This article will provide guidance on how the central authority works in the people’s Republic of China. The People’s Republic of China is a unified Marxist-Leninist state, and the People’s Congresses implement the CCP’s programs. Based on unified state authority, this arrangement makes the National People’s Congress of the People’s Republic of China (the NPC) ‘the highest state organ of power.’ From the Supreme People’s Court to the President of the People’s Republic of China, all state institutions are elected by the NPC, accountable to the CCP, and have no powers other than those granted by the NPC. Click here for a video on International Process Service.
The Hague Service Convention applies to all serving process in China, regardless of the court in the United States that is hearing the case. Geography is an important consideration, and service needs to be done at a highly stringent level. For example, the Central Authority will deny a request if translated papers are not submitted per China’s statement to Article 5(3). Further, the papers need to be written in simplified written Chinese. Involving the abilities of a private process service agency like Undisputed Legal can thus be helpful. Our process servers are local to the area and can help with procedures that can otherwise trip the flow of serving papers. We make sure that your papers are compliant, especially with the strict structure that the service of papers in the People’s Republic of China can entail. Click Here for Frequently Asked Questions About Process Servers!
Highest Authority in the People’s Republic of China
The State Council, the Central People’s Government, includes the premier, 26 ministers and other cabinet department heads, an unknown number of vice premiers, five state councilors (vice premiers with smaller portfolios), the secretary-general, and others. Its ministries and agencies have duties. After CCP Politburo Standing Committee approval, the State Council sends most initiatives to the NPCSC.
Political bodies in China perform judicial and prosecutorial duties. The Chinese political system limits judicial independence. Chinese justice is overseen by the Supreme People’s Court (SPC), a branch of the NPC. SPP controls county, prefecture, and provincial procuracies and prosecutions. Since 2018, the National Supervisory Commission (NSC) has investigated CCP and state institution corruption. It shares administrative standing with the SPC and SPP. CCP’s Central Committee for Political and Legal Affairs controls all courts and personnel.
As the highest administrative body of the People’s Republic of China, the State Council (also known as the Central People’s Government) serves as the executive branch of the country’s highest legislative body. The State Council reports to the Premier, responsible for its general operation. The ministers are ultimately responsible for the commissions’ and ministries’ output.
In line with the Constitution and other laws, establish administrative rules, the State Council makes judgments and issues orders. Additionally, a significant role of the State Council is to draft recommendations for consideration by the National People’s Congress or its Standing Committee. This means that the Council will establish the roles and duties of the State Council’s ministries and commissions, provide cohesive leadership for their operations, and oversee any other national administrative tasks that do not pertain to those entities.
The role of the State Council centers around coordinating the efforts of state administrative bodies at the national, regional, and municipal levels and establishing the precise allocation of responsibilities and authority between the federal government and the state agencies of the states, regions, and municipalities that report directly to it. The Council will design and carry out the State’s budget and strategy for economic and social growth on a national scale, as well as oversee and guide the development of urban and rural areas as well as economic matters. It plays a significant role in negotiating and executing international accords, treaties;
The ministers in charge of the State Council’s ministries and commissions oversee their departments’ operations and regularly hold ministerial meetings or commission general and executive meetings to address and resolve important matters pertaining to their departments’ work. Our Undisputed Legal process servers are aware of the requirements of the State Council. However, as the central authority, the Ministry of Justice is the one clients must address for appropriate service. If you found this article helpful, kindly consider leaving us a review. Click the link to share your feedback, and we would greatly appreciate a five-star review.
Ministry of Justice in the People’s Republic of China
The International Legal Cooperation Centre (ILCC) is part of the Ministry of Justice of China and is the Central Authority for the Hague Service Convention in the PRC. However, forwarding authorities are more numerous in the People’s Republic of China. The Ministry of Justice and the High People’s Courts of Beijing, Shanghai, Jiangsu, Zhejiang, Guangdong, Fujian, Jiangxi, Shandong, Guangxi, and Hainan are all forwarding authorities under the Hague Service Convention.
Typically, service is enacted under Article 5(1)(a) of the Hague Service Convention for formal service. The document is typically referred to the relevant court by the Central Authority of China. Anyone eligible to receive the document, or the addressee, will receive direct service from the court. The Civil Procedure Law allows for the use of other procedures where direct delivery is not feasible. The recipient has the right to reject it, notwithstanding, and Chinese internal law does not provide for such a procedure.
So long as it does not violate Chinese internal law, the competent court may carry out the service. Unless there are specific provisions to the contrary in the treaties between China and other Contracting States of the Hague Convention, all documents and evidence that are to be served must be written in Chinese or have an attached translation in Chinese, as stated in the Civil Procedure Law of the People’s Republic of China, in order to comply with the request for service under Art. 5(1) of the Convention. It is important for service from the United States to utilize the USM-94 form, enclosed with USD95. To the Central Authority. It is important to ensure a court official or an attorney signs it. At Undisputed Legal, we are cautious to verify that the form is thorough and to the point, identifying whether the court duly authorized the individual signing.
