Recognition and enforcement of foreign non-monetary judgments in China

• Author: Recognition and enforcement of foreign non-monetary judgments in China
• Pages: 218-240

FRONTIERS OF LAW IN CHINA

VOL. 13 JUNE 2018 NO. 2

DOI 10.3868/s050-007-018-0015-1

FOCUS

RECOGNITION AND ENFORCEMENT OF JUDGMENTS BETWEEN CHINA, JAPAN

AND SOUTH KOREA IN THE NEW ERA

RECOGNITION AND ENFORCEMENT OF FOREIGN NON-MONETARY

JUDGMENTS IN CHINA

ZHANG Wenliang*

Abstract Transboundary recognition and enforcement of judgments is of increasing

practical significance and it draws a great deal of efforts at various levels. However, the

efforts already made are predominantly in relation to cross-border movement of

monetary judgments, leaving non-monetary judgments beyond recognizability.

Investigation into China’s legislation and adjudication reveals that there is no distinction

made between recognition of monetary and non-monetary judgments, and practice also

ignores such a distinction. Following the trend of embracing non-monetary judgments

within the scope of recognizablility, China’s standpoint seemingly appears to be

desirable, although the long-standing non-differentiation of monetary and non-monetary

judgments is not presumed to be originally out of promoting recognition and

enforcement of foreign non-monetary judgments in China. It is submitted that for

promoting recognition and enforcement of foreign non-monetary judgments, China shall

introduce independent rules in order to facilitate the circulation of such judgments,

which merits a special treatment. For parties to seek the recognition and enforcement of

such judgments, prior to any overhauling of the current legal regime, they have to follow

China’s persisting general legal regime and judicial practice regarding recognition and

enforcement of all categories of foreign judgments, and a special call is made for

particular attention to the reciprocity requirement and due service requirement.

Keywords foreign judgment, non-monetary judgment, China, recognition and enforcement

I. A BROAD PICTURE............................................................................................................ 219

II. RECOGNITION OF FOREIGN DIVORCE JUDGMENTS.......................................................... 221

A. The Legal Regime....................................................................................................... 221

* (张文亮) Ph.D. in International Law, School of Law, Wuhan University, Wuhan, China; Assistant

Professor, School of Law, Renmin University of China, Beijing 100872, China. Contact: zhang.

wenliang@hotmail.com

This research is supported by National Social Science Foundation of China (Grant No. 15CFX069) and

Beijing Social Science Foundation (Grant No. 17FXC031).

2018] RECOGNITION AND ENFORCEMENT OF FOREIGN NON-MONETARY JUDGMENTS IN CHINA 219

B. The Judicial Practice.................................................................................................. 225

C. A Critique of the Legislation and Practice................................................................. 228

III. RECOGNITION OF FOREIGN INSOLVENCY JUDGMENTS AND OTHERS ............................. 229

A. The Insolvency Legal Regime..................................................................................... 230

B. The Insolvency Recognition Practice ......................................................................... 231

C. Recognition of Other NMJs........................................................................................ 234

D. Summary .................................................................................................................... 236

IV. OBSTACLES AND THE RESPONSES................................................................................... 237

A. The Hurdles v. Increasing Demands........................................................................... 237

B. China’s Future Rules or Global Participation? .........................................................238

C. Parties’ Possible Choices ...........................................................................................239

I. A BROAD PICTURE

The term non-monetary judgment (hereinafter referred to as “NMJ”) is used vis-a-vis

monetary judgment, and it is meant to refer to the judgment that contains no monetary or

pecuniary award. Broadly speaking, the NMJs do not only comprise of the judgments

with no monetary elements therein at all, but also include the non-monetary components

in a judgment that also comprises of monetary components. It is indeed not infrequent to

see the judgments combining both monetary and non-monetary components. Countries

vary in the kinds of judgments, which renders impossible to enumerate what kinds of

judgments fall within the category of NMJs. The orders such as injunctions, specific

performance, restitution of chattel, transfer of title, discovery, and declarations are all

among such NMJs. NMJs are used in the broad sense throughout the paper. For simplicity,

the paper is set to consider several typical NMJs, including the divorce judgments,

insolvency judgments and injunctions. These typical NMJs differ from the monetary

judgments in many respects and, in some instances, Chinese law provides for a separate

and differentiated legal regime for recognition and enforcement.1

For recognition and enforcement of foreign judgments (hereinafter referred to as

“REJ”), a great deal of global efforts have been mobilized. European Union (EU) and the

Hague Conference on Private International Law (HCCH) have been taking the lead.

Remarkable achievements have been made and individual countries have been eager to

push for a global judgments convention especially for the EU under the auspices of

HCCH. However, almost all the past REJ efforts or practice revolve around recognition

and enforcement of monetary judgments, establishing a tradition that only foreign

monetary or pecuniary judgments can be recognized or enforced. One of the

long-standing orthodoxies of the REJ law is that in order to be enforceable, a foreign

judgment must be looking for the payment of money. Foreign NMJs, such as injunctions,

1 See the discussion below II. A. The Legal Regime of this paper.