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Recognition and Enforcement of Foreign Judgments in China: Rules, Interpretation and Practice
Published online by Cambridge University Press: 21 May 2009
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The rules of the People's Republic of China (hereinafter: China) governing the recognition and enforcement of foreign judgments are found in the Civil Procedural Law. Two articles lay down the conditions for recognition and the defenses for non-recognition, while 30 other articles relate to the execution of foreign judgments. Since the provisions of this Law are too general and cannot meet practical needs, the Supreme People's Court of China (hereinafter: the Supreme Court) has made some interpretations in this regard. Two documents are pertinent to the present study. The first is the ‘Opinions of the Supreme People's Court Regarding Several Questions on the Implementation of the Civil Procedural Law’.(hereinafter: 1992 Opinions). The second is the ‘Regulation of the Supreme People's Court Regarding Certain Questions on the Execution of Judgments by the People's Courts (for Trial Implementation)’ (hereinafter: 1998 Regulation).
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References
2. I.e., Zhonghua Renmin Gongheguo Minshi Susongfa, which was promulgated in 1991 and provides procedures for the adjudication of both domestic and foreign-related cases by Chinese courts.
3. I.e., Arts. 267–268 of the Civil Procedural Law.
4. I.e., Arts. 207–236 of the Civil Procedural Law.
5. I.e., Zuigao Renmin Fayuan Guanyu Shiyong ‘Zhonghua Renmin Gongheguo Minshi Susongfa’ Wenti De Yijian, which was rendered by the Judicial Committee of the Supreme Court in 1992.
6. I.e., Zuigao Renmin Fayuan Guanyu Renmin Fayuan Zhixing Gongzuo Ruogan Wenti De Guiding (Shixing). It was drafted in 1998 by the Judicial Committee of the Supreme Court, and came into effect on 18 July 1998.
7. Those foreign states are: Belgium, Bulgaria, Byelorussia, Canada, Cuba, Cyprus, Egypt, France, Greece, Hungary, Italy, Kazakhstan, Kirghizstan, Mongolia, Morocco, Poland, Romania, Russia, Spain, Singapore, Tadzhikistan, Thailand, Turkey, Ukraine, Uzbekistan and Vietnam. There are two agreements between China and Bulgaria, one on civil matters and the other on criminal matters. Cf., the relevant notices of the Standing Committee of the National People's Congress, in Gazette of the National People's Congress (Quanguo Renda Gongbao) (1987–1998) and Gazette of the State Council (Guowuyuan Gongbao) (1987–1998). See also Liang Shuying, ‘International Judicial Assistance in China’ (Zhongguo Duiwai Sifa Xiezhu), in Tribune of Political Science and Law (Zhengfa Luntan) (1996–5) pp. 89–90, fn. 13. The main contents of these agreements are: General Rules, Service of Legal Documents, Taking of Evidence, Exchange of Information, and Execution of Judgments and Arbitral Awards. Most of these agreements are limited to civil and commercial matters, and a few of them concern criminal matters as well.
8. They are those with Poland (took effect on 3 February 1988), Mongolia (29 October 1990), Romania (22 January 1993), Russia (14 November 1993), Kazakhstan (11 July 1995), Byelorussia (29 November 1993), Ukraine (19 January 1994), Cuba (26 March 1994), Egypt (31 May 1995), Canada (1 July 1995), Bulgaria (30 June 1995 for the one on civil matters, and 27 May 1996 for the other on criminal matters), Cyprus (30 October 1995), Spain (1 January 1994), France (8 February 1988), Italy (1 January 1995), Kirghizstan (26 September 1997), Greece (29 June 1996), Turkey (26 October 1995), Hungary (21 March 1997), Thailand (6 July 1997), Uzbekistan (29 August 1998) and Tadzhikistan (2 September 1998). See Liang Shuying, loc. cit. n. 7, at pp. 89–90, fn. 13, and the relevant notices of the Standing Committee of the National People's Congress, in Gazette of the National People's Congress (1988–1998).
9. Art. 268 of the Civil Procedural Law is more essential. It stipulates that: ‘Having received a request for the recognition and enforcement of a legally effective judgment or ruling of a foreign court, a People's Court shall review such judgment or ruling pursuant to international treaties concluded or acceded to by China or in accordance with the principle of reciprocity. If, on such review, the People's Court considers that such judgment or ruling neither contradicts the basic principles of Chinese law nor violates China's state sovereignty, security or social public interests, it shall rule to recognize its effectiveness. If enforcement is necessary, it shall issue an order of execution, which must be implemented in accordance with relevant provisions of the present Law. If such judgment or ruling contradicts the basic principles of Chinese law or violates China's state sovereignty, security or social public interests, the People's Court shall refuse to recognize and execute the judgment or ruling.’
