MACAU SAR, CHINA Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida, Bernice Kwok and Daniel de Senna Fernandes, Riquito Advogados
9.4 Enforcement Mechanisms of a Domestic Judgment Judgments and orders are enforced by further court procedures and, where necessary, by court officials. There is no procedure for direct enforcement (ie, not involving the court) by the successful party against the counterparty. In the case of non-voluntary compliance with an award, the successful party must initiate enforcement proceedings, as the court will not enforce a judg- ment automatically. The nature of enforcement proceedings will vary in accordance with the particulars of the judg- ment or order to be enforced. Enforcement proceedings will proceed accord- ing to the following steps: • submission of claim for enforcement based on court order/judgment; • submission of defence to enforcement pro- ceedings within 20 days; • enforcement through, for example, seizure of assets, rights or entitlements; and • discharge of judgment/order. Depending on the type of order or judgment to be enforced, the main means of enforcement may consist of: • seizure and auctioning of assets (the assets can also be sold through negotiation by an expert appointed by the court): if a third party is liable for the debt the court proceedings for the enforcement have to be commenced against that third party; • seizure of earnings; • forced sale; • charging orders; • periodical penalty payments; or
damages that would result from the application of the principle of adequate causation, unless the court finds them excessive. Furthermore, the successful party may be enti- tled to further compensation if the counterparty acts in the proceedings in bad faith, which is the case when the unsuccessful party, with fault or gross negligence: • submits a claim or defence being aware of the lack of respective merits; • changes or omits facts relevant for the deci- sion; • commits a serious offence to the obligation to co-operate with the court; or • uses the proceedings or certain procedural mechanisms for censurable purposes. Notwithstanding the above, court orders in gen- eral, and in indemnity claims in particular, are limited to the request made by the successful party. In order words, they cannot rule in excess of the party’s claim, either in the nature or in the specific amount of damages requested. 9.3 Pre-judgment and Post-judgment Interest In respect of pecuniary obligations, interest is due from the day the debtor is considered to be in delay (mora) of the delivery of the obligation. Therefore, if the debtor is considered to have been in delay since before judgment, pre-judg- ment interest will be available. If the obligation needs to be liquidated by the court, such as in the case of an indemnity claim (where the court has to assess the damages subject to indemnification pursuant to the prin- ciples described in 9.2 Rules Regarding Dam- ages ), interest will only be due post-judgment.
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