Foreign parties who have been involved in Chinese proceedings will be aware that obtaining a favourable court or arbitration ruling is only half the battle won. Where the local Chinese party refuses to comply with the judgment or award voluntarily, locating assets and enforcing the judgment against these assets often requires considerable perseverance and familiarity with local conditions.
Recently, the Supreme People’s Court (SPC), the Supreme People’s Procuratorate (SPP) and the Ministry of Public Security jointly issued the Circular Concerning Several Issues of Strict Investigation and Penalty against Criminal Offences of Refusing to Enforce Judgments and Orders and of Resisting Court Enforcement with Violence (the Circular) to address these longstanding problems with enforcement of court judgments and orders, which are considered a major stumbling block to China’s legal reform process.
The Circular sets out eight scenarios under which defendants who resist enforcement of a court judgment or order can be detained for up to 15 days and face criminal charges of “resisting the enforcement of court judgments and orders” and “impeding the performance of official duties”.
Resisting the enforcement of court judgments and orders
According to the Circular, each of the following five scenarios will, where it frustrates the enforcement of the judgment or order, constitute an offence:
(1) the party against whom a judgment or an order has been given, transfers, or wilfully destroys property or transfers property without consideration, or transfers property at a price which is manifestly unreasonably low;
(2) a guarantor or the party against whom a judgment or an order has been given conceals, transfers, or wilfully destroys any property in respect of which security has been provided to the people’s court;
(3) the party obligated to assist in enforcement of a judgment or order refuses to render assistance upon receipt of an enforcement notice from the people’s court;
(4) the party against whom a judgment or an order has been given, the guarantor, or the party obligated to assist in the enforcement colludes with officers of the state authorities to impede enforcement by taking advantage of the functions and powers of such officers; and
(5) other circumstances in which a party is able to but refuses to enforce a judgment or order and the case is serious.
Impeding the performance of official duties
The following acts of resisting enforcement with violence will constitute offences of impeding the performance of official duties:
(1) assembly of a crowd to act boisterously; intruding upon the scene of enforcement; besiege, detaining or assaulting enforcement officers, thus frustrating the enforcement;
(2) destroying or seizing any case materials of the enforcement, vehicles and other equipment used for performance of official duties, the uniforms of enforcement officers, and the supporting documents for performance of official duties, leading to serious consequences; and
(3) impeding or resisting enforcement by using other violent or threatening means, thereby frustrating the enforcement.
Relationship between the courts, the procuratorates and the police in the enforcement of a court judgment or order
The Circular also sets out the relationship between the courts, the procuratorates and the police in the course of enforcing a court judgment and order.
The people’s court may first order judicial detention of any person who resists enforcement of a judgment or order and then transfer the case to the relevant public security authority where the suspected offence took place for further investigation.
If the people’s court considers that the relevant public security bureaus failed to docket a case for investigation, it may request the people’s procuratorate to intervene to supervise the investigation.
In the case where the people’s procuratorate decides not to prosecute a suspect for resisting enforcement or impeding the performance of official duties, the police may first raise a request for review. If such a request is not accepted, it may file a request with the next higher-ranking people’s court for a review.
Effectiveness of the Circular
The criminal offences and punishments set out in the Circular are not new. They are based on the principles and provisions that underlie the Criminal Law, the Criminal Procedure Law and the Interpretation of the National People’s Congress on Article 313 of the Criminal Procedure Law of the People’s Republic of China but the Circular is intended to make the relevant law and regulations more detailed and operable. While it certainly reflects the central government’s eagerness to improve and facilitate the enforcement of court judgments and orders at the local level, whether it will be effective in combating enforcement difficulties, which often involve allegations of corruption and dereliction of duty by officials, remains to be seen. Nonetheless, the Circular clearly represents a step in the correct direction.