10. It means that the judgment or ruling has already come into effect and is binding.
11. Cf., Fei Zhongyi and Tang Chenyuan, eds., Theory and Practice of Judicial Assistance in China (Zhongguo Sifa Xiezhu Lilun Yu Shijian) (Beijing, Publishing House of the People's Courts 1993) pp. 258, 267, 292, 303, 320 and 329.
12. Cf., Art. 22 of the treaty with Egypt, Art. 21 of the treaty with Spain, Art. 26 of the treaty with Cyprus, and Art. 22 of the treaty with Italy.
13. Cf., Fei Zhongyi and Tang Chengyuan, op. cit. n. 11, at pp. 258, 267, 292, 303, 320 and 329.
14. Ibid., p. 303.
15. See supra n. 12.
16. Ibid.
17. Cf., Art. 268 of the Civil Procedural Law. For the contents of this Article, see supra n. 9.
18. Cf., Art. 141 of the Civil Procedural Law, which reads as follows: ‘Judgments and rulings made by the Supreme People's Court, and judgments and rulings that may not be appealed according to the law and that have not been appealed within the prescribed time-limit, shall be legally effective.’ A ‘legally effective judgment or ruling’ is thus factually final and conclusive.
19. See Art. 8 of the Regulation of the Supreme People's Court Regarding the Procedure for the Recognition of a Foreign Divorce Judgment at the Application of a Chinese Citizen (Zuigao Renmin Fayuan Guanyu Zhonguo Gongmin Shenqing Chengren Waiguo Fayuan Lihun Panjue Chengxu Wenti De Guiding, 5 July 1991).
20. See Art. 147 of the Civil Procedural Law. Generally, the period within which an appeal may be lodged is 15 days (judgment) or 10 days (ruling) from the date on which the judgment or ruling was served (Art. 147, section 2). For a foreign-related case, the party who has no domicile within China may do so within 30 days (for both judgment and ruling). That party may request an extension of the period if he is unable to file an appeal within the prescribed period. The court decides whether to grant it. See Art. 249 of the Civil Procedural Law.
21. As a general principle, in trying civil cases, the judgment at a second instance is final. See Art. 10 of the Civil Procedural Law.
22. Cf., Art. 141 of the Civil Procedural Law.
23. The judgments and rulings given by the court of first instance, which pertain to the special cases listed in Arts. 160–161 of the Civil Procedural Law, are final and cannot be appealed. Such special cases are those concerning voter qualifications, the declaration of a person as missing or dead, the determination of a citizen as having no capacity for civil acts or as having limited capacity for civil acts, or the determination of property without an owner. Chapter 15 of the Civil Procedural Law sets forth the special procedure for the adjudication of these types of cases.
24. For details, see Arts. 177–185 of the Civil Procedural Law and paras. 199–200 of the 1992 Opinions.
25. See chapter 16 of the Civil Procedural Law.
26. Ibid., Art. 178.
27. Ibid., Art. 179.
28. Ibid., Art. 177(1).
29. Ibid., Art. 177(2).
30. Ibid.
31. Cf., Art. 185 of the Civil Procedural Law.
32. See Art. 183 of the Civil Procedural Law and paras. 199–200 of the 1992 Opinions. The case protested against by a public prosecutor must be retried by the court. See Art. 186 of the Civil Procedural Law.
33. For all practical purposes, the concept of ‘fraud’ is part of public policy in civil law countries. China takes the same position. It is thus not provided for as a separate ground for non-recognition of foreign judgments in Chinese law.
34. Cf., Art. 268 of the Civil Procedural Law.
35. Cf., Fei Zhongyi and Tang Chengyuan, op. cit. n. 11, at pp. 122, 247, 258, 267, 292, 303, 320 and 329.
36. For example, Art. 150 of the General Principles of the Civil Law (Minfa Tongze, 1987) and Art. 4 of the Law on Contracts Involving Foreign Parties (Shewai Jingji Hetong Fa, 1985). In these laws, it is used as a ground for excluding the application of foreign law.
37. I.e., the principles laid down in chapter 1 of the Civil Procedural Law (Arts. 1–17). Cf., for example, Ma Yuan, Revision and Application of the Civil Procedure Law (Minshi Susongfa De Xiugai Yu Shiyong) (Beijing, Publishing House of the People's Courts 1991) p. 298.
38. Cf., the Reply of the Supreme People's Court, in Judicial Interpretation of the Supreme Court of the People's Republic of China (Zhonghua Renmin Gongheguo Zuigao Renmin Fayuan Sifa Jieshi), Vol. 7, loose-leaf, edited by the Supreme Court (Beijing, Law Publishing House and Publishing House of the People's Court 1997), para. 6–3–1–8.1, p. 1, and Hu Zhenjie, ‘Correct Application of Public Policy Reservation in Private International Law: Commentaries on Some Related Chinese Cases’ (Cong Wo Guo Fayuan De Jige Anli Tan Guojisifa Shang Gonggong Zhixu Baoliu De Zhengque Yunyong), in Tribune of Political Science and Law (1992–5) p. 80. It is unclear whether the judgment was recognized or not.
