligation can not be transferred to the
postal department with compensation. Thus the service by post undermines the
seriousness and unity of the law.
5)
The problems existing in service by publication
It is
stipulated in Article 84 of Civil Procedure Law that if the whereabouts of the
person on whom the litigation documents are to be served is unknown, or if the
documents cannot be served by the other methods specified in this Section, the
documents shall be served by public announcement. A few words obviously can not
regulate the complex service by publication in reality. There are multifarious
modes of service by publication adopted if the whereabouts of the person on
whom the litigation documents are to be served is unknown, or if the documents cannot
be served directly from place to place, some courts post up on the bulletin
board in the court; some post up in the residence of the person on whom the
litigation documents are to be served; some make public through People’s Court
Daily 人民法院报. But
circulation domain of People’s Court Daily is narrow(Jiang and Cui, 2013) , a
considerable number of persons on whom the litigation documents are to be
served can not see the newspaper, so the public announcement on the People’s
Court Daily basically can not achieve the purpose of notifying the person on
whom the litigation documents are to be served. Furthermore, it is clearly
defined in the law that the public announcement shall last for 60 days, so for
a case, court summon and judgment shall be served by public announcement, it
takes 120 days by only one service. Although the time of public announcement
will not be included in the time limit, it extends the closing time and
increases the litigation fatigue of the parties involved.
3.
Reform Orientation of Service System in China
3.1.
The Modes of Service in Major Western Countries
For
the legislation on documents service in the current civil procedure laws in
various countries, the principles of service running through the civil
procedures fall into the following kinds:
1)
The principle focusing on serving litigation documents on a party, supplemented
by serving ex officio. Countries adopting such legislation principle are mainly
common law countries. The service is initiated based on the application of a party
and made by the party itself, and made by the powers and functions in
individual cases. In the British Civil Procedure Law, the documents are mainly
served by the party concerned in and the attorney. In the civil action in the
United States, the complaints and summons are not served by the court officials
but by the party concerned in, certainly by the authority in specific
circumstances. In the United Kingdom, it is stipulated in the Rules of Civil
Procedure that the documents issued or prepared by the court shall be served by
the court unless otherwise stipulated by related rules, instructed or ordered
by the court to be served by the designated by the party concerned. In the
United States, writs in addition to the subpoena and summons shall be served by
the US Marshal, Deputy Chief Marshal or other persons specially assigned for
this purpose.
2)
The principle focusing on serving ex officio, supplemented by serving
litigation documents on a party. The meaning of this service is that the
documents shall be served by the court ex officio unless otherwise expressly
provided by the law to be served by the party concerned. Such kind of
legislative principle is adopted by France, Germany, Japan and other civil law
countries and Taiwan of China for civil action legislation. According to the
litigation views of civil law countries, service is the act of a country to
exercise the judicial power, so it shall be made by the court ex officio unless
otherwise provided by law. In civil law countries, though the service is mainly
made ex officio, it is also made by the party concerned. In France, the
documents are served mainly by the bailiff and public prosecutor, or by the
attorney. In Germany, the service from attorney to attorney is stipulated in
the German Code of Civil Procedure. The method of direct service of the copy of
documents by the party concerned or service by fax to the opposite party is
recognized in Japan’s new Code of Civil Procedure.
3)
The principle of serving ex officio. The Soviet Union and China are typical
countries adopting such kind of legislative principle in the Civil Procedure
Law. Even if the transformation trend from ex officio doctrine to doctrine of
punishment on party in China’s Civil Procedure Law, the document serving by the
party concerned is still prohibited in legislation (Zhao, 2008) .
3.2.
Reform Orientation of Service System in China
In
the civil procedures in today’s world, no matter which kind of principle of
service is adopted, serving by the party concerned is absolutely prohibited,
only the emphases of the serving by party concerned and serving ex officio
differ. In contrast to the single practice of our country of serving by the
court ex officio with absolute prohibition of serving by the party concerned,
its deficiency in legislation is clear. It is necessary to gradually and
moderately improve and establish the principles for civil service in China.
With regard to the subject of service, consider to add the service by the party
concerned except for the service by the court.
