Nature of a Fee of Not Less than 1,000 Yuan for Service of Legal Documents through a Diplomatic Channel

 2018-07-21  12



  • Document NumberNo. 15 [2005] of the Civil Division IV of the Supreme People's Court
  • Area of Law Foreign Affairs
  • Level of Authority Documents of Judicial Interpretation Nature
  • Date issued06-06-2005
  • Effective Date06-06-2005
  • Status Effective
  • Issuing Authority Supreme People's Court



Reply of the Supreme People's Court to the Request for Instructions on How to Determine the Nature of a Fee of Not Less than 1,000 Yuan for Service of Legal Documents through a Diplomatic Channel in a Foreign-Related Commercial or Maritime Case
(No. 15 [2005] of the Civil Division IV of the Supreme People's Court on June 6, 2005)
Shanghai High People's Court:
Your Request for Instructions on How to Determine the Nature of a Fee of Not Less than 1,000 Yuan for Service of Legal Documents through a Diplomatic Channel in a Foreign-Related Commercial or Maritime Case (No. 61 [2005], HPC, Shanghai) has been received. Upon deliberation, the following reply is hereby made:
The issue for which you have requested instructions is actually how to list a fee of not less than 1,000 yuan for service through a diplomatic channel as expenditures, in other words, whether such service fee shall be listed as expenditures under “case acceptance fees,” or paid by the relevant party to the entrusting court separately as “other litigation costs.” Neither the Measures for the People's Courts' Litigation Charges nor the Supplementary Provisions thereof clearly provide that a people's court may charge the party for service of legal documents through a diplomatic channel. Therefore, you shall no longer charge a party separately for service of legal documents through a diplomatic channel in a foreign-related case. You shall decide at your own discretion as to how to specifically list the expenditures.

Annex:
Request of the Shanghai High People's Court for Instructions on How to Determine the Nature of a Fee of Not Less than 1,000 Yuan for Service of Legal Documents through a Diplomatic Channel in a Foreign-Related Commercial or Maritime Case
No. 61 [2005] of the Shanghai High People's Court on March 10, 2005
Supreme People's Court:
In recent years, the need for serving legal documents on parties overseas through diplomatic channels has been increasing in the trial of foreign-related commercial and maritime cases, and the amount of service fees involved is relatively large. In accordance with the relevant provisions of the Notice of the Supreme People's Court, the Ministry of Foreign Affairs and the Ministry of Justice on Several Issues concerning Chinese and Foreign Courts' Mutual Entrustment for Service of Legal Documents through Diplomatic Channels and the Notice of the Supreme People's Court, the Ministry of Foreign Affairs and the Ministry of Justice on the Measures for Collection and Payment of Fees in Chinese and Foreign Courts' Mutual Entrustment for Service of Legal Documents, Investigation and Taking of Evidence through Diplomatic Channels (hereinafter referred to as the “Measures for Collection and Payment”), when a Chinese court entrusts a foreign court with service of legal documents through a diplomatic channel, if it costs the equivalent of not more than 100 yuan or the equivalent of more than 100 yuan but less than 1,000 yuan each time, the fee shall be respectively paid or collected by the relevant authority. If it costs more than 1,000 yuan but less than 3,000 yuan each time, the entrusting court shall indicate that it agrees to pay the fee in its letter of entrustment to the Consular Department of the Ministry of Foreign Affairs. If it costs more than 3,000 yuan, the entrusting court shall indicate that it agrees to pay the fee in its letter of entrustment to the Consular Department of the Ministry of Foreign Affairs, and the Consular Department of the Ministry of Foreign Affairs shall deliberate and handle the matter jointly with the Foreign Affairs Bureau of the Supreme People's Court. However, it is not clear whether the entrusting court is required to pay a service fee in excess of such amount. In addition, the Measures for Collection and Payment provide that a people's court shall charge a party for service of legal documents in accordance with the relevant provisions of the state. Chinese law and judicial interpretations do not clearly provide for the nature of a fee of not less than 1,000 yuan for service of legal documents through a diplomatic channel, and different opinions arise in judicial practice. According to one opinion, based on its nature, a fee for service of legal documents through a diplomatic channel constitutes the people's court's case acceptance fee. The Measures for the People's Courts' Litigation Charges developed by the Supreme People's Court does not separately provide for collection of service fees, and in a domestic case, no additional fee shall be charged for service after the case acceptance fee is paid. Therefore, no fee shall be charged separately for service of legal documents through a diplomatic channel in a foreign-related case. According to the other opinion, pursuant to the provisions and spirit of paragraph 1 of Article 2 and Article 12 of the Measures for the People's Courts' Litigation Charges, the fee for service of legal documents through a diplomatic channel falls within the scope of other litigation costs, and the actual service fee shall be charged separately in accordance with the special means of service such as service through announcement or judicial assistance. Therefore, such service fee shall not be included in the schedule of case acceptance fees, and shall be paid by the party to the entrusting court separately instead.
We are leaning toward the second opinion.
Please reply as to whether the above opinion is appropriate.