39. Cf., the Reply of the Supreme People's Court, op. cit. n. 38, para. 6–3–1–8.2, p. 1.
40. Cf., the Reply of the Supreme People's Court, para. 6–3–1–8.3, p. 1. For an analysis of the case, cf., Hu Zhenjie, loc. cit. n. 38, at p. 80.
41. It is a disputed case. For an analysis, cf., Hu Zhenjie, loc. cit. n. 38, at pp. 80–82.
42. See Art. 22(4) of the Sino-French Agreement on Judicial Assistance in Civil and Commercial Matters.
43. Cf., ‘Information Concerning the Hague Conventions on Private International Law’, in 43 NILR (1996) pp. 71 and 73. When China ratified the Convention, it made reservations to Arts. 3, 10, 15 and 16. See, the relevant notice of the Standing Committee of the National People's Congress, in Gazette of the National People's Congress (1991) p. 213.
44. Ibid.
45. Where an interested party's application is refused because of the absence of a conventional obligation or reciprocity, the only remedy for him is to bring a new action in a Chinese court with competent jurisdiction. Cf., para. 318 of the 1992 Opinions. Nevertheless, reciprocity is not required for the recognition of foreign divorce judgments. Cf., Arts. 1 and 12 of the Regulation of the Supreme People's Court Regarding the Procedure for the Recognition of a Foreign Divorce Judgment at the Application of a Chinese Citizen.
46. For instance, the courts of some states recognize and enforce Chinese judgments, but those of other states refuse to do so.
47. Cf., E.F. Scoles and P. Hay, Conflict of Laws, 2nd edn. (St. Paul, Minnesota, West Publishing Co. 1992) pp. 768 and 1000.
48. Cf., Arts. 267–268 of the Civil Procedural Law.
49. The principle established by the US Supreme Court in Hilton is correct in this regard. It refused to enforce a French judgment against two US citizens on the grounds that, if the facts were reversed, French courts would not enforce the judgment of an American court. See Hilton v. Guyot, 159 United States Reports (1895) pp. 227–228. A factual reciprocity was thus not required by the Court. If a similar US judgment would be enforced by a French court, the French judgment would have been executed in the United States on the basis of reciprocity.
50. Cf., Art. 27 of the Swiss Statute of Private International Law.
51. Emphasis added. Cf., Haopei, Li, An Introduction to the International Procedural Law (Guoji Minshi Susongfa Gailun) (Beijing, Law Publishing House 1996) p. 139.Google Scholar
52. See, for instance, Ruibai, Xu, Shuhua, Tang and Zhipei, Juang, Practice of Judicial Procedures of Civil Cases (Beijing, Epoch Publishing Co. 1993) pp. 356–358, and Li Wang, ‘Reciprocity Rule in the Recognition and Enforcement of Foreign Judgments’ (Waiguo Fayuan Panjue De Chengren Yu Zhixing Tiaojian Zhong De Huhui Yuanze), in Tribune of Political Science and Law (1999–2) p. 94.Google Scholar
53. Cf., Li Haopei, op. cit. n. 51, at p. 140.
54. For details, cf., the Report on the case, in Gazette of the Supreme People's Court (1996–1) p. 29. For an analysis of the case, see China Institute of the Applied Law of the Supreme People's Court, Selected Cases of the People's Courts 1992–1996 (Renmin Fayuan Anli Xuan) (Beijing, Publishing House of the People's Courts 1997) pp. 2170–2172, and Li Wang, loc. cit. n. 52, at pp. 94–95.
55. Cf., para. 306 of the 1992 Opinions.
56. Cf., the bilateral treaties between China and Poland (Art. 20), Spain (Art. 22) and Russia (Art. 20) respectively.
57. Cf., Arts. 19–21 of the Regulation of the Supreme People's Court Regarding the Procedure for the Recognition of a Foreign Divorce Judgment at the Application of a Chinese Citizen.
58. Cf., Art. 21(5) of the Sino-Italian Agreement on Judicial Assistance.
59. Cf., Art. 22(6) of the Sino-Spanish Agreement on Judicial Assistance, Art. 20(5) of the Sino-Polish Agreement on Judicial Assistance, Art. 18(4) of the Sino-Mongolian Agreement on Judicial Assistance, Art. 22(4) of the Sino-Romanian Agreement on Judicial Assistance, and Art. 20(4) of the Sino-Russian Agreement on Judicial Assistance.
60. Cf., for example, the bilateral treaties between China on the one hand, and France, Spain, Poland and Russia on the other.
