Recognition and Enforcement of Foreign-Related Civil and Commercial Judgments in China （Part 1）

Introduction

By October 2021, China had entered into bilateral judicial assistance agreements with 39 countries on civil and commercial matters, 38 of which had come into effect , 34 of which stipulated the conditions for recognition and enforcement of judgments issued by foreign courts. In addition, Chinese courts have recognized and enforced commercial judgments of courts in Singapore and the United States under the principle of reciprocity. Judgments of Chinese courts have also been recognized and enforced by courts in Germany, Singapore, the United States, Israel and other countries. From 2018 to 2020, Chinese courts accepted 1,301 applications for recognition and enforcement of civil and commercial judgments by foreign courts, and concluded 1,226 cases, of which 1,142 were recognized and enforced, involving more than 30 countries.[1]

Content

Based on the principle of judicial sovereignty in international law, a judgment issued by a court can only be recognized and enforced in its own country. To become effective in other countries, it must be recognized and enforced by other countries. In July 2019, The Hague Conference on Private International Law adopted the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters（hereinafter referred to as “Convention”）, China had sent senior judges to participate in the drafting and negotiation of the Convention for many times and signed the Convention (only for confirming the text of it); the Convention is still waiting to be formally ratified to come into force in China.

Before the Convention comes into force in China, there are two bases for Chinese courts to recognize and enforce foreign judgments: (1) Bilateral judicial assistance treaties signed between China and other countries; (2) Reciprocity principle.

1. Current Situation of Legal Norms

Recognition and enforcement of foreign judgments in China are mainly regulated by the Civil Procedure Law of the People’s Republic of China (hereinafter referred to as “the Civil Procedure Law”) and its judicial interpretations.

Article 288 of the Civil Procedure Law provides: Where an effective judgment or ruling of a foreign court requires recognition and enforcement by a people’s court of the People’s Republic of China, a party may apply directly to the intermediate people’s court of the People’s Republic of China having jurisdiction for recognition and enforcement, or apply to the foreign court for the foreign country to request recognition and enforcement by the people’s court in accordance with the provisions of an international treaty concluded or acceded to by the People’s Republic of China or under the principle of reciprocity.

Article 289 of the Civil Procedure Law provides: After examining an application or request for recognition and enforcement of an effective judgment or ruling of a foreign court……, a people’s court shall issue a ruling to recognize the legal force of the judgment or issue an order for enforcement as needed to enforce the judgment or ruling according to the relevant provisions of this law if the people’s court deems that the judgment or ruling does not violate the basic principles of the laws, the sovereignty, security, and public interest of China PRC. [Otherwise,] the people’s court shall not grant recognition and enforcement.

To sum up, there are three basic conditions for Chinese Courts to recognize and enforce foreign civil and commercial judgments:

1. The foreign civil and commercial judgment has taken legal effect is, that is, a definitive judgment;
2. China has concluded or joined an international treaty on the recognition and enforcement of civil and commercial judgments with the foreign country, or there is a reciprocal relationship; and
3. The recognition and enforcement of the foreign civil and commercial judgment does not violate the basic principles of the law or national sovereignty, security or social and public interests.

The procedural provisions on recognition and enforcement of foreign judgments also include:

1. The applicant could be a party to the case or a foreign court;
2. The court of application is an intermediate people’s court with jurisdiction;
3. Application materials should be translated into Chinese language or other texts stipulated by international treaties;
4. The form of examination shall be in accordance with relevant provisions of Chinese laws;
5. Recognition and enforcement of foreign court judgments shall be made in the form of an enforcement order.

The Supreme People’s Court’s Interpretation on the Application of the Civil Procedure Law of the People’s Republic of China (2020) (hereinafter referred to as “the Interpretation of Civil Procedure Law”) provides the following supplementary interpretation on the recognition and enforcement of judgments of foreign courts:

First, according to Article 543, the applicant shall submit a written application, to which the original or the certified error-free duplicate and Chinese translation of the effective judgment or ruling of the foreign court shall be affixed. If the judgment rendered by the foreign court is a default judgment, the applicant shall, at the same time, submit the certification documents on a legal summons from the foreign court, unless the judgment has expressly stated the fact.

Second, according to Article 548, the people’s court shall form a collegial bench to examine the case, and the people’s court shall serve the written application upon the respondent. The respondent may state its or his/her opinions.

1. The Relationship between Recognition and Enforcement

Recognition and enforcement of foreign judgments is the general term of a series of legal procedures which force the debtors to fulfill the obligations under the judgments by taking enforcement measures of Chinese enforcement agencies, in order to realize the creditors’ civil rights confirmed by foreign judgments. The procedure of recognition and enforcement of foreign judgments is divided into “recognition” and “enforcement.” Recognition and enforcement are two concepts closely related but significantly different. Recognition is the premise of enforcement, while enforcement is the goal of recognition. Recognition of a foreign judgment means that a foreign judgment has been examined by a Chinese judicial authorities and recognized as having the same legal effect as a Chinese judgment. Enforcement of a foreign judgment refers to a foreign judgment whose validity has been recognized by a ruling of a people’s court, which can be used as the basis for enforcement, in order to enforce in accordance with the Chinese procedure law.

[1] China New, shttps://www.chinanews.com.cn/gn/2021/10-27/9596195.shtml.