Enforcement of Foreign Judgments in Family Matters in China
By Ms. Rong Kohtz, Esq.
(This article was presented at the conference: International Families: Money, Children and Long Term Planning(June 19-21, 2014, Seattle, Washington), of the American Bar Association)
I. Historical and Cultural Background of Chinese Family LawIn order to develop an understanding of contemporary Chinese family law and practice, it is imperative to appreciate the social, cultural, political, and historical aspects of Chinese legal tradition.
A. Chinese Tradition: Family Harmony
China’s family law system is deeply rooted in the culture and philosophies of classical China, such as Confucianism. Confucianism emphasizes that family harmony is vital to a person’s success as well as a country’s stability and prosperity. Such belief is firmly instilled in Chinese family law, on paper and in practice.
Divorces and other forms of domestic disputes are strongly discouraged. Vast majority of divorces are settled and finalized within the civil registry system. Mediation is mandatory in divorce actions. Family disputes that eventually make into the court are mostly settled through judicial mediation, in which the court acts as the mediator.
Contested divorces are often, if not routinely, denied by the courts, not only in remote areas in China’s heartland but also in global metropolises such as Beijing, Shanghai and Guangzhou. In the late 90’s when I was clerking at a trial court in Beijing, first-time divorce complaints were inevitably denied and couples were sent home to attempt reconciliation for at least 6 months to a year. When the parties brought a second divorce action, they must demonstrate that they had made every effort to reconcile, reconciliation was impossible, and the marriage had indeed irretrievably broken down. This appears to continue being a common practice throughout China.
B. European Influence
China’s modern legal system was influenced by legal principles of continental European countries. It is based on the civil law system, with particular similarities to the German system.
In the area of family law, China has long adopted 19th Century European legal principals. Most notably, China’s jurisdictional rules are based on the principal of nationality (lex nationalis), which is extensively applied in both civil and criminal matters in civil law countries while the common law countries only apply it to major crimes.
Under the principal of nationality, matters of personal status are to be governed by the State of a person’s nationality. the Chinese court has jurisdiction over all Chinese nationals based on their Chinese nationality in matters of personal status, such as marriage and parental relations. Consequently, the children of Chinese nationals living abroad are under the Chinese court’s jurisdiction regardless of these children’s own nationalities or habitual residences outside of China.
In contrast, countries of immigration, including the United States and most Latin American countries, have broadly applied the principle of domicile (lex domicilii) that jurisdiction over personal matters is determined by domicile, and the courts should apply the law of that person’s domicile in matters related to a natural person.
Needless to say, many conflict of laws issues arise when the common law system clashes with the civil law system. China’s conflict of laws issues are not unique.
Over the past decades in response to the increased nobilities of families in the era of globalization, many countries made joint efforts to resolve or reduce conflicts in procedural and substantive national laws. Over the last 30 years, particularly in the effort of becoming a member of the WTO, China has been quick to update its legal system to accommodate its trading partners, especially in the area of commerce, foreign investment, and securities regulations. However, in the area of family law, China’s response to the increased mobility and diversity of its population has been relatively slow and cautious. As a result, China lacks a comprehensive, coherent system addressing unique issues in international family law. For example, although there are discussions about China becoming signatory of the Hague Abduction Convention, the official response to the discussions is less than lukewarm.
II. Sources of Chinese Family Law
The legal system of the People’s Republic of China is mainly codified law and is not derived from a historically developing body of judicial decisions. Provisions related to family relations are scattered in various codes, statutes and regulations.
A. The Constitution
The Constitution is the principal law of the country. It contains ideological principals of family relations, such as parents have the obligation to support their minor children and adult children have the obligation to support his or her parents.
B. National Legislations
The National People’s Congress (NPC), which is China’s national legislature, issues legislations applicable nationwide. The key national legislations governing domestic relations are:
- General Principles of the Civil Law (2009 Amendment), which is China’s civil code modeled after the German Civil Code.
