Provisions of the Supreme People's Court on Handling Cases of Mutual Judicial Assistance in Cross-Straits Service of Documents and Evidence Collection through Investigation by People's Courts

Fa Shi [2011] No. 15

June 14, 2011

The Provisions of the Supreme People's Court on Handling Cases of Mutual Judicial Assistance in Cross-Straits Service of Documents and Evidence Collection through Investigation by People's Courts, which were adopted at the 1506th meeting of the Judicial Committee of the Supreme People's Court on December 16, 2010, are hereby promulgated and shall come into effect as of June 25, 2011.

For the purpose of implementing the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits (hereinafter referred to as the Agreement), further pushing the development of cross-Straits mutual judicial assistance business, and ensuring the smooth implementation of mutual judicial assistance work of document service and evidence collection through investigation by people's courts that is referred to in the Agreement, these Provisions are formulated in light of the practice of people's courts at all levels in carrying out cross-Straits mutual judicial assistance work.

Chapter I General Provisions

Article 1 These Provisions shall apply when people's courts handle cross-Straits mutual judicial assistance business of document service and evidence collection through investigation in civil, criminal and administrative litigation cases.

Article 2 People's courts shall handle the cross-Straits mutual judicial assistance business within the scope of statutory functions and powers.
When handling the cross-Straits mutual judicial assistance business, people's courts shall follow the One-China principle, abide by basic principles of laws of the State, and shall not violate social public interests.

Chapter II Division of Responsibilities

Article 3 People's courts and the competent business department in Taiwan region shall establish a direct communication channel to handle the cross-Straits mutual judicial assistance business by designating their respective Agreement contact persons.

Article 4 The Supreme People's Court is the first-level window for contact with the competent business department in Taiwan region with respect to cross-Straits mutual judicial assistance business. The director of Taiwan Judicial Affairs Office under the Supreme People's Court is the agreement contact person designated by the Supreme People's Court.
The Supreme People's Court is in charge of: carrying out consultation, coordination and communication with the competent business department of Taiwan region with respect to work items in the Agreement involving people's courts; guiding, supervising, organizing, and coordinating the handling of cross-Straits mutual judicial assistance business by local people's courts at various levels; directly communicating with the competent business department of Taiwan region regarding mutual judicial assistance business of cross-Straits evidence collection through investigation and, when necessary, handling specific cases of mutual judicial assistance cases of evidence collection through investigation; informing the higher people's courts of the name, contact information of the agreement contact persons designated by the Supreme People's Court and the competent business department of Taiwan region, the change therein and other work information.

Article 5 The Supreme People's Court authorizes higher people's courts to establish the second-level contact windows with the competent business department of Taiwan region with respect to handling mutual judicial assistance cases of cross-Straits service of documents. A higher people's court shall designate a special person as the contact person of second-level contact window authorized by the Supreme People's Court.
A higher people's court is in charge of: guiding, supervising, organizing, and coordinating the handling of cross-Straits mutual judicial assistance business of document service and evidence collection through investigation by people's courts within its jurisdiction; directly communicating with the competent business department of Taiwan region with respect to cross-Straits mutual judicial assistance business of document service and, when necessary, handling specific mutual judicial assistance cases of document service and evidence collection through investigation; registering and taking statistics of cross-Straits mutual judicial assistance cases of document service handled by the people's courts within its jurisdiction; regularly reporting the cross-Straits mutual judicial assistance cases of document service handled by the people's courts within its jurisdiction to the Supreme People's Court; and timely reporting the name, contact information and change of its contact person to the Supreme People's Count and meanwhile notifying the contact person in Taiwan region and the people's courts at lower levels of the same.

Article 6 Intermediate people's courts and basic people's courts shall designate special personnel to take charge of cross-Straits mutual judicial assistance business.
Intermediate people's courts and basic people's courts are in charge of: handling specific cross-Straits mutual judicial assistance cases of document service and evidence collection through investigation; regularly reporting the cross-Straits mutual judicial assistance business of document service handled by them to higher people's courts level by level; timely reporting the name, contact information and change of their responsible persons for cross-Straits mutual judicial assistance business to higher people's courts level by level.

