Our law firm has many corporate clients, and they are all masters in different industries. As you may know that the one doing business in China may have to either go through administrative procedures to at least be qualified to start or continue operation in certain areas or complete certain judicial proceedings to safeguard their business, rights and/or interests. No matter to issue official approval/certificate or to make decision of penalty, service of legal instrument including without limitation, approvals, certificates, punishment decisions, administrative verdicts and so forth, should be considered as one of the most essential administrative acts taken by certain authorities during the administrative or judicial proceedings.
Will it be a big deal if any legal instrument is not serviced? The answer would be “YES”. As what has been reported, you would be granted a qualification as one legal representative of a company when you have no idea about the application for setting up the company at all. Or, sometime, you might be fined without even noticing any official decisions. Although this kind of official negligence happens rarely, one of our clients did encounter once, as the client noticed that an administrative decision which annulled one of its qualifications was wrongfully serviced to another company.
According to opinions of theoretical jurisprudence, if the officials have issued legal instrument regarding their decisions on some of your issues, but the legal instrument has never been serviced to you, neither the validity of the decision nor the impact caused by those decisions upon you should be sustained or acknowledged, which is to say, that you should never be bound by any decision made without going through the due course of service procedures. However, the theory is incompatible with the current legal system, as there is no legal proceeding designed for any complaint to claim for justifying the invalidity of such non-serviced decisions. Therefore, to help our client out of the troubles brought by such non-serviced decisions, we have to find out another strategy which is to claim for rescinding such decision based on its violation to certain statutory procedures according to Article 70 of the Administrative Procedure Law. Ironically, according to theories and provisions, the definition of “rescind a decision” means to firstly recognize the validity of that decision. Although we doubt the validity of the non-serviced decision, we have to resort Article 70 as it is the best clause that we may utilize to save our client.
Now you may see that sometimes, when there is omission in laws or regulations regarding solution of certain legal issues suffered by our clients, we will have to strive for finding out the existing legal basis that may be the best way to protect the clients. That’s how we acted for the above mentioned client, and that’s also how we will act for you.