Legal Tips on Express Delivery

    Nowadys express delivery plays a more and more significant role in daily life and business. In the event of any dispute between the sender and the recipient, whether delivery of certain item or letter could be proved or not sometimes may affect the results of a lawsuit. For example, the law stipulates that the statute of limitations for the loan dispute is three years, namely, if a creditor fails to demand repayment of a debt within three years upon the expiry of repayment period, such creditor is without redress. Therefore, frequently in judicial practice, although some creditor has claimed creditor’s right by phone or in person before the statute of limitations has run, such creditor still struggles in proving the delivery, which results in losing a lawsuit. In fact, if a creditor could retain the written evidence of the delivery of the letter by the express company for claim of the creditor’s right in the course of debt collection through conventional methods, the aforementioned circumstances can be effectively avoided. Nevertheless, to generate effective delivery of an express mail, how to make express delivery means a lot.

I.                    Choice of express company

For delivery of key letters, use of China Post EMS (i.e., Express Mail Service) is highly recommended. Although compared with express companies such as S.F. Express and Yunda Express, the EMS is not performance and cost effective, its state-owned background makes that the approval rate of China Post EMS by the court is much higher than that of other express companies. In practice, some courts even reject legal instruments delivered by other express companies except China Post. Therefore, the probative weight of express delivery by China Post in the court can be inferred.

II.  Instructions on how to fill out express delivery forms

1. Write clearly, don't scribble; make efforts to write with strength, to ensure that words on the duplicate for the sender is legible and identifiable.

。

2. The sender: If the sender is an organization, it is recommended to fill in the full name of the organization; the agent of the sender shall fill in his/her full name, valid contact address and telephone number.

3. The recipient: if the recipient is an organization, the name column of the recipient shall be accurately filled in with the name of the legal representative (or principal) of the other party or the contact set forth in the contract, and name column of the recipient organization shall be filled in with the full name of the other party in the business license.

4.   The contact phone number of the recipient: accurately fill in the office telephone number of the other party and mobile phone number of the recipient (the phone number set forth in the contract is preferred); it is recommended to make a test call before mailing and make sure that the phone number filled in is in normal use.

5.   The receiving address: fill in the address for delivery of notice of the other party set forth in the contract; If the contract has no such clause or such clause is ambiguous, fill in the registered address of the other party (if organization) or the residential address in the identification card of the other party (if individual). It should be mentioned that using the registered address of the organization or the address in the identification card as receiving address is best of a bad bunch, and often it means that securing a successful delivery is difficult, so it is recommended to specify the communication address of the other party in writing (such as contracts, correspondences) from the very beginning of doing business for the purpose of avoiding unnecessary disputes.

6.   Mail detail (name and contents): the information in this column is particularly important! The name and contents enclosed shall be explicitly specified. A simple "file" or leaving it blank can't prove what kind of mail it is, and it is hard for the court to deem it as valid evidence. For example, if creditor A demands that debtor B make payment of a debt, fill in “Letter regarding A’s demand on B make payment of XXX debt” (A detail on B’s failure to repay XXX RMB that B borrowed from A on [date] can also be indicated). Another example, if A has made payment for goods, and yet B fails to make delivery, then A can write "Letter regarding A’s request on B make delivery of XX (goods) set forth in the contract XX as soon as possible ", etc.

7.   The column of mailing date involves the statute of limitations of evidence, so it must be filled in complete and legible.

8.   The express note shall obtain signature from the courier for the purpose of proving the fact of delivery.

III. Saving evidence of express delivery

After the mail is sent out, the following documents shall be filed synchronously: the mailing letter (preferably original),  the duplicate for sender of express delivery note, the delivery record on the official website of the express company, the acknowledgment receipt by signature/SMS (if obtainable) of the other party.

By doing so, the letter, sender’s note and delivery information can form a compete chain of evidence, which provides a better support for winning a lawsuit.

IV. Other methods to enhance the probative weight of evidence

1.   Delivery by SMS/E-mail

With the implementation of the newly revised Civil Procedure Law in 2013, electronic data (such as SMS, E-mail, online chat record, etc.) are more and more recognized by the judicial authorities. Therefore, after the mail is sent out, send a SMS regarding the contents of the letter to the contact phone number of the other party or send an E-mail regarding the contents of the letter to the mailbox of the other party, and properly keep the delivery record of such SMS or E-mail, which can also enhance the probative weight of the delivery of the correspondence.

However, the premises of doing so is to be able to prove (preferably in writing form) such contact phone number or E-mail is owned by the other party; otherwise, the probative weight will be discounted.

2.   Notice clause in the contract

If the signed contact has set forth a complete notice clause, the probative weight of delivery of the correspondence will be greatly enhanced. It is recommended to include the following in the notice clause:

 (1)       Contact: generally includes contact person, contact phone number, contact address (not the registered address in the Administration for Industry and Commerce), fax, Email, etc.

 (2)       Standard of delivery: for example, set forth that any correspondence shall be deemed to have been delivered, if by express mail, at the fifth day upon the mail being sent out, or if by E-mail, in 24 hours upon the mail being sent to the designated mailbox of the other party, etc.

 (3)       Change of contact: set forth that if there is any change to the correspondence address of either party, such party shall notify the other party in writing within a certain period; otherwise, such party shall assume all legal liabilities with respect to failure of delivery of any notice.

3.   Notarization and lawyer witness

Based on the significance of the matter, or the possibility of lawsuit, notarization and lawyer witness can be used in the following two areas, and such notarization or witness can be filed together with other evidences of delivery:

 (1)       Sending: use notarization or lawyer witness in the course of document enclosure and sending, so as to prove the contents of the document and the fact of sending.

 (2)       Delivery: where the evidence of acknowledgement receipt by the other party cannot be obtained, notarization or lawyer witness can be used for information such as delivery record on the website of the express company, so as to prove the authenticity of the web information.