- Marriage Law (2001 Amendment), China’s substantive law of marriage and domestic relations.
- Civil Procedure Law (2012 Amendment), provides procedures in which civil matters are decided.
- Law on Laws Applicable to Foreign-Related Civil Relations (2011), which is a specific law enacted to govern the application of law in foreign-related civil relations in connection with civil institutions, natural persons, marriage and family, succession, property rights, creditor’s rights and intellectual property rights. It also summarizes the general principles of the existing Chinese conflict of laws and practices in a more systematic manner and clarifies certain conflict of laws by referencing the prevailing international practices.
Chinese immigration and nationality laws are relevant in cases of children’s relocation and visitation in China. The two major Chinese immigration law statutes are:
- Nationality Law (1980)
- Exit and Entry Administration Law (2013)
C. Administrative regulations
The State Council, China’s administrative body, and its subordinate ministries and administrative departments, are authorized to issue more detailed administrative regulations and measures for the implementation of laws.
The State Council’s “Foreigner Exit-Entry Administration Regulations” is a good example. It provides detailed guidelines to relevant agencies with respect to implementation and enforcement of the Exit and Entry Administration Law.
China’s administrative regulations are complex and very relevant in many international family law situations. These regulations answer questions such as:
- How to serve judicial documents in China?
- How to prevent a child from entering or exiting China?
- How to obtain property records in China?
D. International Treaties
China is signatory to a large number of international treaties, including ones most relevant to family law practitioners:
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters
Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption
In addition, the US and China entered a Judicial Assistance Agreement in criminal matters in 2000. . This agreement can be very useful because it allows US law enforcement to seek assistance in locating persons in China.
China also has entered bilateral treaties in judicial assistance in civil and/or criminal matters with over 30 countries, including France, Spain, Canada and Russia.
International treaties have force of law in China, exceptforthose provisions to which the Chinese governmenthas made explicitreservations.
E. Provincial legislations and local decrees
The People’s Congress and the People’s Governments at local levels, mainly on the provincial level, are also allowed to issue legislations and regulations suitable to local conditions. Local legislations and regulations are an important aspect of Chinese legal system. Essentially, local laws and regulations determine how the local courts and law enforcement implement, apply and enforce the national laws. Local laws are not supposed to conflict with national legislations, although they often do as “reflection of local characteristics.”
A characteristic of Chinese governance is the prevailing culture of secrecy, reflected in the circulation of so-called “internal” regulations issued mainly on the local level. The content of these internal regulations may not be directly disclosed to the general public, particularly foreign parties. But these internal rules operate as prescriptive guidelines for Chinese officials.
F. Judicial Interpretations/Explanations
The Supreme People’s Court, the highest court of China, has a distinctive function that is to issue guidelines on implementation and application of legislations, and provides interpretations to questions concerning specific application of laws. It also issues judicial explanations that give specific instructions as to how a specific case and similar cases should be handled in response to lower courts’ inquires. These guidelines, interpretations and judicial explanations are binding on the lower courts.
In recent years, the Supreme People’s Court and some provincial Higher People’s Courts have developed case report systems, through which the courts regularly publish recent judgments, decisions and orders in both civil and criminal matters. Nevertheless, these reported cases do not create precedents and are not binding.
III. China’s Court System
Chinese courts are generally divided into courts of general jurisdiction and courts of special jurisdiction. Courts of special jurisdiction include military courts, railway transportation courts and maritime courts. Family law matters are heard in courts of general jurisdiction. China does not have a specialized family court system.
A. The Supreme People’s Court
The Supreme People’s Court is the highest judicial body in China.
B. Higher People’s Courts
Higher People’s Courts are established at the provincial level. These courts can hear appeals from the Intermediate People’s Courts located in the provinces and have jurisdiction as courts of first instance over civil cases with significant impact within the province.
