TNAG-2331-FCO40-3390-Reciprocal-judicial-assistance-between-Hong-Kong-and-China-c-1991 — Page 13

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In the case of the PRC legal system, which purports to follow the

vivillanl tradition, the 1982 Law of Civil Procedure, does impose

a similar precondition for enforcing a foreign judgment. Thus, a people's court will refuse to recognize or enforce a foreign judgment which "violates the fundamental principles of the law of

the PRC or the national and social interests of the P.R.C."

(Art. 204). Of course, most legal systems have public policy

pluvialuus ol Liis nature, but we do not know much about the way

whluli che people s courts in China have actually applied the PRC

public policy provision. Given the general tendency of courts in the PRC to protect local interests it would be (unwise from our

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point of view LU assume that they would be reluctant to use this

(cquilement Lo resist recognition and enforcement of foreign JuuymeILY, ine position may be a little better if a Chinese

court is expected to enforce a judgment from another law district

not on the basis of the principle of reciprocity but, rather,

Because it is required to do so by the terms of an international

treaty. This is because Chinese law does not explicitly attach a

public policy condition to the application of international

treaties thus Art. 189 of the 1982 Law of Civil Procedure

provides "if an international treaty concluded or acceded to by

the People's Republic of China contains provisions differing from

those found in this law, the provisions of the international

treaty shall apply, unless the provisions are ones on which China

has announced reservations."

[C] The establishment of workable arrangements which could be relied on after 1997, especially as the PRC has apparently not

yet fixed on any particular policy regarding such questions as

mutual recognition and enforcement of civil judgments. We

therefore may still be able to influence significantly the PRC's

approach through negotiations with its representatives, and have

in place a reasonable and mutually beneficial arrangement well

before Hong Kong becomes a SAR of the PRC. If the matter is

postponed still further, we may find that the PRC has determined

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