1)
Subject of service
Given
weakening of judge litigation system mechanism and gradual enhancement of legal
concept of subject consciousness of the party concerned, the reform orientation
of breaking through the court as the sole subject of service and establishing
the service by the party concerned has become inevitable (Xu, 2002) . According
to the above discussion, the scope of subject of service in China covers the
party and the attorney.
2)
Object of service
It is
the scope of documents to be served. To this end, regardless of civil law
countries or common law countries, their basic idea is that documents issued
and prepared by the court are served by the court, otherwise served by the
party concerned. In consideration of the pressure of the court of hard service,
it is better for us to follow the practice of civil law countries, the
specified documents served by the court ex officio, but the party concerned may
apply for serving by himself or his attorney, specifically including the
service of 1) The exchange of legal compliant and answer brief between the
parties concerned. The plaintiff sends a copy of the compliant to the defendant
appellant after the court places on file and sends a copy of the appellate
petition to the other party concerned after the Court of Second Instance accept
and hear the case; 2) Require the opposite party concerned to make a request of
confession or undertaking, for example one party requires the opposite party to
reply on whether to make confession such a request may be served by the parties
themselves; 3) The document showing litigation settlement or abandonment of
action; 4) Papers of civil judgment except for divorce decree (Wang, 2014) .
4.
Conclusion
In
summary, civil litigation system is a system which is established for the
purpose of protection for the parties’ rights, so the service system, a part of
civil litigation system, shall give priority to the protection for the parties’
rights. To be actually beneficial for the public, the existing judicial
resource shall be used to protect the litigation right of good faith parties
rather than being wasted on parties who attempt to evade legal responsibility,
so that case can be heard fairly and efficiently. Furthermore, we shall realize
that it is impossible to achieve efficient service merely depending on courts,
and the service system can not be established without the involvement and
support of the whole society. Only if everyone is involved in the establishment
of legal system, the law can efficiently work as the guarantee of social
justice.
References
Jiang Fuxiao, Cui Xingyan 姜福晓, 崔兴岩
(2013). Minshi Songda Zhidu de Xianzhuang yu Lujing Xuanze民事送达制度的现状与路径选择
[Current Situation and Path Selection of Civil Service System]. Shanxi Sheng
Zhengfa Guanli Ganbu Xuyuan Xuebao, 26, 155-157.
Qi
Shujie 齐树洁
(2008). Minshi Chengxu Fa (Di 7 ban) 民事程序法 (第七版)
[The Law of Civil Procedure (Edition VII]. Xiamen: Xiamen Daxue Chubanshe.
Wang
Fuhua 王福华
(2003). Minshi Songda Zhidu Zhengdanghua Yuanli 民事送达制度正当化原理 [Principles of
Legalisation of Civil Service System]. Fashang Yanjiu, 47, 95-104.
Wang
Wanglai 王望来
(2014). Minshi Songda Zhidu Xianzhuang ji Duice 民事送达制度现状及对策
[Current Situation and Countermeasure of Civil Service System]. Chongqing
Jiaotong Daxue Xuebao, 14, 42-45.
Xu
Xin 徐昕
(2002). Yingguo Minshi Susong yu Minshi Sifa Gaige 英国民事诉讼与民事司法改革
[Reform of British Civil Action and Civil Judicature]. Beijing: Zhongguo Zhegfa
Daxue Chubanshe.
Zhang
Yan 张燕
(2013). Minshi Songda Zhidu Ruogan Wenti Tantao 民事送达制度若干问题探讨
[Discussion on Several Issues of Civil Service System]. Henan Caijing Zhengfa
Daxue Xuebao, 28, 125-134.
Zhao
Zejun 赵泽君 (2008). Shilun
Minshi Susong Dangshiren Songda Zhidu zhi Jiangou 试论民事诉讼当事人送达制度之建构 [Discussion on the Building of
Civil Litigant Service System]. Kunming Daxue Xuebao, 8, 77-81.
Zong
Ling 宗玲 (2007). Lun
Woguo Minshi Songda Zhidu de Wanshan 论我国民事送达制度的完善
[Discussion on the Improvement of China’s Civil Litigation System]. Faxue
Zazhi, 28, 124-126.
Publication Details
Chinese Studies by Scientific Publishers ISSN Print: 2168-5428/ ISSN Online: 2168-541X/ Pub. Date: April 17, 2015
This work has been licensed by original publisher under Creative Commons 4.0 International