The Research On Problem Of Service Abroad By Public Announcement

Article 274 of Civil Procedure Law of China prescribes eight ways of service abroad,among which service abroad by public announcement is the last one,which can be applied only when other seven ways failed.Service abroad by public announcement is a fictional way of service.After the expiration of the time limit of announcement,whether the addressee receives the public announcement or not,the service shall be regarded as successful.It sacrifices some fairness for efficiency of service,but it still needs to guarantee the balance between fairness and efficiency.However,in China the legislation of service abroad by public announcement is too narrow,which makes it sacrifice the fairness and cannot realize the efficiency of service,so it falls into the predicament of getting both,and further aggravates the problem of service abroad.Therefore,it is necessary to improve three aspects of the problem,which are the prerequisite,the method of announcement and the time limit of announcement,and the method of remedy for the service abroad by public announcement.The first chapter introductorily expounds the concept and characteristics of service abroad by public announcement.Service abroad by public announcement has three characteristics: fictionality,comprehensiveness and procedural strictness,which sacrifices some fairness for efficiency of service,but its fundamental purpose is to achieve a balance between the efficiency and fairness of the service.Then,the article points out that our country’s service abroad by public announcement cannot guarantee efficiency when it sacrifices some fairness for efficiency of service.The bottom line is that our country’s legislation is too narrow,which includes three aspects: the first one is rigid application;the second one is the limitation of the way of announcement with the time limit of announcement,and the third one is the lack of relief mechanism after improper service abroad by public announcement.The second chapter retrieves the situation of the Supreme People’s Court of China concerning the service abroad by public announcement,and combines the query raised by the addressee against the service abroad by public announcement in the cases heard by the Supreme People’s Court of China,and summarizes the query into three categories.The first one is whether the service by public announcement falls within or outside the territory,the second one is the application of opportunity,and the third one is objection to the method and period of announcement.These three questions are actually caused by the narrow problems existing in the system of service abroad by public announcement.The third chapter analyzes the system of service abroad by public announcement in the main countries and regions of the common law system and the civil law system.Because there are some differences in the two legal systems,and their regulations of service abroad by public announcement also reflect some differences.The countries or regions of common law system do not have too many provisions on extraterritorial service by public notice,but in judicial practice,service abroad by public announcement is closely related to the principle of due process,and the application of service abroad by public announcement is very rigorous.In contrast,countries or regions of civil law system have more detailed legislative provisions on service abroad by public announcement,such as the methods and time limit of public announcements mentioned before application,and the corresponding remedies of the addressee.But generally speaking,the main countries and regions in the two legal systems are very careful and strict with the application of the service abroad by public announcement,which is worth studying in our country.On the basis of the previous chapters,the fourth chapter puts forward some suggestions for amendment and improvement proposals.Firstly,it is necessary to improve the preconditions for the application of service abroad by public announcement,including revising the premise that "the addressee has no domicile within the territory of China",clarifying the standards for which other ways of service abroad cannot complete of delivery,and attach importance to the review of due process of service abroad by public announcement.Secondly,the announcement function of service abroad by public announcement shall be enhanced,specifically including enhancing the plaintiff’s participation in service abroad by public announcement,increasing the statutory ways of announcement and improving the contents of announcement.Finally,it is necessary to improve the remedies for improper service abroad by public announcement.On the one hand,it is necessary to strengthen the remedies of the addressee and remind the risk of refusal of recognition and enforcement of the judgment by the foreign court after the improper service abroad by public announcement.Based on the legislative problem and challenges in judicial practice of the service abroad by public announcement,and the experience of legislation and judicature of the service abroad by public announcement in the civil law system and common law system,the article puts forward some suggestions on how to solve the problem,so that the service abroad by public announcement can play its due role.