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What Documents to Prepare for Enforcing Foreign Judgment in China - Breakthrough for Collecting Judgments in China Series (V)

Sun, 17 Apr 2022
Categories: Insights
Editor: C. J. Observer

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Key Takeaways:

  • The 2021 Conference Summary provides the documents checklist one needs to prepare for enforcing a foreign judgment in China.
  • Application documents include the original or certified true copy of the foreign judgment, and evidence proving that the judgment is final and conclusive and that the foreign court has legitimately summoned the absentee if the judgment is made in absentia.
  • For documents formulated overseas, it is required to have them notarized in the country where the judgment is rendered and authenticated by the relevant Chinese Embassy or consulate in that country.

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China published a landmark judicial policy on the enforcement of foreign judgments in 2022, embarking on a new era for judgment collection in China.

The judicial policy is the “Conference Summary of the Symposium on Foreign-related Commercial and Maritime Trials of Courts Nationwide” (hereinafter the “2021 Conference Summary”, 全国法院涉外商事海事审判工作座谈会会议纪要) issued by the China’s Supreme People’s Court (SPC) on 31 Dec. 2021.

As part of the ‘Breakthrough for Collecting Judgments in China Series’, this post introduces Article 35 of the 2021 Conference Summary, addressing the documents one needs to prepare when applying for enforcing a foreign judgment in China.

Texts of the 2021 Conference Summary

Article 35 of the 2021 Conference Summary [Application Documents]:

“An applicant to apply for recognition and enforcement of a judgment or ruling of a foreign court shall submit a written application accompanied by the following documents:

(1) the original or certified true copy of the judgment;

(2) documents proving that the judgment has come into effect;

(3) documents proving that the foreign court has legitimately summoned the absentee if the judgment is made in absentia.

If the judgment or ruling has already stated the circumstances under Items 2 and 3 of the preceding paragraph, other supporting documents are not necessarily required to be submitted anymore.

Where the judgment and other documents submitted by the applicant are in a foreign language, they shall be accompanied by a Chinese version stamped with the official seal of the translation institution.

Where the documents submitted by an applicant are made outside the territory of China, the applicant shall go through the procedures of notarization and authentication, or go through the certification procedures as required by relevant international treaties signed between China and the said country.”

Interpretations

1. You need to file the original or a certified true copy.

It means that you cannot simply file a duplicate of the judgment. In fact, as we have noticed, in some cases like Tan Junping et al v. Liu Zuosheng et al (2020), the Chinese court dismisses the application on the grounds that the applicant only submits a duplicate of the judgment.

You need to provide an original of the foreign judgment or a certified true copy thereof. Therefore, you’d better ask the court rendering the judgment in advance for a sufficient number of originals or copies.

2. You need to provide documents certifying the judgment has come into effect

You will need to prove to the Chinese court that the judgment is conclusive and final. Please refer to our interpretation of Article 43 of the Summary [Situations where authenticity and finality of judgment cannot be confirmed].

3. Where the judgment is made in absentia, you will need to prove that the foreign court has legitimately summoned the absentee.

You will need to prove that the party who didn’t appear in the court had been subpoenaed by the foreign court and that a writ of summons had been served properly on the said party.

If the absentee is domiciled in the country where the judgment is rendered, you will need to prove that the court rendering the judgment has served the court papers according to the law of the country where the court is located.

If the absentee is domiciled in China, you will need to prove that the court rendering the judgment has served the court papers pursuant to the treaty concluded between China and the said country, such as the Hague Service Convention or a judicial assistance treaty between China and the said country.

If serving the court papers to China, please do not send it by post. In accordance with the reservation China made upon accession to the Hague Service Convention, as well as the provisions in most of the mutual legal assistance agreements to which China is a party, China does not accept service by post.

4. The best way is to write it clearly in the judgment

It is best if the judgment states whether it has become effective, and whether the party who didn’t appear in the court had been lawfully summoned.

Because it is sufficient for the court, as the competent authority, to prove the above two factors, which you don’t have to prove again.

5. The Chinese translation

Under Chinese laws, if any document in litigation is written in a foreign language, it must be translated into Chinese.

We recommend that you look for an agency in China that specializes in the translation of legal documents. We have found in many cases that Chinese judges often have difficulties in understanding the Chinese translations issued by the translation agencies engaged by the parties outside of China.

6. Notarization and Authentication

It is not easy for courts to determine the authenticity of documents formulated overseas. China is not an exception. Chinese courts, therefore, rely on notarization and authentication to assist in their determination.

Consequently, the above documents are better to be notarized in the country where the judgment is rendered and authenticated by the relevant Chinese Embassy or consulate in that country.

 

Photo by Max Zhang on Unsplash

Contributors: Guodong Du 杜国栋 , Meng Yu 余萌

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