On The Reciprocal Recognition And Enforcement Of The Judgments Made By Courts Of The Mainland And Hong Kong Special Administrative Region

The Recognition and Enforcement of the judgment made by a court is the ultimate but the most crucial stage of the International (or Interregional) Civil Procedure, as well as the destination of the whole legal proceedings. Only when the judgment is recognized and enforced, the relationship of rights and obligations between the parties can be substantively secured. If any judgment made in one legal district cannot be recognized and enforced in any other legal district, the legal proceedings will have no practical significance. Generally, the recognition and enforcement of judgments can be divided into two circumstances:one is the international recognition and enforcement of judgments; the other is the interregional recognition and enforcement of judgments. The international recognition and enforcement of any judgment is subject to the impact of national sovereignty, while the interregional recognition and enforcement of judgments is more subject to the impact of the constitutional law of a certain country.Before July 1,1997, the recognition and enforcement of judgments between Hong Kong and the Mainland is the international recognition and enforcement of judgments. Thereafter, the same issue is transformed into an interregional one. However, due to China’s reunification is based on the principle of "one nation two systems", the recognition and enforcement of judgments between Hong Kong and the Mainland is greatly different from the traditional interregional recognition and enforcement of judgments.With the return of Hong Kong, China has become a multi-legal-district country. As a result of the "one nation two systems" principle, no expressly mandatory requirement or constitutional stipulation or unified legislation is available to China’s interregional recognition and enforcement of judgments. With comparison with other multi-legal-district counties, China’s interregional recognition and enforcement of judgments has its own characteristics. The interregional recognition and enforcement of judgments between the Mainland and Hong Kong Special Administrative Region shall be based on the Basic Law, while no provision in the Basic Law demands to formulate a common national law to deal with the judicial relationship between the courts in the Mainland and Hong Kong Special Administrative Region, and the issueds related to the legal conflicts of the said regions. Hence, each legal district shall have the equal consultation as the most fundamental and appropriate approach of the judicial organs for communication and provision of mutual assistance. There are three important factors affecting China’s interregional recognition and enforcement of judgments, namely, economic and trade relationships, civil rights and legal systems. Since the implementation of the "One nation Two Systems" principle, Hong Kong Special Administrative Region will continue to apply the original legal systems related to the recognition and enforcement of foreign judgments, which are basically inherited from the British traditional practices. Currently, when recognizing and enforcing of foreign judgments, two kinds of laws are mainly adopted by Hong Kong Special Administrative Region:the statutory law and the common law. There are three statutory ordinances involving the recognition and enforcement of foreign judgments applied in Hong Kong:i.e. Judgments (Enforcement) Ordinance enacted in 1921 (Chapter 9 of Hong Kong Statutes), Foreign Judgments (Reciprocal Enforcement) Ordinance enacted in 1960(Chapter 319 of Hong Kong Statutes), and Foreign Judgments (Restriction on Recognition and Enforcement) Ordinance enacted in 1985(Chapter 46 of Hong Kong Statutes). These three ordinances constitute the legal system on registration of foreign judgments. Pursuant to provisions of the common law, the prevailing party indicated in a foreign judgment may bring a new lawsuit in Hong Kong based on the original judgment which will be enforced upon the new judgment made by the relevant court in Hong Kong. The legal systems related to the international recognition and enforcement of judgments in the Mainland are mainly stipulated in the Civil Procedure Law of PRC enacted in 1991, and the bilateral and multilateral international treaties concluded or participated by China. With respect to the interregional recognition and enforcement of judgment, neither specific regulation nor private interregional law is applicable in the Mainland. The only feasible approach is to take the relevant provisions of private international law as references.At the very beginning of the new century, Hong Kong had put on the agenda the issues related to the reciprocal recognition and enforcement of judgments in civil and commercial matters between Hong Kong and the Mainland. Ever since 2002, upon a number of informal meetings and communications, Hong Kong Special Administrative Region and the Mainland have finally concluded the text of the Arrangement on Reciprocal Recognition and Enforcement of the Judgments of Civil and Commercial Cases under Consensual Jurisdiction (hereinafter referred to as "Arrangement").In respect to the Arrangement, Hong Kong had passed relevant legislation, and the Supreme Court of the Mainland had promulgated it on July 3, 2008, both of which would come into force on August 1,2008. The main characteristics of the Arrangement are that it has a smaller scope, while seeking common ground, and avoiding the bigger differences. The Arrangement provides that: as for the final, enforceable and payable judgment made by the courts in the Mainland and Hong Kong Special Administrative Region in a civil and commercial case with written agreement on jurisdiction, the relevant party may, under the provisions of the Arrangement, apply to the relevant court in the Mainland or Hong Kong Special Administrative Region for recognition and enforcement. The Arrangement also provides for the circumstances under which no judgment shall be recognized and enforced, i.e. the agreement on jurisdiction is invalid; the judgment has been completely fulfilled; the court at the enforcement place has exclusive jurisdiction over the case; the losing party failing to appear in court has not been legally summoned. or has been legally summoned but has not been given the answer time as provided by law; the judgment is obtained by fraudulent means or in violation of the public order.The biggest deficiency of the Arrangement is that its applicable scope is too narrow and overly rigorous. The main problems are as follows:the standard and basis used by the courts in the Mainland and Hong Kong Special Administrative Region to determine the jurisdiction of foreign-related civil and commercial matters is greatly different, and the systems related to the jurisdiction are hard to be coordinated; the courts in the Mainland and Hong Kong Special Administrative Region have different understanding of the finality of judgments, and the requirements of Hong Kong are more stringent; the connotation of the procedural fairness is not clear; and the interpretations on the public order in both regions are different. Although the Arrangement is far away from achieving the goal of free movement of judgments made in both regions, and is only applied to the judgments of the payment related civil and commercial cases with written agreements on jurisdiction while a large number of civil and commercial cases are excluded, and even retains some of the international practices, it should be another important milestone in process of the mutual judicial assistance between the two regions, making a solid progress for the free movement of judgments made in both regions.