Chapter III Mutual Judicial Assistance in Service of Documents

Article 7 A people's court may serve civil and administrative litigation judicial documents to litigants with the domicile in Taiwan through the following means:
1. If the person to be served resides in the mainland, serve the document directly. If the person to be served is a natural person and is absent, the adult relative of the person living together therewith may be given the document and sign for it; if the person to be served is a legal person or any other organization, the legal representative of the legal person, principal responsible person of the other organization or the person in charge of receiving documents of the legal person or organization shall sign for it.
If the person to be served does not reside in the mainland but is in the mainland when the document is served, the document may be served directly.
2. Where the person to be served has an agent ad litem in the mainland, the document shall be served on the agent ad litem, unless the person to be served expressly states in the power of attorney that the agent ad litem shall have no power to receive the document on behalf thereof.
3. Where the person to be served has designated a recipient for the document, the document shall be served on such recipient.
4. Where the person to be served has a representative office, branch or business agent in the mainland, the document shall be served on the representative office thereof or the branch or business agent which is explicitly authorized by the person to be served to receive the service.
5. Request Taiwan region to serve the document through a means of cross-Straits mutual judicial assistance determined in the Agreement.
6. Where the person to be served has a definite address in Taiwan region, the document may be served by mail. And
7. Where there is a definite fax number or e-mail address, the document may be served on the person to be served by fax or e-mail.
Where it is impossible to serve the document by any of the above methods or the whereabouts of the litigant in Taiwan region is unknown, the document may be served by announcement.
Where a people's court needs to serve a criminal judicial document to a litigant with the domicile in Taiwan region, it may request Taiwan region to serve the document through a means of cross-Straits mutual judicial assistance determined in the Agreement.

Article 8 When assisting a court of Taiwan region in serving judicial documents, a people's court shall adopt the service methods stipulated in the Civil Procedure Law, the Criminal Procedure Law, the Administrative Procedure Law and other laws and relevant judicial interpretations and shall adopt direct service methods to the largest extent possible, and may not take the method of service by announcement.

Article 9 When assisting Taiwan region in serving judicial documents, a people's court shall be fully responsible and try to serve the documents in time.

Article 10 Where a people's court that tries cases needs Taiwan region to assist in serving judicial documents, it shall fill out the appendix to the Request for Service of Documents under the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits, which shall be timely delivered in duplicate to a higher people's court together with the judicial documents to be served.
If the trial date or other similar dates have been designated in the judicial documents that need to be served with the assistance of Taiwan region, a period of not less than six months shall generally be reserved for the assistance service procedure.

Article 11 After receiving the appendix to the Request for Service of Documents under the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits and the judicial documents to be served of itself or a people's court at lower levels, a higher people's court shall finish the examination within seven working days. If it deems upon examination that Taiwan region may be requested to assist in the service, the contact person of the higher people's court shall fill in the body part of the Request for Service of Documents under the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits, which shall be mailed immediately to the contact person of Taiwan region together with the appendix and judicial documents to be served; if it deems upon examination that relevant materials or contents fall short or the request for assistance from Taiwan region is not necessary, it shall immediately notify the people's court making the request to supplement relevant materials or contents or return the materials to the said people's court after explaining the reasons therefor.

Article 12 If Taiwan region serves the documents successfully and sends the evidentiary material on service to the contact person of the higher people's court or returns relevant materials in case the service has not been successfully made and meanwhile explains reasons therefor to the contact person of the higher people's court, the higher people's court shall, within seven working days after the receipt, finish the examination and forward the same to the people's court that makes the request. If it deems that relevant materials or contents fall short, the contact person of the higher people's court shall immediately communicate with the contact person of Taiwan region and request supplementing relevant materials or contents.
In case the contact person of the higher people's court has not received evidentiary material on service or the explanation document after four months since mailing relevant judicial documents to Taiwan region and it is not sufficient to deem that the documents have been served based on various circumstances, it shall be deemed that the documents can not be served through the cross-Straits mutual judicial assistance methods determined in the Agreement.

Article 13 Where Taiwan region requests a people's court to assist in serving the judicial documents of a court of Taiwan region and sends the request and relevant judicial documents through its contact person to the contact person of a higher people's court, the higher people's court shall finish the examination within seven working days. If it deems upon examination that it may assist in service of the documents, it shall immediately forward the documents to relevant peoples court at a lower level or serve the documents itself; if it deems that relevant materials or contents fall short or that it is inappropriate to assist in the service, the contact person of the higher people's court shall immediately explain the situation to the contact person of Taiwan region and notify the same to supplement relevant materials or contents or return the materials.
The people's court that handles specific mutual judicial assistance case of document service shall, within five working days after receiving the materials forwarded by the higher people's court, place the case on file based on the cause of "assisting Taiwan region in serving civil (criminal or administrative litigation) judicial documents", designate special personnel to handle the matter and shall serve the documents within 15 days after placing the case on file, which shall be finished within two months at the latest.
When receiving the request for service of documents from Taiwan region, if it has gone past the trial date or other time limit specified in the judicial documents, the people's court shall also serve the documents and meanwhile the contact person of the higher people's court shall timely explain the situation to the contact person of Taiwan region.

