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Service of Divorce Court Papers to China Parties

27 August 2012 By In Family and Divorce

China divorce lawyer

China lawyer at the Law Office of Peter Zhu  received an inquiry recently from a foreing national intending to pursue a China related divorce. Here is her question:

My husband is US citizen and resides in China. I live in California. We've agreed to divorce and separated since he moved to China in 2009. No legal separation process is done and no divorce petition has been filed in court. We only have email agreement and he said he would file the divorce but he didn't do it. He was not quite responsive for my contact to finalize the divorce paperwork. Now I want to file the divorce in California and serve the divorce paper to him in China. How shall I do that?

International Service of Process in China under the Hague Service Convention

The People’s Republic of China (“the PRC”) acceded to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, also called the Hague Service Convention, on May 6, 1991, and its provisions entered into force on January 1, 1992.

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US attorneys seeking service in China would be wise to familiarize themselves with the mandatory character of the Convention as set forth in Volkswagenwerk A.G. v. Schlunk, 486 U.S. 694 (1988).

The Hague channels for Service

The Hague Service Convention offers plaintiffs a number of channels by which service may be accomplished in the foreign country.  All of these channels constitute proper “Hague Service” under US law, although there are advantages and disadvantages to each in terms of cost, speed and enforceability.

The most commonly used channels for service under the Hague Service Convention are:
•service through a Central Authority in the foreign country (Article 5)
•service through an alternative channel (diplomat, mail, judicial officer) in the foreign country, provided that the  country does not formally object (Articles 8, 9 and 10).

For further information about all of the Hague channels of transmission provided by the Service Convention see below.

Service through the Central Authority

The Hague Service Convention provides that service may always be effected through the judicial system of the destination country.  This is accomplished by filing a request with the Central Authority designated by that country (as described in Article 5 of the Convention), and requesting either formal also called compulsory service or informal also called voluntary service.

Hague Forms

The Hague Service Convention provides that a set of three model forms (“Request,” “Certificate,” “Summary of the Document to be Served,”) and one recommended form (“Notice”) must accompany the documents to be served.  These forms are designed to summarize the key contents of the court documents and guide the defendant to the appropriate action.

Central Authority

The Central Authority for the PRC is:

The Ministry of Justice
 Department of Judicial Assistance and Foreign Affairs
 Division of Judicial Assistance
 10, Chaoyangmen Nandajie
 Chaoyang District
 Beijing 100020
 People’s Republic of China

Legal Authority for Service. Service through the Chinese Central Authority is authorized by Article 247 of the Civil Procedure Law of the PRC.

Methods of Service.

Chinese law provides for several types of service:
•Personal service by a court bailiff  (“direct service”) (commonly employed by the Central Authority)
•Service by mail
•Service by mandate
•If defendant refuses service, by service by insertion into a mailbox at defendant’s place of residence
•Informal notice  (voluntary acceptance of service)
•Some forms of substituted service
•Service by publication (not generally employed by the Central Authority)

At present, service of foreign pleadings by fax or e-mail is not valid in the PRC.

Caveat: Certain types of substituted service and mailbox service which are routinely effected under Chinese law may be deemed insufficient under US law.

Who effects service?  A court bailiff, a clerk of the court or a postman (depending upon the method of service employed).

Service through the alternative channels

The PRC has filed the following declarations with respect to the alternative channels of Hague service:

Articles 8 and 9:

With regard to direct service upon nationals of the requesting state or direct service (without compulsion) upon nationals of the destination state via diplomatic or consular agent:

China objects to service in its territory by foreign diplomats upon Chinese nationals. (Pursuant to the Convention, China cannot object to service by foreign diplomats upon nationals of the diplomat’s own state.)

Caveat: US litigants should be aware that US diplomats will generally not serve process abroad and this channel is rarely employed in US civil actions.   (For further information, see US Consular Regulations).

Article 10(a):

With regard to direct service by postal channel:

China objects to service by postal channel.

Caveat: US plaintiffs may not have recourse to direct mail service upon defendants in the PRC. Moreover, even where permitted, mail service pursuant to the Hague Service Convention is fraught with problems, including potential problems with later enforcement of US judgments in the destination state—even when the destination state has not objected to such service.  US courts are also split regarding propriety of mail service under the Convention.  US plaintiffs are advised to proceed with caution when employing this channel.  (For further information, see Service by Mail.)

Articles 10(b) and (c):

With regard to direct service by a judicial officer, official or other competent person of the destination state:

China objects to service by judicial officer.

Caveat: US plaintiffs may not have recourse to direct service by judicial officer upon defendants in the PRC.

Furthermore, note that “judicial officer,” “official” or “competent person” are terms defined under the laws of the destination state, not under the laws of the requesting state.  Chinese attorneys, detectives, policemen or private persons are not judicial officers and are not empowered to serve process. Private process service is unknown.  (For further information, see Service by Judicial Officers.)

Translation Requirements under Chinese law

The PRC requires a translation into Chinese of all documents to be formally served (that is, served using compulsion) pursuant to Article 5, subparagraph 1 or Article 10(b) and (c).

Note that while Mandarin Chinese is the official spoken dialect of the PRC, the appropriate written language for legal pleadings to be served in Mainland China is Simplified Chinese .

Article 7 of the Hague Service Convention provides that the Hague model forms should be completed in English or in French or may be completed in the language of the destination country.

The PRC does not require translation into Chinese for service effected pursuant to Article 5, subparagraph 2 (voluntary service) or Article 10(a) (mail service); however, note that US notions of due process will always require that the defendant understand the documents with which he or she is being served.  US due process is a constitutional right under US law and as such, trumps the requirements of the Convention and foreign law.

Service of US Subpoenas in China

US subpoenas are not routinely served upon foreign witnesses pursuant to the Hague Service Convention.

Residents or citizens of the United States located abroad however must be responsive to US subpoenas served upon them. For further information on the issues involved, contact us by phone  or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation.

On the other hand, any national who is not a resident or citizen of the United States is not required to respond to a US subpoena delivered to him or her in the PRC.  In essence, such a subpoena loses its coercive effect once it leaves US borders.  Because it is no longer a coercive instrument, and because the witness is not subject to the jurisdiction of the issuing court, the question of “how to properly serve” a subpoena is irrelevant.

China Litigation Lawyers at the Law Office of Peter Zhu can offer you extensive advice on securing such evidence pursuant to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, the Hague Evidence Convention and foreign law.  Note that the state of judicial assistance in China is evolving over time.  Please contact our lawyer for advice on the latest developments.

China Litigation Lawyer at the Law Office of Peter Zhu can also assist you in arranging voluntary depositions of willing witnesses on foreign soil.  Although the Chinese government prohibits voluntary depositions in the PRC pursuant to Chapter II the Hague Evidence Convention, our lawyer has successfully moved Chinese deponents out of the PRC for depositions in Hong Kong and Singapore.  Our lawyer can also provide court reporters, videographers, interpreters and videoconferencing for private depositions and formal hearings.

Read 454 times Last modified on Sunday, 15 September 2013 05:02
Shenzhen Lawyer

A Shenzhen lawyer practicing in one of the best Shenzhen law firms handle commercial and family law matters across the country. Free preliminary legal consultation. Tel: +86 188 19019636. Email: peterzhulaw@hotmail.com

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