“Yes”, said a local Chinese court in Li Qiang v. Ding Fengjing (2018). The answer led to the refusal of recognition and enforcement of a Singapore judgment for the matrimonial property.
On 16 Mar. 2018, in Li Qiang v. Ding Fengjing,(2018) Lu 14 Xie Wai Ren No. 1 ((2018)鲁14协外认1号), Dezhou Intermediate People’s Court of China (“Dezhou Court”) ruled against the recognition and enforcement of a Singapore judgment on the division of matrimonial property, on the ground of lack of reciprocity, for the court held that China and Singapore only established reciprocity in the commercial field, but not in civil field yet, and the divorce was a civil case.
The Dezhou case occurred before the Supreme People’s Court (“SPC”) of China and the Supreme Court of Singapore singed the Memorandum of Guidance on Recognition and Enforcement of Money Judgments in Commercial Cases (“MOG”) on 31 Aug. 2018, but after China’s first recognition of a Singapore judgment ( (2016) Su 01 Xie Wai Ren No.3 Civil Ruling, Nanjing Intermediate People’s Court, 9 Dec. 2016).
(Note: One year later after the Dezhou case, in Oceanside Development Group Ltd. v. Chen Tongkao & Chen Xiudan (2019), the Wenzhou Intermediate People’s Court in Zhejiang Province rendered a civil ruling on 2 Aug. 2019 to recognize a Singapore judgment. This is not only the second Singapore judgment recognized by a Chinese court, but also marks the first time that a Singapore judgment has been recognized in China since the signing of MOG.)
The Dezhou Case involves three interesting questions: (1) whether the MOG only applies to money judgments in commercial cases; (2) whether courts need to distinguish reciprocity in the commercial field and that in the civil field; (3) whether Chinese courts will recognize the foreign judgment involving the disputes on real estates in China.
I. Case overview
The Claimant Li Qiang and Respondent Ding Fengjing are both Chinese citizens and registered their marriage in China.
The Claimant initiated a divorce action before Singapore Family Justice Court (“the Singapore Court”). The Singapore Court issued the final Judgment No. FC/D1355/2015 on 28 Oct. 2016 (“the Singapore Judgment”). The main contents of the judgments were:(1) dissolving the marriage; (2) the parties allocating their house in Singapore; (3) the Claimant and the Respondent each retaining other properties under their names.
Afterward, the Respondent brought a case before the Decheng District People’s Court of Dezhou, Shandong Province, requesting to further allocate the property under the Respondent’s name, i.e. the real estate in China.
On 5 Feb. 2018, the Claimant applied for recognition of the Singapore Judgment to Dezhou Court. Besides, the Claimant submitted the (2016) Su 01 Xie Wai Ren No.3 Civil Ruling rendered by Nanjing Intermediate People’s Court on 9 Dec. 2016 (“the Nanjing Case”), in which the Chinese court recognized a Singapore judgment for the first time.
The Respondent argued that: (1) the Claimant did not disclose his house in China to the Singapore Court, and thus the Singapore Court ruled that the Claimant and Respondent should each retained their property under their names without considering the real estate in China. Therefore, the Respondent had objections to the judgment; (2) in the Nanjing Case, the Chinese court had only recognized Singapore’s commercial judgments, but not Singapore’s civil judgments. Therefore, the Claimant did not prove that there existed reciprocity between China and Singapore in terms of civil cases such as marriage and divorce.
II. The Court’s opinion
Dezhou Court held that:
First, the judgment was a civil judgment for divorce rendered by a Singapore court.
Second, the Nanjing Case only proved that China and Singapore established reciprocity by recognizing judgments in a commercial case, to facilitate trade and investment among countries along the “Belt and Road”, but the reciprocity in the civil field concerning personal relationship between the two countries had not been proven yet.
Third, before the Claimant applied for the recognition of the Singapore Judgment, the Respondent had filed litigation to a Chinese court for allocating their matrimonial property.
