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How to Write an Application for Enforcing Foreign Judgment in China - Breakthrough for Collecting Judgments in China Series (VI)

Sun, 24 Apr 2022
Categories: Insights
Editor: C. J. Observer

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Key takeaways:

  • The 2021 Conference Summary outlines what to include in an application for enforcing a foreign judgment in China.
  • Apart from the basic information about the litigants and the foreign judgment, the application should also specify the status and location of the respondent’s property, and the status of enforcement of the foreign judgment outside China.


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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 36 of the 2021 Conference Summary, outlining what to include in an application for enforcing a foreign judgment in China.

Texts of the 2021 Conference Summary

Article 36 of the 2021 Conference Summary [The Application]:

“The application shall specify:

1. The applicant and the respondent. If the applicant or respondent is a natural person, the application shall specify his/her name, gender, date of birth, nationality, domicile and ID number; if it is a legal person or an unincorporated organization, it shall indicate its name, domicile, and the name and position of its legal representative or representative;

2. The name of the judgment-making foreign court, the case number of the judgment, the commencement date of the proceedings and the date of judgment;

3. Specific request and grounds;

4. The status and location of the respondent’s property as well as the status of the enforcement of the judgment outside China; and

5. Other matters needed clarification.

Interpretations

I. The identity information of the litigants 

In addition, Chinese courts will usually request the applicant to provide the identity certificate thereof, which shall be notarized in the country where the identity certificate is issued and authenticated by the relevant Chinese Embassy or consulate in that country.

II. Information of the foreign judgment

The application should include the name of the judgment-making foreign court, the case number of the judgment, the commencement date of the proceedings and the date of judgment.

In addition, the applicant had better make special clarification of the following two matters:

1. Whether the judgment is made in absentia; and

2. Whether the judgment has come into effect.

For details on how the applicant can prove these two matters, see our post ‘What Documents to Prepare for Enforcing Foreign Judgment in China’. 

III. Request and grounds for the application

In respect of the request, the application shall specify which part of the foreign judgment the applicant wants the Chinese court to recognize and enforce. If the application is for both recognition and enforcement, the applicant shall specify the specific the amount of the monetary obligation it seeks to enforce.

In terms of grounds, the application should indicate why the Chinese court should recognize and enforce the foreign judgment. For example, it is better to include the following grounds,

1. Whether there are relevant international treaties or bilateral agreements between China and the country where the judgment is rendered, or whether reciprocity exists between China and the said country;

2. The foreign judgment does not fall under any of the circumstances specified in these treaties or bilateral agreements that will justify the refusal of recognition and enforcement of the judgment, if there are the foregoing international treaties or bilateral agreements; 

3. The foreign judgment does not fall under any of the circumstances specified in the conference summary that will justify the refusal of recognition and enforcement of the judgment, if there is reciprocity; and

4. The foreign judgment does not violate the basic principles of Chinese law and the public interest of China.

For a detailed discussion of the said matters, see our other related posts.

IV. Status of enforcement of the foreign judgment

1. No duplication of enforcement

The applicant also needs to state whether the foreign judgment has already been enforced, in full or in part, to show that the application will not bring duplication of enforcement. Duplication of enforcement means re-recognition and re-enforcement by the Chinese court of any part of the foreign judgment that has been enforced.

2. No violation of the settlement agreement during the enforcement procedure

If the applicant has reached a settlement agreement with the respondent on enforcement of the foreign judgment, the applicant’s application for recognition and enforcement of the foreign judgment to the Chinese court should not conflict with such settlement agreement.

For instance, if the applicant has agreed to waive part of the respondent’s debt in the settlement agreement, the applicant shall not apply again to the Chinese court to enforce the debt.

V. Status and location of the respondent’s property

1. Availability of the property

The application shall generally state whether the respondent has any property and what kind of property it is. This is because the availability of the property determines the prospect of enforcement proceedings.

Under Chinese law, if the court finds that the respondent has no executable property after the enforcement is initiated, the enforcement will be terminated. Of course, if the applicant finds that the respondent has executable property thereafter, the applicant may apply for enforcement again.

The applicant is allowed to roughly outline the possible status of the respondent’s property and, after the enforcement is initiated, request the court to conduct a more specific investigation of the respondent’s property. The court can take extensive means to obtain more accurate information about the property.

2. Location of the property

The location of the property determines whether the Chinese court accepting the application has jurisdiction over it.

According to the jurisdiction rules, if you apply for recognition and enforcement of a foreign judgment in China, you should submit the application to the court at the place where the respondent is domiciled or the place where the respondent’s property is located. 

If the respondent is domiciled outside the jurisdiction of that court, the Chinese court will only determine the relevant jurisdiction based on the location of the respondent’s property. In this case, you will need to prove that the property is located somewhere in China.

 

 

Photo by Max Zhang on Unsplash

Contributors: Guodong Du 杜国栋 , Meng Yu 余萌

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