C. Intermediate People’s Courts
Intermediate People’s Courts hear appeals from the basic-level People’s Courts and can also exercise jurisdiction as courts of first instance over major cases involving foreign parties and cases with significant impact within the geographical areas over which they exercise jurisdiction.
An application for recognition and enforcement of a foreign court order or judgment should be made in the Intermediate People’s Court at the place where the enforcement is sought.
D. Basic-level People’s Courts
The basic-level People’s Courts are trial courts of first instance at the county level. The basic-level People’s Courts have general jurisdiction as courts of first instance over civil and criminal cases, except as otherwise specifically provided by law.
E. Components of Chinese Court
1. Divisions
The People’s Courts at each level normally maintain several law divisions, including one civil division assigned to hear family law matters, and one enforcement division that handles all post judgment enforcement proceedings.
2. Judges
All Chinese judges are political appointees. In practice, women judges are often assigned to handle domestic relation cases as a measure to protect the rights of women and children. Chinese courts tend not to assign an unmarried and/or young judge to family law cases. The general perception is that a family law judge should be a revered maternal figure in the courtroom, and a young person with little experience in domestic life is not equipped to handle domestic disputes.
3. Collegiate Benches/Tribunals
Simple civil matters are dealt with through a summary or special procedure by a single judge. Most cases are heard by a tribunal called “collegiate bench.” Domestic relation cases involving foreign elements are usually heard by a collegiate bench of three members. At the trial court, the tribunal can consist of three trial judges or one or two trial judges with one or two People’s jurors. On appeal, a new collegiate bench consisting solely of judges will be formed.
The number of members on the tribunal must be an odd number. The majority view will prevail in the adjudication process. Dissenting opinions, if any, can be recorded in the file, which is numbered and kept by the trial Court. In practice, one member of the collegiate bench will be appointed as the leading trial judge. The role of the lead trial judge is, in practice, to take primary control of the hearing process; to question the parties or their witnesses at the hearing; to organize the investigation and collection of evidence (where necessary); and to prepare a draft judgment.
4. People’s Jurors
China has a unique People’s juror system. As part of a tribunal, People’s jurors participate and vote in the adjudication process. People’s jurors may conduct independent investigations and communicate with the parties directly.
People’s jurors are lay people (in the sense that they have no legal training) selected from the local community. In practice, jurors are not often used. Some courts, however, often appoint respected community members, social workers, or school teachers as People’s jurors in family law cases, particularly in cases involving children and/or domestic violence.
5. Adjudication Committees
Each court has an adjudication committee. Members of the adjudication committee of the local courts are appointed and dismissed by the People’s Congress at the equivalent local level. Members of the adjudication committee are not judges.
The role of the adjudication committee of each court is to review the trial work, and discuss major or complicated legal issues arising from the cases pending before the court. In practice, it is the de facto internal decision-making body in each court. When the members of the collegiate bench cannot agree on certain issues involved in the case the chair of the bench will refer these issues to the adjudication committee. The adjudication committee will meet to discuss these issues until a majority opinion is formed. In addition, although the collegiate bench has the power to decide a case, in practice, generally a judgment or an order will not be rendered before it is reviewed by the adjudication committee.
6. Language and the Courts
Mandarin Chinese is the official language written and spoken in Chinese courts. Foreign parties, if needed, must secure the services of interpreters at their own expense. There are no rules concerning the qualifications and appointment of court interpreters.
7. Legal Profession
In general, a foreign national suing or being sued in a People’s Court may need to engage a PRC-qualified lawyer to appear in court on his or her behalf. A foreign lawyer may assist a Chinese lawyer and attend hearings. However, generally a foreign lawyer is not permitted to speak at such hearings in a lawyer’s capacity.
If the foreign party does not reside in China, the foreign party may appoint a Chinese lawyer by a power of attorney. This power of attorney must be notarized in the appointing party’s country and authenticated or legalized by the PRC embassy or consulate in that country.