Therefore, the Dezhou Court ruled: (1) to recognize the dissolution of marriage in the Singapore Judgment; and (2) to reject the part of the property distribution in the Singapore Judgment.
III. Our opinion
1. What is the relationship between the Dezhou Case and China-Singapore MOG?
The judgment of the Dezhou Case was rendered on 16 Mar. 2018. Five months after, on 31 Aug. 2018, the SPC and the Supreme Court of Singapore signed the MOG.
When rendering the judgment, the judge of Dezhou Court may not predict the cooperation between China and Singapore on the recognition and enforcement of judgments.
However, supposing the Dezhou Court rendered the judgment after the conclusion of the MOG, would there be a different result?
We notice that the MOG, as its name suggests, actually aims at money judgments in commercial cases. It seems that the civil judgments concerning the allocation of property for divorce cases do not fall within the scope of MOG. Therefore, Dezhou Court might still render the same ruling, ignoring the MOG.
We need to continue paying attention to how Chinese courts would react if they encountered cases of applying for the recognition and enforcement of Singapore civil judgments after the MOG is signed.
2. Whether courts need to distinguish reciprocity in the commercial field and civil field?
In Dezhou Case, the court raised a question: whether the determination of reciprocity is based on the category of cases. To be specific, if reciprocity was established in commercial cases, would it prove that reciprocity also existed in civil cases?
Dezhou Court held that the reciprocity established by a commercial case could not be applied in a civil case later, which indicated an attitude to fragment the reciprocity.
We have not observed similar questions in cases before, so we may not tell whether this opinion is the unique opinion of the Dezhou Court, or it is a general view held by Chinese courts.
In terms of the fragmentation of reciprocity, a similar debate can be found on the territorial scope of reciprocity. For instance, Chinese judges and scholars still differ on whether a reciprocal relationship has been established between China and the United States, because the United States is a federal country and each state has its own independent legal system.
In this regard, we are in favor of the view advocated by Judge Zhao Qianxi (赵千喜), the presiding judge in Wuhan who created the first precedent to recognize and enforce a US judgment, that fragmentation of reciprocity is undesirable. Instead of distinguishing different states or distinguishing the federal courts and the state courts, it is suggested that judges consider the US as a whole when determining the existence of reciprocity between China and the US.
Judge Zhao is not alone in this view. On 12 September 2018, a Chinese court in Shanghai recognized and enforced a U.S. judgment for the second time, indicating that any U.S. judgment, whether made by a federal court or a state court, may be recognized and enforced in China.
Note: See an earlier post, for a detailed discussion on how Chinese courts determine the de facto reciprocity in recognizing foreign judgments.
3. Whether Chinese courts will recognize the foreign judgment involving the disputes on real estate in China?
In accordance with the Singapore Judgment, the Claimant and Respondent should each retain other properties under their names, but the Respondent later discovered that the Claimant’s “other properties” included a house in China. Therefore, the Singapore Court actually rendered a judgment on real estate in China.
According to Article 33 of Chinese Civil Procedure Law, the case of real estate disputes shall be subject to the exclusive jurisdiction of the court at the location of the real estate. Therefore, Singapore Court has no jurisdiction over the case involving real estate in China.
Now the SPC has not clarified on which legal basis Chinese courts should review the indirect jurisdiction of foreign courts in the recognition and enforcement of foreign judgment proceedings, namely, whether by Chinese law or by foreign law.
However, many bilateral treaties between China and other countries indicate that if Chinese courts have exclusive jurisdiction over the case, Chinese courts may refuse to recognize or enforce the relevant foreign judgment.
Accordingly, we believe that even though the SPC has not clarified how to review the indirect jurisdiction of foreign courts, Chinese courts may still refuse to recognize the Singapore judgment on the ground that the judgment revolving real estates in China went against Chinese public policy.
An analysis is also available on the Asia Business Law Institute website here.
Contributors: Meng Yu 余萌