Is it true that only upon recognition by Chinese courts, can foreign judgments become admissible into evidence?
According to China’s rules of evidence in civil proceedings, Chinese judgments can be admissible into evidence, meaning that the findings in an effective judgment made by a Chinese court can be seen as facts found in another civil litigation, whose authenticity need not be further proved, unless contradictory evidence is produced in its rebuttal. [1]
However, the aforesaid rules haven’t mentioned foreign judgments. So, can foreign judgments play a similar role? Can Chinese courts admit into evidence the findings in foreign judgments?
Traditionally, most Chinese courts believe that only upon recognition by Chinese courts, can foreign judgments become admissible as evidence. However, there are also courts that directly admit into evidence the facts found by foreign judgments.
Dr. Li Qingming (李慶明), an associate researcher at Institute of International Law of Chinese Academy of Social Sciences, published an article titled “On Using Extraterritorial Civil Judgments as Evidence in Civil Procedure in China” (論域外民事判決作為我國民事訴訟中的證據(jù)), collecting and analyzing relevant cases in China, from which we can gain an insight into the practice by Chinese courts. The article was published in “Chinese Review of International Law” (國際法研究) (No. 5, 2017).
According to a judicial policy document from the Supreme People’s Court (SPC) in 2004 collected by Dr. Li, Chinese courts had better not directly admit the facts found by foreign civil judgments. [2]
However, in practice, some courts believe that foreign civil judgments are valid and admit them as evidence directly. [3]
Other courts believe that upon recognition by Chinese courts, foreign civil judgments can be admitted as evidence in China’s civil litigation. [4]In fact, upon recognition by Chinese courts, a foreign civil judgment can be regarded as a Chinese judgment. Therefore, it is more of a Chinese rather than a foreign judgment admitted as evidence.
The crux of the issue lies here: Why do some courts admit foreign civil judgments yet to be recognized as evidence?
The judges of these cases believe that if the foreign judgment is not admitted as evidence directly, the parties concerned and the court will have to collect, examine and find the evidence that has already been presented and examined in the foreign court, which will inevitably involve such issues as extraterritorial service of process, extraterritorial evidence collection, and ascertainment of foreign law. This will increase judges’ workload, delay the litigation progress, increase the litigation costs of the parties, and sometimes make it difficult for the parties to prove their rights and further result in unreasonable judgments.
A similar rule has been issued by the Guangdong High People’s Court, according to which, a foreign judgment can only be used as evidential material before it is recognized, and the court shall not directly use its facts found and decisions. As some judges indicate, the actual effect of the rule is that, as long as the parties do not present contradictory evidence in its rebuttal, Chinese courts will generally admit the facts found by foreign judgments.
However, some judges oppose the direct admission of foreign judgments as evidence on the grounds that some parties may use the rule as a strategy. They would first obtain a foreign judgment with favorable facts found thereby, and then file a lawsuit in China and present the foreign judgment as evidence. This will damage China’s judicial sovereignty if the foreign court is not competent under Chinese law, but through the admission of a foreign judgment, acquires de fatco (partial) jurisdiction over the case.
According to Dr. Li Qingming, Chinese courts can examine whether the foreign judgments have damaged China’s sovereignty, rights of the parties, and public interests first. If no, then the court should admit such foreign judgments as evidence.
Similarly, the SPC is also relaxing its attitude in this regard.
In 2016, Judge Zhang Yongjian (張勇健), then director of the Fourth Civil Division of the SPC, publicly agreed with the admission of foreign judgments as evidence. “If a party can prove the authenticity and legal effect of a foreign judgment or ruling, the Chinese court shall recognize the fact voluntarily admitted by the other party, and the fact stated in the foreign judgment or ruling without further requiring the party to present evidence therefor, until contradictory evidence is produced in its rebuttal”, said Judge Zhang Yongjian.
This judicial view is further confirmed in the SPC’s ruling “(2015) Min Ti No. 150” ((2015)民提字第150號(hào)) in the case of Dayou Xinya v. Li Ying & He Guoshun (大友新亞與李瓔、何國順財(cái)產(chǎn)損害賠償糾紛) on 27 July 2018. [5] The SPC held that though the foreign judgment (a Japanese judgment) is yet to be recognized, it is possible for the Chinese court to, combing with other evidential material, admit it into evidence. [6]
Again, it is noteworthy that the SPC has not yet promulgated judicial rules or policies therefor. Given the current situation, probably the most prudent way is to first apply to the Chinese court for recognition of the foreign judgment (if applicable), and then to present the foreign judgment as evidence to the Chinese court.
[1] 《最高人民法院關(guān)于民事訴訟證據(jù)的若干規(guī)定》
[2] 最高人民法院《涉外商事海事審判實(shí)務(wù)問題解答（一）》（2004年4月8日）。
[3] 中國遠(yuǎn)洋運(yùn)輸（集團(tuán)）總公司訴山東省濟(jì)寧市圣源對(duì)外貿(mào)易公司提單運(yùn)輸糾紛一案；青島海事法院（1997）青海法海商初字第381號(hào)民事判決書；原告陳某甲訴被告陳某乙離婚后財(cái)產(chǎn)糾紛一案，深圳市鹽田區(qū)人民法院（2013）深鹽法民一初字第202號(hào)民事判決書；原告陳某與被告張某甲離婚后財(cái)產(chǎn)糾紛一案，深圳市寶安區(qū)人民法院（2014）深寶法家初字第300號(hào)民事判決書；廣東發(fā)展銀行江門分行與香港新中地產(chǎn)有限公司借款相保糾紛上訴案最高人民法院（2001）民四終字第14號(hào)民事判決書。
[4] 參見再審申請(qǐng)人中國農(nóng)業(yè)銀行股份有限公司南京律鄴支行因與被申請(qǐng)人石中琦、石中瑜、一審第三人齊嘉、趙春明案外人執(zhí)行異議糾紛一案，最高人民法院（2016）最高法民申413號(hào)、（2016）最高法民申436號(hào)民事栽定書指出：在另案中，齊雨穎向法院提交了美國紐約州紐約郡高級(jí)法庭干2009年2月12日作出的索引號(hào)為05312576的離婚判決書。根據(jù)《中華人民共和國民事訴訟法》第282條的規(guī)定，外國判決須經(jīng)中國法院作出承認(rèn)裁定后才能在中國產(chǎn)生效力，因齊雨穎據(jù)交的美國離婚判決未經(jīng)中國法院依法定程序予以承認(rèn)，齊雨穎與石軍離婚的事實(shí)不應(yīng)在中國得到確認(rèn)。
又參見北京市第二中級(jí)人民法院（2004）二中民初字第12687號(hào)民事判決書。對(duì)該案的評(píng)述，參見黃進(jìn)、杜煥芳等：《中國國際私法司法實(shí)踐研究（2001-2010）》
[5] 大友新亞、李瓔財(cái)產(chǎn)損害賠償糾紛一案，最高人民法院(2015)民提字第150號(hào)再審審查與審判監(jiān)督民事判決書, available at http://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=91cd965135ff42b8a8b2a99900aa104e.
[6] 張勇健：《在全國涉外商事海事審判長(zhǎng)座談會(huì)上的講話》（2016年4月7日），載鐘健平主編：《中國海事審判（2015）》，廣州人民出版社2017年版，第15頁。
Cover Photo by cullen zh(https://unsplash.com/@cullenzh) on Unsplash
Contributors: Guodong Du 杜國棟 , Meng Yu 余萌