The Civil Procedure Law amended in 2012 and the Law on Laws Applicable to Foreign-Related Civil Relations enacted in 2011 both provide that the courts should seek expert opinion and evidence of foreign laws relevant to the case when determining which laws should apply. Thus, it is foreseeable that foreign attorneys, particularly those represent the parties in the foreign court, will play an important role in related proceedings in China.
IV. Territorial and Subject Matter Jurisdiction in Family Law Matters
A. Territorial Jurisdiction
With respect to territorial jurisdiction and subject matter jurisdiction, generally a domestic relation action falls under the jurisdiction of the People’s Court at the location of either party’s registered residence or habitual residence.
An enforcement procedure may be brought at the location:
where the court issued the final judgment sits; or
where the person or property subject to the enforcement is located.
B. Subject Matter Jurisdiction
Chinese Civil Procedure Law specifically provides that an application for recognition and enforcement of a foreign court order or judgment should be made in the Intermediate People’s Court at the place where the enforcement is sought.
1. Dissolution of marriage
Chinese law provides that the courts may recognize foreign divorce judgment involving Chinese nationals while Chinese courts may not accept any petition for recognition of a foreign divorce judgment relating to a marriage between two non-Chinese nationals.
2. Child Custody
Based on the nationality principal, a Chinese court has jurisdiction over all Chinese nationals based on their nationality in matters of personal status, such as marriage and parental relations. Consequently the children of Chinese nationals living abroad are under the Chinese court’s jurisdiction regardless of these children’s own nationalities or habitual residences outside of China.
Because of the Chinese courts’ broad jurisdictional power, some Chinese nationals bring divorce actions in China while another divorce action is pending in the US. This can cause conflicting orders from two courts and make it extremely difficult to enforce a US court order in China.
3. Marital Property
Pursuant to Chinese law, Chinese courts do not have jurisdiction over real properties located outside of China. Generally, Chinese courts decline to exercise jurisdiction over liquid assets outside of China. Thus, the Chinese court may decline jurisdiction over distributive awards related to properties located outside of China.
V. Recognition and Enforcement of a Foreign Judgment in Chinese Courts
A. Summary Proceeding for Recognition of A Foreign Divorce
Chinese law provides a summary proceeding for recognition of a foreign divorce judgment. The proceeding is only applicable to marriages in which at least one party is a Chinese national. It only applies to recognition of the dissolution of marriage. It does not apply to any ancillary awards.
B. Recognition of a Foreign Judgment
Before it can be enforced in China, the validity of a foreign judgment or court order must be recognized by the Chinese court. Under several circumstances, foreign courts’ distributive awards, custody and/or support orders may not be recognized by a Chinese court.
1. Lack of Reciprocity
First, a foreign order can be held unenforceable for lack of reciprocity. Chinese Civil Procedure law provides for the enforcement of foreign court judgments in accordance with international treaties concluded or acceded to by China or the principle of reciprocity. Reciprocity is interpreted as willingness by a foreign court to enforce a judgment issued by a Chinese People’s Court. This maybe difficult to establish as there are few cases where a US court recognized and enforced a Chinese court order.
2. Awards of Property
Chinese Civil Procedure law provides that a foreign judgment or order may not be recognized if it was entered by a court without proper jurisdiction.
In the past, some Chinese courts refused to recognize and enforce US courts’ distributive awards of real estate properties located in China. The courts’ reasoning is that the disposition of real property is governed by the law of the place where the real property is located. Thus, the US courts have no jurisdiction to distribution of real properties located in China.
It must be noted that these decisions predate the Law on Laws Applicable to Foreign-Related Civil Relations enacted 2011. The new law provides that the law of the parties’ common habitual residence or the parties’ common nationality shall apply in respect to marital property.
“ARTICLE 24 In respect of spousal property, the parties may by agreement choose to apply the law of a party’s habitual residence or nationality, or the law of the place where the main property locates. Absent any choice by the parties, the law of their common habitual residence shall be applied; absent common habitual residence, the law of their common nationality shall be applied.”
