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II.A.4. The Supervision over Centralized jurisdiction
In consideration of the facts that foreign-related civil and commercial cases are highly technical, the application of law in this case is rather complicated, and the structural establishment of Chinese courts for the adjudication of foreign-related civil and commercial cases can not fully meet the requirement to this effect, the Notice puts the retrial and complaint of foreign-related civil and commercial cases that should be adjudicated for the final instance by courts at a designated level under the jurisdiction of the adjudication supervision division of the courts.
Besides, it puts the retrial and complaint of such cases, through which courts at higher levels exercise adjudication supervision over courts at lower levels, under the jurisdiction of the trial division specializing in adjudicating foreign-related civil and commercial cases. By this way, courts at higher and lower level can adjudicate foreign-related civil and commercial cases coordinately, which is beneficial to strengthen specialized management and strengthen the supervision and guidance of adjudication.
Therefore, where a court at a higher level orders a court at a lower level to retry a foreign-related civil or commercial case or sends a message to a court at a lower level requiring the review of such a case, the case should be processed by the trial division responsible for the first-instance and the second-instance trial of foreign-related civil and commercial cases.
However, this provision of supervision in the judicial interpretations is rare in recent years. This also means that it is hard to reform on jurisdiction over foreign-related civil and commercial cases in some degree.
II.A.5. The Law Basis of the Rules
On the grade jurisdiction of court in China, Article 18 of Civil Procedural Law stipulates that the basic-level people’s court has jurisdiction over the first trial of civil case, but it eliminates that this law has the stipulation in addition being an exception. In other words, the first trial of the civil case which is internal or international generally governed by the basic-level people’s court only if the law has the stipulation in addition.
The Rules explicitly points out the law basis of it is article 19 of the Civil Procedural Law, which stipulates that the intermediate people’s court has jurisdiction over the following first trial of civil case: (1) the significant foreign-related case; (2) the case having significant influence in this area of jurisdiction; (3) the case governed by the intermediate people’s court which is determined by the Supreme People’s Court. In other words, any intermediate people’s court has jurisdiction over “the significant foreign-related case”.
According to the article 1 of the Supreme People’s Court’s Opinions of Certain Questions about Application of the Civil procedural Law of the People’s Republic of China (hereinafter referred to as “Opinions”), so-called “the significant foreign-related case” refers to the dispute which the volume of money is big, the case is complex, or the litigants who live in the overseas are multitudinous. Therefore, other foreign-related cases should be governed by the basic-level people’s court generally besides “the significant foreign-related case” which belongs to the judicial interpretation of the Supreme People’s Court.
From above Rules, however, besides minor basic-level people’s courts (e.g., the ETDA courts) and the specific intermediate people’s courts are authorized to excise the jurisdiction over foreign-related case, any other basic-level people’s courts and common intermediate people’s court have been deprived this kind of jurisdiction at all.
Whether is this stipulation of the Rules valid? As for as the legal effect, the Civil Procedural Law is the basic law whose statue should be above other civil procedural laws and regulations, the latter don’t contradict with it, none of the Rules as a judicial interpretation.
In fact, the method of the Rules has made the adjustment on the grade jurisdiction stipulated by the Civil Procedural law. Moreover, as for as relationship between the Rules and the Opinions, as the same Supreme People’s Court’s judicial interpretation, both of them should have the same legal effect, then could not cancel effective still related stipulation of judicial interpretation by the way of new judicial interpretation. Therefore, the law basis of the Rules is some doubtful.
II.B. Interpretation on Service of Judicial Documents on Overseas Companies
On June 11, 2002, the 1225th Meeting of the Judicial Committee of the Supreme People’s Court deliberated and adopted the Reply of the Supreme People’s Court to Questions on Whether Service of Judicial Documents on Overseas Companies Can Be Made to Their Representative Offices in China and by Leaving the Documents in Such Offices [hereinafter referred to as the “Reply”], effective as of June 21, 2002.
This judicial interpretation may alleviate the difficulty that the people’s courts encountered in their overseas service of judicial documents and further standard the people’s courts’ conduct of overseas service of judicial documents. The following is an introduction to the relevant issues on this judicial interpretation.
II.B.1. Background and Content of the Reply
In recent years, overseas service of judicial documents has always been the bottleneck of the hearing of foreign-related cases in people’s courts. Trials of a number of cases are unopened for the failure or delay of service, which has affected the people’s courts to exercise the adjudicative right and timely protect the legitimate rights and interests of the parties. With China’s continuous exchanges with the outside world, especially after China’s accession to the WTO, the people’s courts are attaching more and more importance to the foreign-related trial work. It is of particular importance to address issues on the difficulty in service and legality of service in accordance with the provisions of relevant international conventions and Chinese laws.
The Beijing No.2 Intermediate People’s Court recently took some cases where Japanese Mitsubishi Motors was sued for damages. In the service of the complaints and summons on the Beijing Office of Mitsubishi Motors, i.e. its representative office, the Beijing Office refused to accept it, and thus these documents were left in the office to complete the service. The Beijing Office objected to this service, contending that according to Article 238 of the Civil Procedural Law of the People’s Republic of China (the “Civil Procedural Law”) on the priority of international treaties overseas company that does not have residence in China should be subject to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters (the “Hague Service Convention”) in priority and not to Article 247 of the Civil Procedural Law on service on representative offices in China, and that overseas service should not be made by leaving the documents in the office. As to the objection, the Beijing Higher People’s Court asked the Supreme People’s Court for instruction, i.e. whether service of judicial documents on overseas companies that do not have residences in China could be made to their representative offices in China and by leaving the documents in such offices.
The Supreme People’s Court then made the Reply below, which was deliberated and adopted by its Judicial Committee:
Article 1 of the Hague Service Convention provides that: “The present Convention shall be applied to all cases, civil or commercial matters, where there is occasion to transmit a judicial or extra-judicial document for service abroad.”
Pursuant to the provisions of Article 247 of the Civil Procedural Law of the People’s Republic of China (the “Civil Procedural Law”), the people’s courts may serve process on parties who haven’t residences in the People’s Republic of China according to the manners prescribed by the international treaty concluded or jointly contracted by the country of the parties and the People’s Republic of China; and the “occasion to transmit a judicial or extra-judicial document for service abroad” provided for in the Hague Service Convention should not be applied, where the parties have representative offices in the People’s Republic of China. Therefore, the people’s courts may service judicial documents on the parties’ representative offices formed in the territory of the People’s Republic of China, pursuant to Article 247(5) of the Civil Procedural Law, and not subject to the Hague Service Convention.
Pursuant to the provisions of Article 237 of the Civil Procedural Law, the people’s courts may serve judicial documents on the representative offices of overseas companies by leaving the documents in the offices.
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