Study On Service By Publication Of Civil Procedure In China

Delivery plays a very important role as a link in promoting proceedings of the civil procedure. As a special way of delivery, service by publication transmits effective information with the help of diverse communication media. If the whereabouts of a recipient is unknown or if a document can not be served by the other methods prescribed, the judicial organs will announce litigation documents. After a certain period, the legal effect of service is produced. Relevant legislation and the practice operation marks our country has preliminarily established the system of service by publication in civil proceedings. Service by publication complies with diversified goal of civil litigation and the essential requirement of procedure guarantee. At present, these diverse shortcomings of service by publication still plague practical departments, but it rarely causes the attention and research of theorists. So, foreign comparative analyses of the related system could provide us with useful reference. After the interpretation of legislation of our country on service by publication, the paper puts forward the problems of service by publication in the legislative defects. Legislative issues mainly include ambiguous applicable premise, the deficiency of application and acceptance procedures, non-standard and incomplete ways, long-term delivery, and the lack of relief program.The results of data statistics and analysis of cases about service by publication of Henan province court system in nearly three years point out that the type of cases is typical, concentrating mainly on divorce cases, folk loans and contract relationships and cases about service by publication is closely related to the absence of trial procedure. Through the empirical analysis, this article comes up with many problems about service by publication in practice. The problems in judicial application are poor result which is easily causing the subsequent effects, primarily high cost, unclear or non-standard contents of all kinds of litigation documents. Moreover, the reason will not be recorded and it is vulnerable to the influence of subjective factor. Given this, legislative reform and practical perfection of service by publication must follow lawsuit idea of the entity justice, and insist on cautious and strict strategy in application. In practical terms, relevant legislation must specify in detail the following provisions, such as the precondition of service by publication, application and acceptance procedures, the plaintiff’s burden of proof and the judge review responsibilities, in the form of litigation documents, the way innovation of service, shortening the duration, special relief program, the unified content and format of the document, and punishment mechanism. The related matching measures are to set up the specialized service team and improve the file management.