June 30, 2015 marked the sixth anniversary of the Agreement for Cross-Strait Judicial Mutual Assistance. On the same day, China’s Supreme People’s Court (referred to herein as “the Supreme Court”) convened a press conference and reported to the media on the judicial mutual assistance program which has been under development with the R.O.C. since 2014. A total of 15 Taiwan-related judicial mutual assistance cases were cited. The Supreme Court also issued two judicial interpretations with respect to the recognition and enforcement of civil judgments in Taiwan, namely:
- “Rules of the Supreme People’s Court on Recognition and Enforcement of Civil Judgments in the Taiwan Area” (Judicial interpretation- No. 13)
- “Rules of the Supreme People’s Court on Recognition and Enforcement of Arbitration Rulings in the Taiwan Area” (Judicial interpretation- No. 14)
The above judicial interpretations both took effect on July 1, 2015.
With respect to recognition and enforcement of Taiwanese civil judgments on China, the Supreme Court has issued 4 judicial interpretations since 1998. The latest judicial interpretation would signify that the previous judicial interpretations are no longer enforceable. They were:
- “Rules of the Supreme People’s Court on Recognition and Enforcement of Civil Judgments in the Taiwan Area” (Judicial interpretation- No. 11)
- “Reply of the Supreme People’s Court on Whether People’s Court Should Accept Application of Litigants Holding Mediation Order of the Court in the Taiwan Area or Mediation Agreement Issued or Confirmed by the Relevant Authority in the Taiwan Area for Recognition of Such Mediation Order or Agreement” (Judicialinterpretation- No. 10)
- “Reply of the Supreme People’s Court on Whether the People’s Court Should Accept Application of Litigants Holding Order of Payment by Courts in the Taiwan Area for Recognition of Such Orders” (Judicial interpretation- No. 13)
- “Supplemental Regulations of the Supreme People’s Court on Recognition by the People’s Court of Civil Judgments of Taiwanese Courts” (Judicial interpretation- No. 4)
In general, both of the judicial interpretations issued on June 30, 2015 involve expansion of case jurisdiction points, appropriate liberalization of conditions for acceptance of cases, and the addition of remedies. A summary of their provisions is given below:
1. Expansion of Case Jurisdiction Points:
According to information released during the press conference, previous judicial interpretations required that the court which had jurisdiction to be that at the applicant’s place of residence or regular residence of the location of the property of the enforced party. In practice, there are individuals domiciled in Taiwan who do not have a residence or place of regular residence in China. If their application to the court for confirmation of special legal residence (not even in the case of application to the court for recognition and enforcement of judgment), they would have no recourse based on previous judicial interpretations. In contrast, the latest judicial interpretation allows for acceptance by the local Intermediate People’s Court or designated People’s Court of application to recognize civil judgments (and arbitration rulings) of Taiwanese courts based on the applicant’s residence, place of regular residence, or the residence of the party against whom the application is made (see Article 4 ofJudicial interpretation- No. 13 and No. 14.)
2. Relaxation of the Conditions for Accepting Cases
According to He Zhonglin, director of the Supreme People’s Court Hong Kong, Macau, and Taiwan Task Force: in the past, legal documents originating from Taiwan were required to be notarized by a notary public in Taiwan and certified by the relevant notary public association in China before they could be accepted by the People’s Court. According to the latest judicial interpretations, however, an applicant now only needs to provide the original copy of a civil judgment of a Taiwanese court together with an application form for the People’s Court to accept the application.
Article 7 of the “Rules of the Supreme People’s Court on Recognition and Enforcement of Civil Judgments in the Taiwan Area” provides that an applicant should submit an application form for recognition of civil judgment of Taiwanese court together with the original copy of the said court’s civil judgment and certificate of civil judgment (or a duplicate copy with has been certified to not contain any errors.) If such a civil judgment is made in absentia of the defendant, the applicant should also, at the time of its application, provide documentary proof with respect to the Taiwanese court having lawfully summoned the litigants. However, this requirement is not applicable if the fact of judgment in absentia is already stated in the civil judgment.
