No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 17 January 2008
On 1 July 1997 Hong Kong entered a new era when it was transformed from a British colony into a Special Administrative Region (SAR) of the People's Republic of China (PRC). The impact of the handover of Hong Kong cannot be overstated but, for the time being perhaps, may lie more in the sphere of ideology than in institutions.
1. Part III of the Elaboration by the Government of the People's Republic of China of its Basic Policies regarding Hong Kong, as Annex I to the Sino-British joint Declaration, states: ‘After the establishment of the Hong Kong Special Administrative Region, the judicial system previously practised in Hong Kong shall be maintained except for those changes consequent upon the vesting in the courts of the Hong Kong Special Administrative Region of the power of final adjudication.’
2. The second paragraph of Art.81 of PRC, the Basic Law of Hong Kong SAR, states: ‘The judicial system previously practised in Hong Kong shall be maintained except those changes consequent upon the establishment of the Court of Final Appeal.’
3. Unlike that before handover when the United Kingdom Privy Council served as Hong Kong's final appeal judicial organ, the judicial system in Hong Kong SAR will become an independent and separate system, with its own court of final appeal, according to the Sino-British Joint Declaration and the Basic Law.
4. As well known to the rest of the world, the Chinese attitude towards the ‘question of Hong Kong’, was based on the ‘unequal treaties’ hypothesis. The status of Hong Kong judgments, like anything following from the ‘unequal treaties’, was not officially viewed as ‘foreign’. But, they were treated, not viewed, by reference to applicable foreign relations.
5. The figures can be obtained from the Internet web site of the Hong Kong SAR Government Information Centre.
6. These arc the Bank of China, the Industrial and Commercial Bank of China, the Agriculture Bank of China and the China Construction Bank.
7. According to the Civil Procedure Law of the PRC, there are two types of judicial awards: judgment (panjue) and decision (caijue). However, the distinction makes no difference to their enforcement. For the sake of convenience, no distinction is made in this article between the judicial awards.
8. Art.207 of PRC, the Civil Procedure Law.
9. Art. 210 of PRC, the Civil Procedure Law reads: ‘if the person against whom [a judicial award] is to be enforced or the property, which is the subject of enforcement, is at another place [outside the court's jurisdiction], the enforcement may be delegated to the local court. The delegated court shall, within fifteen days starting from the receipt of the letter of delegation, start enforcement, and shall not refuse to do so. The delegated court shall, after the enforcement is completed, notify via letter the delegating court the result of enforcement; in case the enforcement is not completed within thirty days, notify the particulars of the enforcement.’ ‘If the delegated court fails to enforce within fifteen days from the receipt of the letter of delegation, the delegating court may request the court at a higher level over the delegated court to instruct the delegated court to enforce the judicial award.’
10. In dealing with cases involving local parties and parties from other jurisdictions, the local court is often seen as biased to the local parties, either driven by the interests of or under pressure from the locality.
11. Art.267 reads ‘If a legally effective judgment or decision by a foreign court requires recognition and enforcement by a people's court of People's Republic of China, the party concerned may directly apply for recognition and enforcement to the competent intermediate people's court. The foreign court may also, in accordance with the provisions of the international treaties concluded or acceded to by that foreign country and the People's Republic of China or with the principle of reciprocity, request recognition and enforcement by a people's court.’
12. As to which intermediate people's court has jurisdiction, it shall be referred to Art.22 and Art.243 of the civil Procedure Law. Art.22 states that the people's court of the defendant's domicile has jurisdiction. Art.243 further provides that, where the defendant has no domicile in the PRC, the people's court shall have jurisdiction if the contract is signed or performed at, or the object of the lawsuit is at, or the defendant's distrainable property is located at, or the torts are done at, or the defendant's representative office is located at, the venue of the court.
13. Art.268 reads, ‘In the case of an application or request for recognition and enforcement of a legally effective judgment or decision of a foreign court, the people's court shall, after examining it in accordance with the international treaties concluded or acceded to by the People's Republic of China or with the principle of reciprocity and arriving at the conclusion that it does not contradict the basic principles of the law of the People's Republic of China nor violates State sovereignty, security and social and common goods of the country, recognise the validity of the judgment or written order, and, where [the judgment or decision] are to be enforced, issue a writ of enforcement in accordance with the relevant provisions of this Law, if the application or request contradicts the basic principles of the law of the People's Republic of China or violates State sovereignty, security and social and common goods of the country, the people's court shall recognise and enforce it.’
14. Art.18 of PRC, the Basic Law of Hong Kong SAR.
15. The court system of the PRC may be illustrated as follows: the Supreme People's Court (SPC) is the court of final appeal of China but it also adjudicates cases which it regards fall within its jurisdiction; under the SPC there are 30 Higher People's Courts at the provincial level; further, under each HPC there are several to dozens of Intermediate People's Courts (IPC); again under each IPC, there are several to dozens of Basic-level People's Courts (BPC) that the SPC may establish from time to time, but normally in line with the administrative zoning.
16. It should be noted, in this context, that, according to Art.158 of PRC, the Basic Law of Hong Kong SAR, the power of interpretation is vested in the Standing Committee of the National People's Congress. The Hong Kong SAR courts are only authorised to interpret, in adjudicating cases, the provisions of the Basic Law which are within the limits of (he authority of the Hong Kong SAR. It is not clear whether the enforcement of judgments falls within the scope of ‘adjudicating cases’ for the purpose of interpretation.
17. Under the current legal framework in mainland China, the Ministry of Justice is responsible for negotiation of judicial assistance agreements with foreign countries. However, it has no power to issue orders that the courts must follow. It is up to the Supreme People's Court (SPC) to issue orders binding to the courts at all levels across the country. Since the Hong Kong SAR is not likely to be treated as a foreign entity, and because of practical considerations, it is better for the SPC to issue such a directive.
18. On 30 Mar. 1999 the Arrangement regarding Mutual Requests for Assistance in the Service of Juridical Documents between the Mainland and Hong Kong SAR was promulgated respectively by the Supreme People's Court of the PRC and the Higher Court of Hong Kong at the same time. It covers only the mutual assistance in service of juridical documents between the courts of the Hong Kong SAR and the mainland, leaving open the question of mutual assistance in enforcement of judgments. Further negotiation is reportedly being held for the purpose of mutual assistance in enforcement of judgments. The arrangement is by nature of an agreement between the SPC and the Higher Court of Hong Kong. However, it was viewed as an internal directive in the accompanying explanatory speech by a Vice President of the SPC. The arrangement is similar to the approaches embodied in the second and third suggested alternatives in this article.