实务律师在办理涉外争议解决业务时，对于“对方当事人是否在境外具有可供执行的财产？中国法院作出的判决是否能在境外得到承认与执行？”等问题，是能否启动该项诉讼或仲裁程序的重要考量。特别是在某些国家尚未加入国际性的《承认与执行外国民商事判决公约》（The Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters），且此公约尚未真正实施前，上述问题都是涉外律师关注的焦点。本文将以澳大利亚为例，分析在该国承认与执行中国判决的法律依据与一般实施路径，同时引入一个成功案例来阐述在具体实践中可能存在的障碍和难点。
When handling foreign-related dispute resolution cases, practical lawyers will consider factors such as whether the opposite party has property which might be available to satisfy the Chinese judgment by enforcement abroad, and whether the judgment of the Chinese court can be recognized and enforced abroad. Such a practical lawyer would take these factors into account prior to starting the litigation or arbitration procedure and even, to the extent that it is possible, when preparing the relevant contract. As some countries have not yet signed The Recognition and Enforcement of Foreign judgment in Civil or Commercial Matters, whether judgments of Chinese courts will be recognized and enforced in foreign courts is an important matter for foreign-related lawyers. Taking Australia as the representative, this paper will briefly introduce the methods for the recognition and enforcement of Chinese judgments in common law countries, analyze the procedures and legal basis of Australian recognition and enforcement of foreign judgments, and summarize the key points and difficulties of Australian courts' implementation of Chinese judgments through a typical case.
Procedures and legal basis for Australia to recognize and enforce foreign judgments
In Australia the recognition and enforcement of foreign judgments (other than those from New Zealand in relation to which a separate agreement applies), is governed in relation to a limited list of countries by a statute called the Foreign Judgments Act 1991 (FJA). In relation to all other countries it is governed by the common law.
Statutory recognition and enforcement of foreign Court judgments
Section 5 of the FJA provides that if the Australian Government is satisfied that there will be substantial reciprocity of the benefits conferred by the FJA in relation to money judgments given in the courts of another country or province, the Regulations made under the authority of the FJA, may provide that the FJA applies to that country. The reciprocity applies to enforceable money judgments that are final and conclusive. A judgment is taken to be final and conclusive even though an appeal may be pending against if or it may still be subject to appeal.
So far 36 countries and provinces have been recognised under the FJA. Presently the People’s Republic of China is not so recognised, other than in relation to the Hong Kong Special Administrative Region.
Section 6 of the FJA provides that a judgment creditor under a judgment obtained in a foreign country or province to which the Act applies, may apply to register the judgment in the Federal Court of Australia or to the Supreme Court of a State or Territory of Australia at any time within a 6 years after the date of the judgment in the foreign country. Subject to the FJA and the applicable Rules of Court, the court is to order that the foreign judgment is to be registered as a judgment of that Court. Thereafter the Judgment creditor may enforce that judgment within Australia by any of the methods by which such judgments may be enforced including sale of property and assets, garnishee orders against debts owed, and eventual declaration of bankruptcy of the judgment debtor. Section 7 of the FJA provides for a limited set of criteria where the judgment debtor may apply in Australia to have the registration of the foreign judgment set aside. The limited grounds for setting aside include where the foreign court did not have jurisdiction in the circumstances of the case, where the judgment debtor had not been duly served with notice of the proceedings prior to the foreign judgment, or where the judgment was obtained by fraud.
Common law recognition and enforcement of foreign Court judgments
It is possible to enforce judgments of foreign courts in Australia by using the common law. This applies to the judgments of courts which are not included in the FJA. The party seeking to enforce the foreign judgment, commences a new court proceeding in Australia as the plaintiff and sues the debtor on the judgment. The judgment creditor can sue either for the judgment amount as a debt. Alternatively, or in addition, the judgment creditor can sue on the original cause of action for which judgment was obtained in the foreign court. The judgment creditor then relies on the foreign judgment as creating an estoppel which prevents the judgment debtor from raising any defence which was, or could have been raised in the foreign proceedings. The same general criteria apply to common law enforcement as apply generally under the FJA namely, that:
a. the judgment of the foreign court needs to be final and conclusive,
b. from a court of record,
c. impose a personal obligation on the judgment debtor,
d. the foreign court must have exercised an “international” jurisdiction that Australian courts recognise;
e. the parties must be the same;
f. the judgment must be for a fixed sum although certain non--money judgment may be of available in equity.
g. The judgment must not be capable of being set aside on grounds such as it was given, in the absence of the appearance of the defendant, or, where enforcement in Australia would be against Australian public policy.
The common law method of enforcement, is rarely utilised because of the evidentiary, practical and cost issues. Usually the party seeking to enforce the foreign judgment in Australia will need to call expert evidence of the foreign law to demonstrate that the common law requirements of the Australian court were complied with, within the foreign jurisdiction.
A recent case on common law enforcement
The availability of procedures and a legal basis for the recognition and enforcement of Chinese judgments in another country, does not necessarily mean that an application for recognition will succeed. A recent case has caused high attention in Australia and China. The authors try to analyse the difficulties and the core-points of the recognition and enforcement of foreign judgments through this case.