3. Convenience to Litigants
Pursuant to the new judicial interpretations, if the applicant engages an agent to apply for recognition of civil judgment (or arbitration ruling) in Taiwan on its behalf, it should submit to the People’s Court a letter of authorization it duly signed or stamped. A letter of authorization that is signed or stamped by a litigant in Taiwan, Hong Kong, and Macau SARs, or other foreign countries should be duly notarized and certified. The aforesaid requirement would not apply, however, if such a letter of authorization is signed in the presence of a judge of the People’s Court or if it is certified by a notary public in China to have been signed in China (see Article 6 of Judicialinterpretation- No. 13 and No. 14.)
He Zhonglin, director of the Supreme People’s Court Hong Kong, Macau, and Taiwan Task Force, said that the above provision is intended to ensure the authenticity of the litigants’ identity, as well as to provide greater convenience.
4. Regularity of Procedure
For an application which meets the conditions set out in Articles 4 and 7 of Judicial interpretation- No. 13 and No. 14, the People’s Court should establish files within 7 days of receiving the application and notify the applicant and the respondent. It should at the same time also deliver the application form to the respondent. In the case of an application which does not meet these conditions, the People’s Court should issue its rejection order within 7 days of such application and give its reasoning for the rejection. Thereafter, the applicant is entitled to appeal such an order.
Director He said that the above new provisions allow respondents to know that the recognition procedure is being carried out and are further entitled to raise an opinion thereto. Before the new judicial interpretations were issued, it was quite difficult for an applicant to understand the progress of judicial recognition. There was no mutual judicial assistance across the Strait, and it was difficult for a party to understand the requirements for delivery to the opposing party. Under the new judicial interpretations, each party is required to comply with the relevant procedures; the parties are also required to deliver the documents to each other.
5. Application for Non-recognition and Dismissal of Judgment
Director He pointed out that: In the past, judicial interpretations merely stipulated the manner of not recognizing judgments. Non-recognition of a judgment had the same power of a court judgment — there was recognition of a substantive issue — and an applicant would be unable to re-apply for recognition and enforcement of the same judgment in a Taiwanese court. Furthermore, there were no other legal remedies.
According to the new judicial interpretations, the applicant only needs to submit a civil judgment of a Taiwanese court which has been certified as true and valid for review by the People’s Court. The People’s Court can only reject an application if the judgment’s veracity and validity cannot be determined. After such an application has been rejected, the applicant can supplement relevant information and make a new application (see Article 16 of Judicial interpretation- No. 13, and Article 15 ofJudicial interpretation- No. 14.)
6. Additional Remedies
The “Rules of the Supreme People’s Court on Recognition and Enforcement of civil judgments in the Taiwan Area” introduced a new remedial procedure. According to Article 18, if a litigant objects to the original judgment (i.e., unable to confirm the validity or authenticity of the document), the litigant may apply to the higher level of People’s Court for review within 10 days of delivery of the order of the People’s Court. In other words, a party that is not satisfied with a People’s Court’s ruling may apply for a one-time review of such a ruling by the higher People’s Court.
7. Period of Application for Recognition and Enforcement of Taiwan Judgments
The new judicial interpretations also specifically provide for the duration for application for recognition and enforcement of a judgment. The duration shall be pursuant to Article 239 of the Code of Civil Procedure of China (see Article 20 ofJudicial interpretation- No. 13, and Article 19 of Judicial interpretation- No. 14). In other words, an applicant may apply to a China Court for recognition and enforcement of a judgment made in Taiwan that is not more than two years old.
It remains to be seen how the introduction of the Rules of the Supreme People’s Court on Recognition and Enforcement of Civil Judgments in the Taiwan Area and the Rules of the Supreme People’s Court on Recognition and Enforcement of Arbitration Rulings in the Taiwan Area will impact intellectual property rights cases. According to publicly available data, no intellectual property cases have been handled to date under the existing mutual judicial assistance framework. As a result, the rules for application for recognition and enforcement of this type of cases remain unclear. Nevertheless, it is certain that the announcement of the new judicial interpretations for recognition of qualified Taiwan judgments and arbitration rulings has considerably simplified the procedure for acceptance of such cases. Indeed, this represents the first major step forward in mutual support of cross-strait judicial systems.