2. Provisions about serving the interested parties without domicile in PRC, collecting evidence
According to Article 283 of the new Civil Procedure Law, the PRC Court can use the following methods to serve the litigation documents to the interested parties who do not have domicile within PRC:
- In accordance with the methods stipulated in an international treaty concluded or jointly acceded to by the country where the addressee is located and PRC;
- Through diplomatic channels;
- Through the Chinese embassy or consulate in the country where the recipient is located for a recipient who is with the Chinese nationality;
- Through the litigation agent entrusted by the recipient in this case;
- Through the recipient’s wholly-owned enterprise, representative office, or branch established within the territory of PRC, or a business agent authorized to accept service;
- In the event that the recipient is a foreigner or stateless person, who also hold of the post of the legal representative or principal person in charge of a legal entity or other organization established within the territory of PRC, and is a joint defendant with such legal entity or organization, the legal documents shall be served to the aforesaid legal entity or organization;
- In the event that the recipient is a foreign legal entity or other organization, and their legal representative or principal person in charge stays within the territory of PRC, the legal documents shall be served to such legal representative or principal person in charge;
- The litigation documents may be served by mail, provided that the laws of the country where the recipient is located allow serving the litigation documents through the mail (if three months have passed since the date that the aforesaid litigation documents were mailed, and the serving receipt has not been returned but various circumstances are sufficient to determine that such documents have been served, these the litigation documents shall be deemed to have been successfully served on the expiration date of the three-month period); and
- Electronic way may be adopted by which the litigation documents can be deemed to serve to the recipient successfully, unless the electronic way is prohibited by the laws of the country where the recipient is located.
- Service shall be made by other way agreed upon by the recipient, except as prohibited by the laws of the country where the recipient is located.
If the litigation documents could not be served by the above methods, they shall be served by public announcement, which shall be deemed to have been served successfully after 60 days.
Subject to the explanation of the Civil Law Office of the Standing Committee of the PRC National People’s Congress, Article 283 as the above shall have solved the practical difficulties in serving litigation documents in foreign-related cases from following aspects:
- The previous restriction “for receiving on behalf of the recipient has been deleted so that the litigation proxy of the recipient does not need to be explicitly entrusted for receiving litigation documents.
- The additional legal form of a wholly-owned enterprise established by the recipient in the PRC will expand the servable group because a wholly-owned enterprise, which also means that if the recipient has established a joint venture in the PRC, service cannot be made on such joint venture.
- In the event that a foreigner or stateless person holds of the post of the legal representative or a principal person in charge of a legal entity or other organization within PRC, as long as such legal entity or other organization are the joint defendant, the legal entity or other organization may be served under this condition.
- In addition, litigation documents now would be able to be served on their legal representatives or principal person in charge stayed within PRC in case the recipients are the legal entities or other organizations.
- It would be possible to serve the legal documents by other way agreed upon by the recipient.
Article 284 of the new Civil Procedure Law states that in the event that the evidence that the parties apply to the PRC Court for investigation and collection is located outside the territory of PRC, and the PRC Court may investigate and collect it in accordance with the methods stipulated in international treaties concluded or jointly participated in by the country where the evidence is located and PRC, or through diplomatic channels.
In cases where the laws of the country where the evidence is located do not prohibit it, the PRC Court may investigate and collect the evidence via the following methods:
- For the interested parties and witnesses with the PRC nationality, they may entrust the embassy or consulate of the People’s Republic of China stationed in the country where the interested parties and witnesses are located to collect such evidence on their behalf;
- Collecting evidence through instant messenger with the consent of both parties;
- Collecting evidence in other ways agreed upon by both parties.