CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
9.3 Pre-judgment and Post-judgment Interest Pre-judgment Interest In general, whether one party is able to cover pre-judgment interest is dependent upon the agreement between the parties. More specifically, if the interest for late perfor- mance is included in the contract and the claims based on the interest are supported, the court usually awards the plaintiff the interest based on the contract caused by late performance before the judgment. Therefore, if the claim on the delay of performance is included in the contract and supported by the court, the successful party may collect interest based on the period from the beginning of the proceeding to the date of judgment. Post-judgment Interest In China, post-judgment interest includes two parts: the interest for late performance accord- ing to the contract and a penalty for late perfor- mance of monetary obligations in the judgment. In the judgment, a specified period is set for the unsuccessful party to fulfil the monetary obli- gations. If the obligations are performed within the specified period, the post-judgment interest only includes the interest for late performance according to the contract that accrues up to the date of actual payment. On the other hand, if the monetary obligations fail to be fulfilled within the period specified by the court, the obligee must also pay a penalty for late enforcement of the judgment while the interest for late performance continues to accumulate. In this case, the post- judgment amount consists of both the interest and the penalty, which will accrue until the obli- gee makes payment. The penalty is generally calculated as follows:
If the settlement is brokered through court-medi- ated procedures, the court-issued settlement agreement is judicially enforceable. 8.4 Setting Aside Settlement Agreements The parties may set aside the settlement agree- ment by applying to the court for retrial if the settlement agreement: • was entered into due to a significant misun- derstanding; • is clearly unfair; or • was made by means of deception, coercion, or taking advantage of the other party’s dif- ficulties. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant The remedies available at the full trial stage include: • damages; • declarations; • permanent injunctions; and/or • specific performance. 9.2 Rules Regarding Damages Generally speaking, damages in China are com- pensatory. However, punitive damages are avail- able in some areas, including: • product defect liability; • fraudulent acts by goods or service providers causing death or serious injury to consumers or other victims; • wilful infringement of intellectual property rights that results in serious consequences; or • intentional pollution of the environment or destruction of the ecology.
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