Service by fiction is when you have not actually read a piece of mail from a court or agency, but the law creates a fictitious presumption that the reading has occurred and the mail is delivered. This applies to both physical and electronic service and can lead to a number of unpleasant situations. What should you do to ensure that this is not the case for you?
Delivery of documents from courts, police or other authorities follows a strict process. It must also take into account the possibility that the addressee does not want to receive the parcel or is not available. Sometimes, however, this procedure falls on those who are relatively innocent.
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Have you been subjected to a delivery fiction but have a good reason for not knowing about the delivery? Contact us. We can help you with a challenge to the delivery fiction and any other problems that may have arisen.
The basic rule is that natural persons are served with a document:
Some documents (typically decisions, summonses) can only be served by hand. They must then be received by the addressee himself or by someone authorised by the addressee by power of attorney. This must be in writing and have a certified signature. Unless there is a specific requirement for service of the document, it is sufficient to serve it by placing it in a post box or other appropriate place. If acknowledgement of receipt by the recipient is required, this can also be satisfied by handing it over to a neighbour or other person who lives or is employed in the same place and agrees to hand it over.
Alegal person is typically served at the address for service or at its registered office (usually the same address). If the proceedings concern only its organisational unit, service shall be effected at its registered office. Where service is effected by means of a public data network, service shall be effected at the electronic address or data box of the legal person.
Where certain documents are addressed to the person concerned, they may not be received by any employee but only by persons designated by law to receive them. As a rule, these are the statutory bodies or persons authorised by them in writing.
If it is not hand-delivered, it is sufficient to place it in the addressee’s mailbox or, if a receipt is required, it may be delivered to any natural person who is authorised to receive the document on behalf of the addressee (for example, another natural person living, working or employed in the same place or its vicinity who agrees to hand over the document to the addressee).
Sometimes it happens that the parcel could not be delivered to the addressee. For example, because the recipient was in hospital, on a long business trip or was afraid of receiving the parcel and denied receiving it. In the case of legal entities, for example, a situation may arise where the entity uses a virtual registered office and there is no one to receive the mail at the address.
Tip: A virtual registered office can be a fee-based service where the registered office provider leases a specific address to a legal entity, which it registers in the commercial register. However, it is a fictitious registered office, which is not used by the company and hundreds of companies may be located at one address. Although this may smack of illegal practices by the company, the use of a virtual registered office is legal under Czech law and cannot be fined or otherwise punished.
In the event that the document cannot be delivered according to the above-mentioned procedures, the parcel is deposited, for example, with the administrative authority that issued it, with the municipal authority or at the post office. The Code of Civil Procedure for judicial proceedings generally allows for service at any place where the addressee can be found. If it is obvious that there will be delays in service, the court may call for the appointment of a representative for service. And if all options fail, the service shall also be deposited at the post office or at the court.
After the deposit, the addressee is notified that he or she has ten days to collect the document and is also informed exactly where and when the document can be collected and what will happen if he or she fails to do so. After this period, the mail is normally deposited in the mailbox (unless the administrative authority has ruled it out). This increases the likelihood that the addressee will get to know it after all. Under the Administrative Procedure Code, the act of service begins on the day following the day on which the addressee is notified and starts on the tenth day thereafter. However, service cannot be effected on a public holiday or at the weekend. In such a case, it would not occur until the first weekday following.
Similarly, in the case of data boxes, the document is deemed to be delivered on the tenth day following the day on which the document is delivered to the data box. It shall be deemed to have been delivered even if the person concerned does not log in to the data box. From 2022, this rule will also apply to communications between natural and legal persons, i.e. not only official communications with courts and authorities. This unifies the time of delivery of public and private legal documents. The aim of the regulation is, among other things, to prevent obstruction in the delivery of private law documents, where the addressee, for example, deliberately did not log in to the data box.
From law practice: Ms. Marcela contacted us with a request for advice. In the last six months she suffered a serious car accident, as a result of which she spent almost three months in hospital. On her return, she discovered that she had been served with a fictitious judgment in a compensation dispute with her former employer and, as she had not had time to appeal, she would not be awarded what she had claimed. We have advised Ms Marcela that in serious circumstances such as a hospital stay, it is possible to challenge the fiction of service (of course, everything must be properly explained and documented to the court or administrative authority). We also helped Marcela to appeal against the decision, which she eventually succeeded in doing.
Both the user of a data box and the ordinary citizen who is served with a document have legal protection against the fiction of service. He can apply for a declaration that service by fiction is ineffective. However, according to the Administrative Code and the Code of Civil Procedure, it is necessary to prove that the addressee, due to temporary absence or for another serious reason, was unable to collect the data message or parcel, for example, at the post office within a ten-day period without his/her fault.
A typical reason for the ineffectiveness of the delivery may be the aforementioned hospitalization in hospital, which did not allow the document to be collected.
Tip: We covered other potential problems with data mailboxes and how to avoid them in our article on tips for using data mailboxes.
First of all, everyone should take care of their mailbox so that it is easily identifiable and accessible.
If you are involved in any legal or administrative proceedings and you know you are going away for a long period of time, inform the relevant authority and agree on an efficient form of delivery. For example, you can set up a data box.
However, even a data box will not fully protect us from the fiction of service. On the contrary, it must be consulted regularly. If you know that you will forget to do this, set up a delivery notification that can be sent to your mobile phone or email address.
Tip: The obligation to own and use a data box applies to all sole traders. However, it is not only for them. In many ways, you will appreciate it even if you are not a sole trader. In our next article, we will advise you on how to set up a data box.
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