The Hague Service Convention allows the Chinese provinces’ highest courts to bypass lower courts when requesting service from foreign central authorities: Beijing, Shanghai, Jiangsu, Zhejiang, Guangdong, Fujian, Jiangxi, Shandong, Guangxi, and Hainan.
process Service of summons in the People’s Republic.
The court papers will be served once the adjudicatory individuals have been determined. In China, the court handles the serving of court papers, with the party’s aid as required. Personal service, postal service, and similar methods are all within the purview of Chinese courts for serving legal papers. The majority of Chinese courts favor serving documents by mail. Electronic service, however, is currently in flux with Chinese courts in an effort to increase service efficiency. The court may also use publication to serve court papers if the abovementioned methods are not feasible.
Chinese courts are experiencing ‘difficulty in effecting service of court documents’ to a certain degree as a result of the rapid and extensive mobility of the country’s population and the deliberate avoidance of serving court documents. This, in turn, disrupts the efficiency of litigation. Chinese courts have implemented many reforms to address this issue, greatly enhancing the effectiveness of service. The defendant’s designated persons or organization in China may be served court papers by the Chinese court if the defendant is an international party without a residence in China.
When it comes to serving court papers in China, publishing is still the very last option To that end, Chinese courts have laid up a transparent procedure for cooperating with foreign courts that serve legal papers. Some leeway in applying either the Hague Service Convention or bilateral treaties may be available in the event that China and other Hague Service Convention contracting parties enter into such agreements. At Undisputed Legal, we ensure that your papers comply with the service requirements in all jurisdictions of the PRC.
Standard Procedures for Notifying Parties in China of Legal Process
Legal papers may be served either by the person to be served or by their attorney, an adult relative residing with them, or by a designated agent for acceptance of service. Court papers may be served on an organization’s mailroom clerk, legal representative, or person in charge if the entity is an organization. When personal service is required, the court is the customary venue for serving the recipient or their appointed agent.
If the person who is supposed to be served refuses to accept the court documents, the court staff can either leave them at their residence or document the situation. Alternatively, they can ask others, usually representatives from the neighborhood committee or the person’s employer, to witness and sign to confirm the situation. If the court uses a nationally recognized postal service to serve court papers, the person to be served or those authorized to accept personal service must sign for the documents to be considered served. Using the Internet, the court and the parties may check the mail’s delivery progress.
Due to staffing constraints, Chinese courts have significant challenges when it comes to personal service and the widespread habit of leaving rejected court papers at the domicile. Consequently, the majority of Chinese courts favor service via letter. Since this is a judicial action, the accuracy of the parties’ postal addresses is important. This is why, in most cases, the Chinese court will ask the plaintiff to fill out a service address confirmation form and disclose the defendant’s known address when the case is first filed. The Chinese court will also ask the defendant to fill out a confirmation form for their service address right away when they are contacted. Court papers may be served via publishing if the addressee’s whereabouts are unknown or if other means of service are unsuccessful. The service is considered to have been implemented thirty days after the publication.
In most cases, the kind and urgency of the publication will determine the costs associated with service via publishing through the People’s Court Daily. The plaintiff is often required to pay RMB 260 to cover the costs of publishing the statement of claim and summons. The service address will be determined based on the registered domicile or registered habitual residence for individuals and the legally registered/filed domicile for organizations if none of the above-mentioned methods are successful.
If an international individual sets up a business in China with 100% foreign ownership or acts as a director or legal representative for a Chinese company, the Chinese court may serve the paperwork on the company, which will subsequently send it on to the foreign individual. A foreign national’s adult family members residing in China may also be served legal papers by the Chinese court. The only way for service to be considered complete when using such methods is for the recipient to confirm receipt.
process Services Performed in Compliance with International Treaties and the Hague Service Convention
The Chinese court will serve court papers in compliance with any treaties or conventions that the state of the recipient has signed on the serving of court documents. Chinese courts rely heavily on the Hague Service Convention when deciding how to carry out service overseas.
Chinese courts often submit court papers to the Central Authority of the state addressed for service overseas according to the Hague Service Convention. Particularly, if a court overseas requests service, it must notify the court immediately above it. The SPC will receive a level-by-level report on the service request from the subsequent higher-level court. After the same, the SPC will send the service request to the Ministry of Justice. Following the same, the service needs to be arranged by the Central Authority of the state to whom the Ministry of Justice will forward the service request. It should be mentioned that the service requests of lower courts and those of their respective municipalities can be sent directly to the Central Authority of the state without going through the SPC or the Ministry of Justice. This is in contrast to the situation in Guangdong, Jiangsu, Zhejiang, and Beijing.
Once the Chinese court has submitted the court documents to be served to the provincial high court for examination, they can be sent to the Ministry of Foreign Affairs’ Department of Consular Affairs. From there, the paperwork will be forwarded to the diplomatic department of the other state, which will then arrange for service, provided that there are no relevant treaties between the two states.