61. Cf., Art. 267 of the Civil Procedural Law.
62. Ibid.
63. Cf., para. 1 of the Notice of the Supreme People's Court Regarding the Implementation of the Sino-Foreign Agreements on Judicial Assistance (Zuigao Renmin Fayuan Guanyu Zhixing Zhong Wai Sifa Xiezhu Xieding De Tongzhi, 1988), in Gazette of the Supreme People's Court (1988–1) p. 21.
64. There is a special instrument on this issue, i.e., Notice of the Supreme People's Court, the Foreign Ministry and the Ministry of Justice on Certain Questions Regarding the Service of Judicial Documents Through Diplomatic Channels (Zuigao Renmin Fayuan, Waijiao Bu, Sifa Bu Guanyu Tongguo Waijiao Tujing Songda Sifa Wenshu Ruogan Wenti De Tongzhi, 1986), in Judicial Inter-pretation of the Supreme People's Court of the People's Republic of China, op. cit. n. 38, para. 6–3–1–4.13, pp. 1–3.
65. Cf., para. 319 of the 1992 Opinions, and para. 3 of the Notice of the Supreme People's Court Regarding the Implementation of the Sino-Foreign Agreements on Judicial Assistance.
66. Cf., the Reply of the Supreme People's Court, in Gazette of the Supreme People's Court (1986-l)pp. 21–21.
67. Cf., the Reply of the Supreme People's Court, in Gazette of the Supreme People's Court (1986–3) p. 14.
68. Cf., supra n. 43.
69. Cf., Art. 204 of the said Law.
70. See Arts. 207 and 267 of the Civil Procedural Law.
71. Cf., Art. 207(1) of the Civil Procedural Law.
72. An ordinary Chinese court usually consists of a civil division, one or two criminal divisions, an economic division and an administrative division. The basic courts and intermediate courts have execution divisions. Cf., Art. 209 of the Civil Procedural Law.
73. The 1998 Regulation has, however, listed the documents that should be attached to the request for enforcement. This instrument applies to the enforcement of both domestic and foreign judgments. See para. 20 of the 1998 Regulation and infra section 4.1.1. Therefore, it is unclear whether the same documents should be submitted for the recognition of the foreign judgments that do not need to be enforced.
74. Cf., Arts. 3–4 and 8–9 of the Regulation of the Supreme People's Court Regarding the Procedure for the Recognition of a Foreign Divorce Judgment at the Application of a Chinese Citizen. In the Sino-foreign agreements on judicial assistance, all those documents are also required. See, for example, Art. 22 of the Sino-French Treaty, Art. 24 of Sino-Italian Treaty, etc.
75. Cf., Art. 6 of the Regulation of the Supreme People's Court Regarding the Procedure for the Recognition of a Foreign Divorce Judgment at the Application of a Chinese Citizen.
76. Ibid., Art. 7.
77. Ibid.
78. Cf., Arts. 7, 12 and 15 of the Regulation of the Supreme People's Court Regarding the Procedure for the Recognition of a Foreign Divorce Judgment at the Application of a Chinese Citizen. Although this Regulation applies only to the recognition of foreign divorce judgments, the recognition of other foreign judgments may be examined in the like procedure, because the Regulation is but an interpretation of the general principles included in Arts. 267–268 of the Civil Procedural Law.
79. Cf., para. 2(5) of the 1998 Regulation.
80. Ibid., para. 2(5), and Arts. 216 and 267 of the Civil Procedural Law. Alternatively, a judge may refer a judgment or order of execution to an execution officer for enforcement. See Art. 216(1) of the Civil Procedural Law.
81. Art. 219 of the Civil Procedural Law provides that: ‘If either or both of the parties is or are individuals, the time-limit for applying for execution shall be one year. If both parties are legal persons or other organizations, such time-limit shall be 6 months. The time-limits provided for in the preceding paragraph commence from the last day of the time-limit for performance specified in the legal document. If the legal document provides for performance in stages, the time-limit shall commence from the last day of the time-limit for performance of each stage.’
82. Ibid.,.para.18.
83. Ibid.
84. Cf., Arts.207 and 267 of the Civil Procedural Law.
85. Cf., para.256 of the 1992 Opinions and para.15 of the 1998 Regulation.
86. Cf., para.17 of the 1998 Regulation.
87. Ibid., para.24.
88. Ibid., para.26.
89. Ibid., para.39.
90. Ibid., paras.61–69.
91. Ibid., para.57.
92. Cf., Art.231 of the Civil Procedural Law and para.60 of the 1998 Regulation.
93. Cf., Art. 313 of the Criminal Law of the People's Republic of China (Zhonghua Renmin Gongheguo Xingfa, 1997).
94. Cf., para.107 of the 1998 Regulation.