Article 14 If the people's court that handles specific mutual judicial assistance case of document service successfully serves the documents, the server shall sign or affix a seal on the Proof of Service under the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits and shall, within seven working days after the successful service, deliver the proof of service to the higher people's court; if the document has not been successfully served, the server shall indicate reasons for the failure to successfully serve the documents and sign his name or affix a seal and shall, within seven working days since confirming the documents can not be served, deliver such proof of service and the judicial documents that have not been successfully served to the higher people's court.
The higher people's court shall complete the examination within seven working days after receiving the proof of service mentioned in the previous Paragraph, and the contact person of the higher people's court shall sign or affix a seal on the above-mentioned proof of service and meanwhile issue the Reply to the Service of Documents under the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits, which shall be mailed to the contact person of Taiwan region together with the proof of service and the judicial documents that have not been successfully served.

Chapter IV Mutual Judicial Assistance in Evidence Collection through Investigation

Article 15 The cross-Straits mutual judicial assistance business of evidence collection through investigation handled by people's courts are limited to obtaining evidence relevant to litigation through mutual assistance with courts of Taiwan region, including obtaining testimony and statement; providing written evidence, physical evidence and audio-visual materials; making clear of the location of persons concerned or confirming the identification or previous criminal records thereof; conducting survey, examination, seizure, appraisal, inquiry, etc.

Article 16 When assisting a court of Taiwan region in evidence collection through investigation, a people's court shall adopt the methods stipulated in by the Civil Procedure Law, the Criminal Procedure Law, the Administrative Procedure Law and other laws and relevant judicial interpretations.
On the precondition that laws and relevant provisions are not violated, that public interests are not harmed and that ongoing court proceedings are not hindered, the people's court shall try its best to assist in evidence collection through investigation and shall provide assistance according to the contents and forms requested by Taiwan region to the largest extent possible.
If the criminal fact stated in the request of Taiwan region for evidence collection through investigation is not deemed to be suspected a crime according to the laws of the mainland, the people's court shall not provide assistance, except those with significant social harm that are approved by the competent business departments of the two parties to provide assistance in individual cases. If the Taiwan region requests and promotes a mainland resident to go to Taiwan region to testify but fails to make written statement that it shall not prosecute any acts of such person before entering Taiwan region without the consent of the competent department of the mainland, the people's court may not provide assistance.

Article 17 Where a people's court trying cases needs Taiwan region to assist in evidence collection through investigation, it shall fill out the appendix to the Request for Evidence Collection through Investigation under the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits, which shall be delivered in triplicate in a timely manner to a higher people's court together with relevant materials.
The higher people's court shall, within seven working days after receiving the materials mentioned in the previous Paragraph, finish the preliminary examination and shall immediately forward the examination opinions, the appendix to the Request for Evidence Collection through Investigation under the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits as well as relevant materials in duplicate to the Supreme People's Court.

Article 18 After receiving the appendix to the Request for Evidence Collection through Investigation under the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits and relevant materials forwarded by the higher people's court as well as the examination opinions of the higher people's court, the Supreme People's Court shall finish the final examination within seven working days. If it deems upon examination that assistance may be requested of Taiwan region in evidence collection through investigation, the contact person of the Supreme People's Court shall fill in the body part of the Request for Evidence Collection through Examination under the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits, which shall be mailed immediately to the contact person of Taiwan region together with the appendix and relevant materials; if it deems upon examination that relevant materials or contents fall short or the request for assistance from Taiwan region in evidence collection through collection is not necessary, it shall immediately notify the people's court making the request via the higher people's court to supplement relevant materials and contents or return the materials to such people's court after explaining the reasons therefor.

Article 19 If Taiwan region collects evidence through investigation successfully and mails the obtained evidence material to the contact person of the Supreme People's Court or returns relevant materials in case the evidence has not been successfully collected through investigation and returns relevant materials and meanwhile explains reasons to the contact person of the Supreme People's Court, the Supreme People's Court shall, within seven working days after the receipt, finish the examination and forward the same to the higher people's court, which shall forward the same to the people's court making the request within seven working days after the receipt. If the Supreme People's Court deems upon examination that relevant materials or contents fall short, the contact person of the Supreme People's Court shall immediately communicate with the contact person of Taiwan region and request supplementing relevant materials or contents.

