本文将介绍在开曼群岛起诉的程序和相关规定,包括起诉方式、送达方式和被告的答辩等。同时,本文还介绍了开曼群岛法院的相关规定,以及缺席审判对判决执行的影响。
在阅读本文时,请注意文中涉及的法律专业知识和实践经验,如有需要,请咨询我们的专业律师。
当债务人试图通过开曼公司来隐藏资产时,您需要找准专业团队来为您解决问题。浩天律师事务所的杜国栋律师团队,与渔渡咨询携手,专为各类跨境债务催收提供全面的解决方案。我们在开曼的本地合作团队,拥有开曼群岛诉讼的丰富经验,保护您的权益。
一、起诉
不同类型的诉讼,可以采用不同的方式起诉。
1. 传票
一般来说,民事诉讼是通过提交和送达传票开始的。
当事人可以签署包含有完整起诉书的令状,也可以在提交的令状中仅附有诉讼请求性质和寻求救济的简明陈述。在后一种情况下,当事人必须在稍后将起诉书作为单独的诉状提交。
2. 原诉传票
如果诉讼不会涉及任何实质性事实争议,例如,原告就纯粹的合同解释或法律解释问题寻求宣告性判决,则可以通过原诉传票起诉。
原诉传票适用简易审判程序。在原诉传票中,必须列出原告寻求裁定或寻求救济的陈述或问题,以及提起诉讼的原因。
3. 破产申请书
当事人如果希望启动破产程序,必须提交破产申请书,其内容包括:
(1)公司成立的详情;
(2)公司业务描述(包括开展业务的国家);
(3)寻求清盘令的理由的简要陈述;
(4)提名为正式清算人的姓名和地址。
二、送达
1. 送达期限
传票和原诉传票都有一个“到期日”,即在提交法院后,原告必须在一定期限内送达被告。
如果需要向开曼群岛之外的当事人送达传票,则该送达期限一般是六个月。如果仅在开曼群岛管辖范围内送达产品,则该送达期限为四个月。
如果原告未能在该期限内完成送达,则起诉文件的有效性将届满。此后,原告需要提交新的令状或原诉传票。
2. 送达义务人
起诉文件的送达义务人是原告。
3. 开曼群岛境内的送达
如果在开曼群岛内进行送达,针对自然人的送达,通常必须采取个人送达方式;针对在开曼群岛注册的公司,则可通过邮寄方式送达至其在开曼群岛的注册办事处。
如果诉讼涉及的是合同纠纷,且合同中约定了诉讼的送达方式,则可以根据这些条款进行送达。
如果普通的送达方式确实存在困难,原告可以向法院申请批准以其他方式送达,其中可能包括通过电子邮件、传真或报纸公告送达。
4. 开曼群岛境外的送达
向开曼群岛境外进行送达,须事先获得法院许可。向法院申请许可时,原告必须:
(1)使法院确信其有充分的理由进行该送达;
(2)确定可能发现被告的国家;
(3)表明拟采用的送达方法,并表明其符合拟进行送达的国家的法律;
(4)使法院确信开曼群岛是最合适受理该案件的法院;
(5)满足境外送达的任何一项门槛性条件。
《大法院规则》第11号命令第1条规定了开曼群岛境外送达的门槛性条件:
(1)诉讼请求针对开曼群岛公司的现任或前任董事、高级职员或成员或开曼群岛合伙企业的合伙人提出索赔,并涉及该公司或合伙企业或相关董事、高级职员、成员或合伙人的地位权利或义务;
(2)诉讼请求涉及在开曼群岛法律管辖范围内或受开曼群岛法律约束的合同;
(3)诉讼请求涉及开曼群岛法律管辖的信托;
(4)诉讼请求是承认与执行仲裁裁决;
(5)诉讼请求涉及在开曼群岛发生的违约行为,或因在开曼群岛实施的行为造成的侵权、欺诈或失职行为。
5. 被告提交送达确认书
被告有14天的时间向法院提交送达确认书。如果被告在开曼群岛境外,则其提交送达确认书的时限则会更长。
如果起诉书已附在令状上,则被告在确认送达令状的期限届满后,还有14天的时间提交和送达答辩状。如果原告没有在令状上附起诉书,则其必须在被告提交送达确认书后14天内提交起诉书并向被告送达该起诉书,被告在收到起诉书后后还有14天的时间提交答辩状。
如果被告没有提交送达确认书,则其后果根据诉讼请求的不同而不同。
(1)如果令状上列明了请求清偿的债务,则被告未能确认送达、也未提交答辩状,则原告将有权要求法院对诉讼请求中要求的本金、利息和固定费用作出最终判决。
(2)如果令状上没有列明了请求清偿的债务,原告可以要求法院先行作出中间判决,确定损害赔偿的金额。
如果被告确实承认令状已送达并表示有意进行答辩,但未能及时提出辩护状,也会产生类似的后果。
如果在被告未能确认送达、也未提交答辩状的情况下,法院作出了判决。被告也可以申请法院撤销或变更该判决。但被告必须重新参与诉讼并使法院相信撤销或改变判决是合理的。
一般来说,被告如果缺席诉讼程序,并不影响法院作出判决。但是,缺席审判可能会影响开曼群岛法院的判决在其他国家和地区的执行,具体视这些国家和地区的法律而定。
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