On "Constructive Service" In Civil Service Of Process

The civil service of process is a behavior of people's court to send litigious documents to litigant and other litigious participants according to legal procedures and modes.In order to guarantee that the litigious participants can know about progress of litigation timely and participate in the litigation effectively,the work of service runs through the whole judicial proceeding.Constructive service is a special form of civil service of process that is deemed to be legal even though the addressee fails to receive litigious documents actually when the addressee refuses to accept the litigious documents subjectively or the court fails to serve addressee objectively and it confirms to legal requirements.In this paper,the author strives to analyze the existing problems and reasons for constructive service in civil service of process and finally put forward the corresponding countermeasures to solve part of the problems for "service difficulty"."Constructive service" is both a service result and a mode of civil service of process and it has the characteristics of civil service of process.Under the Chinese national conditions,the addressees has their own understanding of civil service of process: in the civil service of process,the service occurs and has legal binding effect on addressee only when the court actually sends civil litigious documents to addressee.When the litigious documents are not actually delivered to addressee,he can refuse to accept its effect even if it is regulated by law that the constructive service has come into effect.The addressee's unique understanding of civil service of process is in line with China's national conditions and the Chinese's attitude of being practical and realistic."Constructive service" is a kind of legal fiction in nature and it is a legislative technique with specific external mark that lawmakers use against the rights and obligations of addressee during reception process of litigious documents to regard the service that is different from factual service in an equivalent way in order to improve the judicial efficiency.As a kind of fictional service,constructive service has the same legal effect with factual service even though it may not have the result of factual service that addressee actually receives the litigious documents.The reason why "constructive service" is recognized by law and become a necessary component of the civil service of process lies in its value of procedure promotion and that of litigation information dissemination.In this paper,the general conditions for civil service of process and constructive service will be expounded and relation between service and constructive service will be analyzed in the first place;namely,constructive service is both a result of civil service of process and a mode of civil service of process;constructive service is divided into constructive service that is not accepted and constructive service that can not be served.Secondly,it will be stated that the constructive service is a kind of legal fiction in nature and it is a kind of legislative fiction,micro-level fiction,dominant fiction and conclusive fiction.The constructive service is equipped with the functions of improving judicial efficiency,maintaining judicature authority and protecting just claim of litigant.The constructive service is a necessary service mode in the civil service of process and meanwhile it is also a complementary service mode.Thirdly,the current situation of constructive service will be summarized and reasons will be analyzed;in particular,the Chinese think that what really happens is what happens and what does not really happen is not what happens,even if the law stipulates.Hence,when the service is refused or can not be realized in judicial practice,the addressee does not accept the psychological anticipation that constructive service has legal binding effect on him subjectively,leading to the increased application difficulty of constructive service.Thus,such kind of Chinese characteristic should be considered when designing constructive service.Finally,improvement measures of constructive service in civil litigation will be put forward;under the background of Chinese characteristics,the establishment of constructive service shall approach to factual service.In the civil service of process,the constructive service that is not accepted can come on stage only after the court rules out the possibility of factual service.Only when it can not be served after making reasonable efforts,the constructive service that can not be served,namely service by publication is applicable.The application of this kind of progressive constructive service that is gradually keeping away from factual service is in line with both legal principles and social needs and in this way,tension can exist between legal principles and social needs.Meanwhile,some relevant improvement measures should be equipped to guarantee the realization of legislative intents and bring about the further improvement of civil service of process in China.