How to get a foreign judgment recognized and enforced in China?
Updated: Nov 18, 2020
Imagine this scenario:
There is a civil judgment issued by a foreign court regarding a Contract of Sale, where one of the contracting parties is a company located in China, whose property is subject to enforcement.
Two steps are necessary for a civil judgment issued by a foreign court to gain its force of law in Chinese mainland. To break it down, such judgment has to be recognized by a court having jurisdiction at first before enforcement, although in the legal practices these two steps proceed simultaneously. Plus, civil judgments need to meet some requirements by laws to qualify for recognition. So here come three questions: how to identify a court in Chinese mainland with jurisdiction? How to figure out whether the judgment will be recognized by Chinese mainland court? In the end, what materials are required for the recognition and enforcement processes? We provide you following legal analyses, you could straight skip to the conclusions to save your energies.
First, we are looking at the identification of court with jurisdiction, which determines which court you shall apply for recognition and enforcement.
According to Article 281 of Civil Procedure Law of PRC, parties to foreign judgments shall submit their applications directly to the intermediate people’s court with jurisdiction for recognition and enforcement regarding the said judgments.
The underlying message is that this identification issue is equally treated as those domestic enforcement cases and there are no special requirements. Therefore, next we should refer to Article 244 of Civil Procedure Law. This term stipulates that:
“Parts with regard to property within civil judgments with force of law shall be enforced by the court who made the first-instance judgment, or the court of the same level as the court of first instance in which the property is located.”
Conclusion: Combining the above two terms, the intermediate court in the location of property is the proper one on any occasion.
Second, after we have identified the court, we need to know if the judgment will qualify for recognition and enforcement.
To start with, according to Article 282 of Civil Procedure Law, the contents of judgment shall not contradict with China’s national sovereignty, security, public interests and fundamental principles of laws. This is easy to check.
Subsequently, there are two standards for a foreign judgment to pave its way between Chinese mainland: the bilateral civil judicial assistance treaties between the issuing country and China will give the judgment a pass to recognition and enforcement. If there is not any civil judicial assistance treaty reached between the two, which is usually the case, you can still turn to the principle of reciprocity. In fact, that kind of treaties only existed between China and a limited number of countries, including Ethiopia, Brazil, Kuwait, Algeria, Peru, UAE(United Arab Emirates), North Korea, South Korea, Argentina, Lithuania, Tunisia, Vietnam, Laos, Singapore, Uzbekistan, Egypt, Morocco, Tajikistan, Hungary, Cyprus, Belarus, Bulgaria, Thailand, Kazakhstan, Cuba, Russia, Spain, Ukraine, Turkey, Italy, Romania, Mongolia. Many countries are not listed.
You may ask what is “principle of reciprocity”? To help you understand this terminology, here is a judgment issued by Wuhan Intermediate People’s Court, which is deemed as the first case where a Chinese mainland court recognized and enforced a business judgment made by an American court.
As mentioned above, bilateral conventions don’t work here as there is not any between the issuing country, America, and China. However, the Wuhan court unprecedently applied the principle of reciprocity, saying that in consideration of the fact that American courts used to recognize and enforce civil judgments made by Chinese courts, the principle of reciprocity existed between the two countries, it was thereby reasonable to recognize as well as enforce judgements from America.
In summary, as we can see on the judgment analysis written by the Wuhan court, if you could submit any evidence that can prove the issuing country used to recognize even a single judgment from Chinese mainland, there is a considerable opportunity for a judgment from the said country to be recognized and enforced.
Third, how to prepare essential materials?
Pursuant to the Interpretations of Supreme Court regarding Civil Procedure Law, Article 543, applicants shall submit an application letter affixed with the original official judgment, or a copy which has been authenticated to be conforming. Either copy or official judgement you selects to hand in, a Chinese translation version is necessary.
Moreover, please note that it is preferred to apply for recognition and enforcement at the same time. Compared to doing them one-by-one, it’s more time-saving.
In addition, if you are bad luck and your applications are turned down, you can choose to file a lawsuit in China. Contact us immediately to get detail information and guidance on lawsuit.
Larry Zhou, Partner
Landing Law Offices China
Mobile& WhatsApp: +86 13342931852
Linkedin: Larry Zhou