CONFIDENTIAL
5
12.
In an attempt to deal with these problems the Supreme People's Court has required that any court which is entrusted with the enforcement of a judgement must give that judgement priority over all local enforcement matters. If a court declines to enforce another court's judgement, it must send a statement of its reasons for refusal to the entrusting court or to its own supervisory court at the next higher administrative level. Chinese courts may challenge a judgement on both procedural and substantive grounds, although, according to Mr. Zhang, only a procedural mistake which affected the substantive issues is a sufficient reason for refusing enforcement.
13.
The CPL also provides for the enforcement of foreign judgements either on the basis of a bilateral judicial assistance agreement or on the basis of the principle of reciprocity. The CPL also provides that a Chinese court has the right to refuse enforcement if it determines that a foreign judgement violates "the fundamental principles of law of the P.R.C. or its national and social interests".
14.
The P.R.C. has concluded judicial assistance agreements with France, Belgium and Poland which provide for mutual recognition and enforcement of civil judgements. It would be useful to know whether any judgements have been enforced under these agreements. At present it appears that the Chinese government is not prepared to enforce a foreign judgement simply on the presumption that a foreign state will grant reciprocity. However this avenue should not be overlooked and may be useful as Hong Kong develops its judicial relations with the P.R.C. Although the Registrar of the Supreme Court is of the opinion that the common law "action on a foreign judgement" does not amount to a sufficient basis for a claim of reciprocity, the Chinese authorities may not be as technical in their approach.
15.
Mr. Zhang Mao was able to confirm that Hong Kong judgements are not at present enforceable in the P.R.C. He was also interested in knowing more about the procedures for enforcing P.R.C. judgements in Hong Kong which he had in fact been told was possible under Hong Kong law. We had a short discussion regarding the concept of an action on a foreign judgement. Two days later an official from the court telephoned me at my hotel to ask that I send Mr. Zhang some written information about actions on foreign judgements.
IV. The Supreme People's Courts Proposal
16.
During our conversation Mr. Zhang outlined how the Supreme People's Court would like to see judicial assistance develop between Hong Kong and the mainland. He suggested that the Hong Kong-Guangdong agreement be extended to cover the rest of the P.R.C. and then expanded in content to cover the
CONFIDENTIAL
No comments yet.
Private notes are available after approval.