Therefore, pursuant to the Law on Laws Applicable to Foreign-Related Civil Relations, Chinese courts would recognize and enforce property distributive award made by a foreign court of the parties’ common habitual residence or common nationality.
However, the new law fails to address cases where the parties do not have common habitual residence or common nationality. For example, if H resides in Beijing and is a US citizen, and W resides in New York and is a Canadian citizen. The Chinese court may not recognize and enforce a New York court order distributing the parties’ real estate properties located in China as W and H do not have common habitual residence or common nationality.
3. Child Custody and Support Orders
As discussed previously, Chinese courts have broad jurisdiction over divorces when at least one party is Chinese national, and consequently acquire jurisdiction over the children of any Chinese national regardless of where the children’s habitual residence may be. Concurrent divorce actions in China and another country may result conflicting child custody and support orders. In such case, the Chinese court order will take priority over the foreign order.
The newly enacted the Law on Laws Applicable to Foreign-Related Civil Relations in many ways will reduce the possibility of conflicting child custody and support orders from China and a child’s home state. The Law on Laws Applicable to Foreign-Related Civil Relations basically provides that the law of a child’s habitual residence applies in child custody and support matters.
“ARTICLE 25 Personal and property relations between parents and children are governed by the law of their common habitual residence. Absent common habitual residence, the law of a party’s habitual residence or nationality, which better protects the rights and interests of the weaker party, shall be applied.
ARTICLE 29 Maintenance is governed by the law of a party’s habitual residence, or the law of a party’s nationality, or the law of the place where the main property locates, which better protects the rights and interests of the person being supported.
ARTICLE 30 Guardianship is governed by the law of a party’s habitual residence or nationality, which better protects the rights and interests of the person under custody.”
This may greatly facilitate the recognition and enforcement of a US child custody order .
4. Bring a New Action
The new laws may provide some opportunities for enforcing foreign judgments in China. However, the laws have not been widely used. Clearly, the new laws impose a heavy burden of evaluating foreign laws on the Chinese courts. The Supreme People’s Court recently published its first set of guidelines and explanations to the new laws. How the Chinese courts will apply these laws in practice remains to be seen.
If the Chinese court declines to recognize the foreign court order, the alternative is to bring a new action to seek a Chinese order based on the foreign court’s orders or findings. In practice, Chinese courts generally would enter a Chinese court order similar to the foreign court’s custody order.
C. Procedure for Recognition and Enforcement of a Foreign Judgment
1. Commencing the action
a) Filing of the Petition
An action for recognition of a foreign judgment may be commenced by filing a petition/complaint with the Intermediate People’s Court with competent jurisdiction.
China and the United States do not treaties relating to recognition and enforcement of each other’s judgment and orders in civil matters. Considering the difficulties in establishing reciprocity, an action seeking a new Chinese court order based on the existing US order may be an option. The procedure of a new action is similar to the procedure for recognizing a foreign judgment.
The court will examine the petition and decide within seven days whether it satisfies the relevant criteria, such as whether the pleadings are sufficiently specific or whether the action falls in the court’s jurisdiction. The examination is conducted by the case acceptance office of the court. If the court determines that the petition fails to conform to any of the above criteria, it will rule not to accept the case.
b) Notice of Acceptance
If it finds that the petition conforms to the applicable criteria, the court will place the action on the case docket within seven days and issue to the petition a notice of acceptance, which usually states that the case has been accepted and the plaintiff is required to pay, in advance, a case acceptance fee within a specified time. Following receipt of the case acceptance fee, the court will proceed to serve the petition on the defendant.
c) Case Acceptance Fee
Several different types of costs may be payable by litigants. The most important of these is the case acceptance fee, which is levied on a sliding scale based on the value or the complexity of the claim.