Courts in China may send legal papers to them within the bounds set by the recipient’s home country’s laws. In light of the lengthy procedure involved in cross-border mailing, Chinese law states that if proof of service (such as a signed service acknowledgment or a receipt record from the postal agency) is not available three months after mailing, the effectiveness of the service may be determined by Chinese courts based on other factors, such as the submission of response documents by the person to be served. The service will not be processed by mail if it is returned with the reasons ‘Recipient Not Found’ or ‘Invalid Address’ or equivalent.
Only the Ministry of Justice may accept requests for serving of court documents from overseas. Any international postal service attempts are refused and illegitimate. The Chinese Civil Procedure Law requires local courts to undertake the service procedure. Involving a private process service agency like Undisputed Legal can help ensure that your papers comply with these courts’ service procedures. Our servers are local to the jurisdiction, and we can ensure that your papers are served quickly and effectively.
Power of attorney in PRC
An international business owner based in China may delegate authority to a local agent to handle day-to-day operations while the owner is away. The chosen individual may be granted one or more jobs under a power of attorney, depending on the specifics of the case.
The legality of a power of attorney depends on its being signed before a public notary and then sent to the Chinese Department of Foreign Affairs and Trade for approval. After that, send the documents to the Chinese embassy to verify them. The public notary is required by law to confirm the identity of the person obtaining the power of attorney while they are located outside of China. The Chinese Department of Foreign Affairs and Trade authenticates notarized power of attorney documents.
Three main types of power of attorney are limited, wide, and temporary. The duration and nature of the power of attorney are determined by the need. While a temporary POA is only good for a certain amount of time, a limited POA is applicable to certain operations. A general power of attorney is necessary for most tasks and endeavors. In the event of the grantor’s incapacity or death, a POA may become ineffective. The grantor’s healthcare decisions may be made by another party with the power of attorney on their behalf. Healthcare powers can only be decided by the grantor.
The Chinese Embassy or Consulate must verify US-prepared papers, such as Powers of Attorney, before they may be sent to China. Regularly, a signed Authenticated Power of Attorney remains valid for a period of six months. The Secretary of State should validate the Power of Attorney Statement that has been notarized.
Parties need not worry about getting their document validated by the Chinese consulate or embassy anymore after China’s accession to the Apostille Convention. Document validation will be made easier, costs will be reduced, and personal concerns, business agreements, and cross-border legal transactions in China will be processed faster with this streamlined method. The impact of this change is far-reaching. International commercial and legal interactions should be made easier. Plaintiffs outside China, especially those with intellectual property rights, will not be required to obtain legal authorization to sue in administrative proceedings challenging decisions made by the China National Intellectual Property Administration.
The Chinese Embassy in Washington, DC, may authenticate documents issued by appropriate U.S. agencies intended for use in China. The deeds or papers require prior certification by the United States Department of State. For usage in China, papers issued by appropriate US authorities, such as notarial deeds, may be authenticated by the Chinese Consulate-Generals in the US. Prior to being certified, the deeds or papers must be approved by the Secretary of State’s (or the Lieutenant Governor’s) Authentication Office. Our Undisputed Legal process servers are exceedingly adept at service both within the United States and globally. We can ensure that your papers are authenticated and adhere to the requirements of the Chinese authorities.
Notarisation of documents in the People’s Republic of China
Getting a local notary public to attest to the document is important. The Secretary of State (or Lieutenant Governor) in the jurisdiction where the document is performed must further authenticate the service, and the certification of the document by the County Clerk is a prerequisite in certain states.
Applicants are required to submit an application for authentication to the Chinese Consulate-General in the jurisdiction where the certified document is held.
A photocopy of the applicant’s valid passport or ID is required if the application is filed by the applicant themselves. If the business licenses need legalization, a photocopy of the representative’s identification papers (such as a passport or driver’s license) and a copy of the license or passport are required.
A document containing two or more pages must be bound properly and securely, with sealing wax or paging seal/embossed seal, to ensure the integrity of the document. The Embassy or Consulate-General will not authenticate a document if it is found illegitimate or in any way forged, counterfeited, fraudulent, or altered. Single-status affidavits or certificates intended for marriage registration in China are only valid for six months from the date of issuance. The local postal departments or courier companies provide postal services. At Undisputed Legal, we are highly adept at conducting service by mail across the globe.
Once the applicant submits the application to the Consulate-General by mail, it defaults that they are aware of and willing to bear all the consequences, responsibilities, and risks, such as loss and damages of documents and passports, that may occur in the mailing process. It is preferable to involve a private process service agency like Undisputed Legal to address these concerns. We understand that the service of papers can be a complex task, regardless of jurisdiction. That’s why we undertake the task of making it as easy as possible for our clients. With our years of experience, we can help ensure that serving your papers is a breeze, even if you are halfway across the world. Get in touch with us at Undisputed Legal so that your papers are delivered effectively and efficiently without hassle.
Documents can be faxed to (800)-296-0115, emailed to firstname.lastname@example.org, mailed to 590 Madison Avenue, 21 Floor, New York, New York 10022, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.
Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; All documents are received by our receptionist.
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FOR ASSISTANCE SERVING LEGAL PAPERS IN CHINA PEOPLE’S REPUBLIC
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