CHINA Law and Practice Contributed by: Yaxing Zhang, Bing San, Yi Cao and Jiahui Zhu, Han Kun Law Offices
Step Two: Application for Recognition and Enforcement Jurisdiction The applicant shall submit to the Intermediate Peo - ple’s Court where the respondent has its domicile or assets. Where the respondent has no domicile/assets in Mainland China, the applicant can submit to the Intermediate People’s Court where the applicant is The applicant shall apply for enforcement within two years from the judgment’s effective date. Late filing will result in loss of enforcement rights. Adjudication process The court shall constitute a collegial panel within 15 days. The respondent must file a defence within 15 days (if domestically domiciled) or 30 days (if overseas domiciled) after receiving the copy of the application. Before issuing the final ruling, the court shall report the final ruling to the SPC for archival filing. Remedy Parties dissatisfied with recognition/non-recognition rulings may apply for reconsideration to the higher court within ten days of service. Step Three: Application for Compulsory Enforcement Where recognition is granted, parties may apply for compulsory enforcement in Mainland China based on the effective ruling. Enforcement procedures are largely consistent with those for domestic judgments (see 2.2 Enforcement of Domestic Judgments ). 3.5 Costs and Time Taken to Enforce Foreign Judgments Recognition and Enforcement Fees domiciled. Time limit The parties seeking recognition and enforcement of foreign judgments in Mainland China shall bear the following costs: • notarisation and authentication of foreign docu - ments; • professional legal translation services; • court acceptance fees; • preservation application fee (capped at CNY5,000);
• property preservation insurance premiums; • enforcement fee (to be deducted from recovered assets; see 2.2 Enforcement of Domestic Judg- ments ); and • legal representation fees. Recognition and Enforcement Timeline Recognition phase The standard timeframe for recognition of foreign court judgments is normally six to 12 months from filing to ruling, which may be extended when jurisdic - tional challenges are raised or complex factual deter - minations are required. Enforcement phase As detailed in 2.3 Costs and Time Taken to Enforce Domestic Judgments , the statutory enforcement period is nominally six months; however, actual dura - tion varies significantly on a case-by-case basis in practice. 3.6 Challenging Enforcement of Foreign Judgments Pursuant to Article 300 of the Civil Procedure Law of the PRC, the Interpretation of the SPC on the Applica - tion of the Civil Procedure Law (the “SPC CPL Inter - pretation”), and the Minutes of the National Confer - ence on Foreign-Related Commercial and Maritime Trials (the “Foreign-Related Minutes”), people’s courts shall refuse recognition and enforcement of foreign judgments or rulings under any of the following cir - cumstances. Jurisdictional and Procedural Defects Jurisdictional defect • The foreign court lacked jurisdiction over the case. • Due process violations: (a) the foreign court failed to duly summon the respondent; (b) the foreign court deprived the respondent’s right to present arguments or defend; or (c) parties lacking litigation capacity were not legally represented. Fraudulent judgment The judgment was obtained through fraudulent means.
100 CHAMBERS.COM
Powered by FlippingBook