2.1 案例背景 Brief introduction of the case
In Suzhou Haishun Investment Management Co Ltd v Zhao & Ors  VSC 110 (27 February 2019) the Supreme Court of Victoria recently gave common law recognition and enforcement to a judgment of a court in the People’s Republic of China. In 2014 the plaintiff had obtained three judgments in the People’s Court of Huqiu District, Suzhou City in the People’s Republic of China against the defendant, Ms Zhao based on debts owed under three separate loan agreements. In 2015 the plaintiff applied for common law enforcement of the Chinese judgments in Australia by way of summary judgment against the defendants. Summary judgment is available where a plaintiff persuades the Court that the defendant’s case is “doomed to fail” or “manifestly hopeless”. It avoids a lengthy defended hearing.
Ms Zhao claimed in her defence that she had not been aware of the Chinese court proceeding until she was served with a copy of the Australian proceeding. In a parallel proceeding the plaintiff Suzhou Haishun also alleged that Ms Zhao, assisted by her son and a corporation, had attempted, by means of various misrepresentations and transactions to evade the consequences of the Chinese judgments. The parties had agreed that, given certain time constraints, the only application which the Victorian Supreme Court would deal with would be the claim for judgment based on the three judgments in China.
The Supreme Court of Victoria had earlier (in 2018) made a freezing order which prohibited the defendants from removing from Australia assets up to the unencumbered value of AUD $8,000,000.
The main points and difficulties of the case are summarized as follows:
Whether the respondent was a permanent resident of China
The Court noted at  of the judgment that there was an issue between the parties as to the adequacy of service of notice of the Chinese proceedings on Ms Zhao. The court considered that this was “a question that must be determined according to Chinese law”. Ms Zhao had been registered to an address in China under the hukou system. In addition, she possessed a Chinese identity card and held a Chinese passport. Service had been attempted at her registered address without success. Subsequently the Suzhou Court publicly advertised the proceedings. Suzhou Haishun called evidence as to Chinese law from a Chinese legal practitioner. This legal practitioner had also been present at part of the hearing in the Suzhou Court. He gave evidence that a man who described himself as an employee of a corporation controlled by Ms Zhao attended the Chinese court and gave evidence. During this hearing this man referred to Ms Zhao as “the boss”.
Whether the Chinese court had legally and effectively served legal documents to the parties
The Australian court found that the question which it had to decide was whether service on Ms Zhao had been effected in accordance with Chinese law, and even if it was, had there been a denial of natural justice (which would justify dismissing application for summary judgment). The Australian court held that there had been no denial of natural justice and referred to the expert evidence of Chinese law, and article 92 of the Chinese Civil Procedure Law which permits service of process by public announcement when the whereabouts of the person to be served is unknown. Ms Zhao also argued that she was not domiciled at her registered address in China and this affected the validity of the service upon her. Judge Cameron in the Victorian Supreme Court found that:
77 Cases such as these are necessarily vexed. It is a cornerstone of our justice system that litigants are aware of the case made against them, however, to be balanced against this is whether the laws of a foreign sovereign state are complied with and whether or not they offend this jurisdiction’s values as to the fair and reasonable administration of justice.
Whether Chinese Court had jurisdiction
Her Honour found that the arguments of Ms Zhao in relation to domicile were not strong enough to defeat the application for summary judgment and that:
81 Ms Zhao was, in my opinion, entirely aware of the institution of the Chinese proceedings, was a full Chinese citizen and thus subject to their laws, and contractually submitted to the jurisdiction.
Whether there would be any obvious substantial unfairness or injustice in recognising the Chinese judgment, and whether making summary judgment is a denial of natural justice
Her Honour concluded her judgment for detailed reasons, in the following terms:
111 I do not consider that there is any substantial injustice or unfairness in granting summary judgment, although exercised with caution, in the circumstances of this case.
112 I do not consider that there is any basis for the community to lose confidence in the administration of justice, nor do I consider it a denial of natural justice for summary judgment to be granted in this case. It is an inevitable decision that if an individual is subject to and submits to the laws and procedures of a foreign jurisdiction then, unless it offends this Court’s principles of justice or fairness encapsulated in the rule of law, then it is appropriate for this Court to have regard to the decisions of that foreign jurisdiction as the basis to make an order for summary judgment.
Whether the respondent had a valid defense
113 In my opinion, Suzhou Haishun has made out its case in relation to its summary judgment application insofar as it relates to the enforcement of outstanding debts under the loan agreements. I do not consider, based on the facts and matters set out above, that Ms Zhao has any real prospects of success in defending a judgment in relation to the loan agreements.
The authors expect that through the legal cooperation between Chinese foreign-related lawyers and overseas lawyers, the relevant applications can be reasonably prejudged, so as to improve the success rate of recognition and execution of Chinese judgments in foreign countries. It is to be hoped that through the combined operation of the International Arbitration Agreement (IAA) and common law recognition of Court judgments that trade and commerce between Australia and the People’s Republic of China might further develop as parties come to understand that there are available and effective enforcement mechanisms.