Article 20 Where Taiwan region requests a people's court to assist a court of Taiwan region in evidence collection through investigation and mails the request and relevant materials through its contact person to the contact person of the Supreme People's Court, the Supreme People's Court shall finish the examination within seven working days after the receipt. If it deems upon examination that assistance may be given in evidence collection through investigation, it shall immediately forward the same to the relevant higher people's court or handle the matter itself and the higher people's court shall forward the same to relevant people's court at a lower level or handle the matter itself within seven working days after the receipt; if it deems upon examination that relevant materials or contents fall short or that it is inappropriate to assist in evidence collection through investigation, the contact person of the Supreme People's Court shall immediately explain the situation to the contact person of Taiwan region and notify the same to supplement relevant materials or contents or return the materials.
The people's court that handles specific mutual judicial assistance cases of evidence collection through investigation shall, within five working days after receiving the materials forwarded by the higher people's court, place the case on file based on the cause of "assisting Taiwan region in evidence collection through civil (criminal or administrative litigation) investigation", designate special personnel to handle the matter and finish the assisted evidence collection through investigation within one month after placing the case on file, which shall be finished within three months at the latest. If the evidence can not be collected before the time limit expires for some reason, it shall write to the higher people's court in advance and the higher people's court shall report the same to the Supreme People's Court.

Article 21 If the people's court that handles specific mutual judicial assistance case of evidence collection through investigation successfully collects evidence through investigation, it shall, within seven working days after the evidence has been collected, deliver the obtained evidence materials in triplicate together with the materials provided by Taiwan region to the higher people's court and shall attach situation explanation when necessary; if the evidence can not be successfully collected through investigation, it shall issue a cover letter in triplicate, which shall be delivered together with the materials provided by Taiwan region to the higher people's court within seven working days since confirming the evidence can not be successfully collected through investigation.
The higher people's court shall finish the preliminary examination within seven working days after receiving the materials mentioned in the previous Paragraph, and shall immediately forward the examination opinions, the above-mentioned evidence materials obtained or cover letter in duplicate to the Supreme People's Court together with the materials provided by Taiwan region.
The Supreme People's Court shall finish the final examination within seven working days after the receipt and the contact person of the Supreme People's Court shall issue the Reply to the Service Collection through Investigation under the Agreement of Jointly Cracking down on Crime and Mutual Judicial Assistance across the Straits and immediately mail the same to the contact person of Taiwan region (if necessary) together with relevant materials.
Where the evidence materials are inappropriate to copy or it is difficult to obtain a backup, the backup materials may not be provided pursuant to the provisions of Paragraph 1 and Paragraph 2 of this Article.

Chapter V Supplementary Provisions

Article 22 People's courts shall keep confidential relevant materials provided by Taiwan region when requesting assistance and relevant materials obtained in executing the request, except those used according to the request purposes.

Article 23 The people's courts shall use the materials provided by Taiwan region in assistance as per the purposes stated in the request, unless otherwise agreed through consultation by the Supreme People's Court and the competent business department of Taiwan region.

Article 24 No notarization, authentication or other formal proof needs to be handled for the evidence, judicial documents and other materials obtained from Taiwan region pursuant to the Agreement and these Provisions.

Article 25 People's courts shall use a unified and standard document style when handling cross-Straits mutual judicial assistance business.

Article 26 The expenses incurred in executing the request of Taiwan region shall be born by relevant people's courts. However, the following expenses shall be paid by competent business departments of Taiwan region:
1. Appraisal expenses;
2. Translation expenses and transcription expenses;
3. Expenses incurred by witnesses and expert witnesses that provide assistance to Taiwan region due to going to, staying in and leaving Taiwan region; and
4. Other expenses determined through consultation by the Supreme People's Court and the competent business department of Taiwan region.

Article 27 Various types of documents and materials received, obtained and prepared by people's courts in handling cross-Straits mutual judicial assistance cases shall be preserved as lawsuit archives in original or copy form.

Article 28 Where assistance is needed from Taiwan region in serving judicial documents and collecting evidence through investigation in cases tried by the Supreme People's Court, the Supreme People's court shall handle the matter itself by reference hereto.
When handling cross-Straits mutual judicial assistance business of document service and evidence collection through investigation, special people's courts shall refer to these Provisions.

Article 29 The handling of cross-Straits mutual judicial assistance cases and implementation of these Provisions shall be included in the scope of work performance appraisal and case quality examination of relevant people's courts and pertinent working personnel.

Article 30 Where there is any discrepancy between the judicial interpretations promulgated herebefore and these Provisions, these Provisions shall prevail.