CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
• the amount of money the defendant must pay x 0.0175% per day x the days from the date the specified period expires to the date the obligee pays. 9.4 Enforcement Mechanisms of a Domestic Judgment If a party refuses to voluntarily perform a judg- ment, the other party can apply to the court for enforcement. To enforce a judgment, the applicant must sub- mit an application to the court of first instance, or to the same level of court where the property is located. On receipt of the party’s application for enforcement, the enforcement judge issues an enforcement notice to the obligor, ordering them to perform the judgment within a desig- nated period. If the party still refuses to perform the judgment, the enforcement officer may take compulsory measures to enforce it. 9.5 Enforcement of a Judgment From a Foreign Country The judgment from a foreign country can be enforced in China. There are two routes through which a foreign judgment can be enforced in China. One is that the foreign court that made the judgment requests Chinese courts to per- form the judgment. The other is that the party involved in the foreign judgment files an appli- cation to Chinese courts. In the latter case, the applicant needs to file the application to the court in the place where the enforceable prop- erty of the obligor is located. Chinese courts will recognise a foreign judgment in accordance with international treaties to which China is a party or on the basis of reciprocity. Before recognising a foreign judgment, the court will consider the following factors:
• The foreign judgment must be final and bind- ing. • The jurisdiction of the foreign court over the case complies with the requirements of Chi- nese law and public order and good customs. • The judgment does not violate Chinese laws and the principles of public order and good customs. • The trial procedures of the foreign court meet the requirements of procedural justice under Chinese law. • The judgment does not violate China’s vital interests such as sovereignty, security or public interests. • The matters covered by the award do not conflict with existing Chinese judgments or arbitral awards. • The party obligated to perform the judgment has property or ability to perform the judg- ment in China. • The application must be made within two years from the date of the foreign court deci- sion. 10. Appeal 10.1 Levels of Appeal or Review to a Litigation Generally speaking, if the parties are dissatis- fied with the first instance judgment, they may appeal to a higher court. Exceptions include intellectual property cases, where the Intellec- tual Property Courts have first instance jurisdic- tion and appeals in IP cases involving technical issues go to the Supreme People’s Court. 10.2 Rules Concerning Appeals of Judgments Appeals are of right, and no permission is required from the court. The appeal may be filed with the first instance court or directly with the
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