d) Respondent’s Reply
The respondent responds to the claims set out in the petition by a reply. Similar to the petition, the reply will need to specify defenses asserted and evidence in support of each defense. The reply may also include counterclaims.
e) Supplementary Documents
With a time limit set by the court, parties may submit supplements to pleadings and evidence.
f) Service of Process
The court is responsible for the service of process in civil actions. The plaintiff has no duty to complete or submit proof of service. The responsibility of the court to effect service applies to all legal documents required to be served in the civil procedure. Within five days of the acceptance of a case, the court must effect service. Service of process must be evidenced by an acknowledgment of receipt.
In a foreign-related action where the defendant/respondent is not domiciled in China, service may also be undertaken through diplomatic channels or in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters.
2. Pre-Trial Procedure
a) Composition of the Collegiate Bench
The court will usually determine the composition of the collegiate bench following acceptance of the case. The court is obliged to notify the parties of the names of the members of the bench. The parties may challenge a judge sitting on the collegiate bench and request his or her withdrawal in certain circumstances, such as where he or she is a party or a close relative of a party or has an interest in the case.
b) Discovery and Evidence
The general rule on presentation of evidence is that the party asserting an allegation bears the burden of proof. Chinese courts permit the introduction of various kinds of evidence. Permissible evidence includes documentary evidence, electronic evidence, real evidence, audio-visual materials, live testimony of witnesses, statements by interested parties, expert conclusions and notes of inquest. As a general rule, all types of evidence must be verified by the court as to their authenticity before being allowed to be used as a basis for determining facts. All evidence may be submitted before the trial or hearing, or presented at the trial.
The court has the right to obtain evidence, on its own initiative, from relevant institutions or individuals, and these institutions or individuals cannot refuse to provide such evidence.
The court will review the evidence and documents submitted by the parties, and prior to the trial collect evidence on its own initiative if necessary. The court is required to follow certain prescribed legal procedures when collecting evidence. A party who withholds evidence risks that the court will draw a negative inference from the uncooperative behavior.
3. Trial Procedure
A trial hearing in China is is usually very short. If more hearings are required, the court can call the parties to have a second or third hearing.
a) Notification
In civil actions, the rules require the court to notify the parties of the trial hearing three days before it commences. If the defendant/respondent is located outside of China, the court may notify the parties more in advance.
b) Judge’s Role at Hearing
Chinese civil procedure generally follows the inquisitorial system. Judges take an active role in enquiring into the facts of the case. They are free to ask questions of the parties or their witnesses directly. The exchange by and between the parties is controlled by the presiding judge. It is at the presiding judge’s discretion to determine who should be allowed to speak.
c) Opening
Before the trial session opens, the presiding judge of the collegiate bench or the sole judge, as the case may be, checks that the parties or their duly authorized representatives are present and informs them of their rights and obligations at the hearing. The judge will then declare the opening of the hearing.
At the trial hearing, the plaintiff will open its case first by briefly stating the claims as stated in the petition. The plaintiff will then present its case on the facts. The defendant will then briefly state its defense and the facts of the defense case.
d) Presentation of Evidence
Evidence will then be presented at the trial in the following order: presentation of statements by the parties; informing the witnesses of their rights and obligations; questioning the witnesses, and reading out written depositions of witnesses not present; presentation of documentary evidence, physical evidence, and audio-visual materials; reading of expert conclusions; and reading out any record of inquest.
e) Reply, Rebuttal and Debate
At the trial the plaintiff and his attorney make statements first, followed by the response by the defendant and his attorney.
Each party and their attorneys may also ask the opposing party questions after the debate.
