涉外民商事案件诉讼文书送达的困境与出路——从《民事诉讼法》第283条修改展开

The Dilemma and Solution of Service of Process in Foreign-Related Civil and Commercial Cases-From the Revision of Article 283 of the Civil Procedure Law

涉外民商事案件的诉讼文书送达不仅有国内诉讼文书送达所面对的困难,还存在协助送达程序复杂、送达难度大、送达周期更长等问题。其背后不仅有受当事人配合程度高低所产生的影响,还有不同法域间诉讼理念差异和法律规定不完善等原因使然。本次《民事诉讼法》第283条修改增加了确认送达的连接点,在一定程度上将缓解我国法院涉外送达的压力,但根本性问题仍然没有得到解决。需要根据当事人主义诉讼模式,重新合理分配当事人与法院之间的送达成本、责任及风险负担,让当事人承担部分民事送达责任。同时,发挥电子送达的高效便捷特点,解决涉外案件诉讼文书的送达难题,提高我国涉外民商事案件的纠纷处理能力和我国的司法服务水平。

The service of process in foreign-related civil and commercial cases not only has to face the difficulties that exist in the service of process on the mainland,but also suffers from the complexity of the procedure for assisting in the service,the difficulty of service,and the longer service cycle.It is affected not only by the willingness of the parties to cooperate,but also by the differences in litigation concepts between different jurisdictions and the imperfections of legal provisions.This amendment to the Civil Procedure Law added the connection point of confirmation of service in Article 283,which will release the pressure on mainland of Chinese courts to serve foreign parties,but the fundamental problem has still not been solved.It is necessary to redistribute the cost,responsibility and risk burden of service between the parties and the court in accordance with the partyism litigation mode,so that the parties can assume part of the civil service responsibility.At the same time,we should give full play to the efficient and convenient features of electronic service,solve the problems of service in foreign-related cases,and improve our ability to deal with disputes in foreign-related civil and commercial cases as well as our level of judicial service.