Last, the plaintiff and defendant are asked to make their final statements.
f) Mediation
Upon the conclusion of the exchanges between the parties, the judge may encourage the parties to attempt mediation. If mediation fails to lead to settlement, the court will close the hearing. A court judgment will then be issued if the court finds that the facts are clear and there is no need for another hearing.
g) Court Record
In each case there will be a clerk who is responsible for administering the file, taking minutes of the hearing and drafting legal documents in the process, including the judgment. The minutes of the hearing will be included in the file kept by the court. Generally, the file of the case will be available only to counsel representing the parties. The court will usually allow the lawyer to review the file and take notes regarding the information in the file.
h) Statement of Representation
In practice, the lawyers from both sides often submit a “statement of representation” summarizing legal arguments. This document will focus on the line of legal arguments of the party and can be presented at the hearing or submitted to the court after the hearing.
i) Judgment/Decree/Order
The judgment must be announced by the court in public. Where the court announces the judgment in court session, a written judgment must be issued within 10 days unless a specific date has been set for announcement of the judgment, in which case the written judgment must be issued immediately after the announcement.
The court will issue an enforcement order upon recognition of a foreign judgment or order.
4. Enforcement Procedure
a) Notice of Enforcement and Demand for Financial Disclosure
Upon the issuance of the orders for recognition and enforcement, the enforcement procedure will begin. Once the enforcement division starts the enforcement procedure, it will serve the respondent with a notice of enforcement and demand for financial disclosure.
b) Investigation
The court will initiate its own investigation, including calling the respondent to the court for an inquiry, requesting the petitioner to provide evidence, and issuing information subpoenas.
In custody and visitation enforcement, the court generally calls both parties to the court and attempts to mediate a settlement as soon as possible before taking any drastic measures, such as fine or imprisonment.
When a parent conceals the child, sometimes the court might make efforts to locate the child and parent. Chinese government maintains strict immigration control. Everyone lives in China must report and register their temporary or permanent residences with the police. Foreign nationals, including children of Chinese nationals, must report to the police and obtain residence permits in order to live, work or go to school in China. In many provinces, foreign nationals, including children, are fingerprinted when applying for the residence permits. Although it may be difficult, it is not impossible to locate a person, particularly a foreign national, in China.
The effectiveness of China’s control on its foreign population might contributed to the low parental abduction rate from the US to China. There were total 6 outgoing cases to China were reported to the State Department, in comparison to 48 to Canada, 13 to France, and 17 to Japan in 2013.
c) Executing Enforcement Measures
Whenever the court identifies the respondent’s property, it will execute enforcement measures, including to attach, seize, garnish, and possess properties and income subject to enforcement.
In custody and visitation disputes, the court enforcement officers may supervise exchange of the child for visitation. Enforcement officers report difficulties in enforcing visitation.
The courts can issue restraining orders to prevent a parent from leaving China with the children.
d) Objections to Enforcement
The respondent or a third party subject to enforcement may file objections, and are entitled to a hearing on the objections. If the objections are denied or granted, either party may appeal the ruling. The appeal may or may not stay the enforcement measures.
VI. Conclusion
Enforcement of a foreign judgment or court order is a challenging task in China, as it may be in many countries. China lacks a comprehensive system to address many international family law issues. The Law on Laws Applicable to Foreign-Related Civil Relations and the recently amended Civil Procedure Law have opened doors for more effectively enforcing foreign judgments in China. However, it will be sometime before the system is fully developed and matured.
Chinese family law system is deeply rooted in Chinese culture and tradition, which values family unity and harmony and despises confrontations between family members or even neighbors. Litigious conduct is discouraged, if not penalized. Parties are encouraged, if not demanded, to settle their differences through mediation. Practical solutions to family disputes are favored. Thus, virtually all family law cases, including enforcement cases, are settled.
In conclusion, litigants and foreign attorneys need to enrich their knowledge of the Chinese family law, judicial practice and culture in order to effectively enforce foreign judgments in family law matters in China.
Contact
Ms. Rong Kohtz
30 Wall Street, 8th Floor
New York, New York 10005
www.kohtzlaw.com
Tel: 011-1-212-859-5031
Email: [email protected]
