Arrangement of the Supreme People's Court between the Courts of the Mainland and the Hong Kong Special Administrative Region on Mutual Recognition and Enforcement of Judgments of Civil and Commercial Cases under the Jurisdiction as Agreed to by the Parties Concerned

最高人民法院关于内地与香港特别行政区法院相互认可和执行当事人协议管辖的民商事案件判决的安排

Promulgating Institution: Supreme People's Court

Document Number: Fa Shi [2008] No. 9

Promulgating Date: 07/03/2008

Effective Date: 08/01/2008

颁布机关: 最高人民法院

文    号: 法释[2008]9号

颁布时间: 07/03/2008

实施时间: 08/01/2008

Text

正文

Announcement of the Supreme People's Court

最高人民法院公告

The Supreme People's Court and HK SAR achieved consensus on Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong King Special Administrative Region Pursuant to Choice of Court Agreements Between Parties Concerned (hereinafter referred to as Arrangement) through consultation and signed on July 14, 2006, according to prescription in article 95 of The Basic Law of Hong Kong Administrative Region of the People's Republic of China. The Arrangement was passed in 1390th meeting of the Judicial Committee of the Supreme People's Court on June 12, 2006 and is hereby announced. This Arrangement takes effect on August 1, 2008 according to agreement achieved between both parties.

July 3, 2008

    根据《中华人民共和国香港特别行政区基本法》第九十五条的规定，最高人民法院与香港特别行政区经协商，达成《关于内地与香港特别行政区法院相互认可和执行当事人协议管辖的民商事案件判决的安排》（以下简称《安排》），并于2006年7月14日签署。《安排》已于2006年6月12日由最高人民法院审判委员会第1390次会议通过，现予公布。根据双方一致意见，本《安排》自2008年8月1日起生效。

二○○八年七月三日

Arrangement of the Supreme People's Court between the Courts of the Mainland and the Hong Kong Special Administrative Region on Mutual Recognition and Enforcement of Judgments of Civil and Commercial Cases under the Jurisdiction as Agreed to by the Parties Concerned

最高人民法院关于内地与香港特别行政区法院相互认可和执行当事人协议管辖的民商事案件判决的安排

In accordance with the provision of Article 95 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and through mutual consultation between the Supreme People's Court and the Government of the Hong Kong Special Administrative Region (HKSAR), the following Arrangement is hereby made for the recognition and enforcement of judgments in civil and commercial matters pursuant to choice of court agreements made between the parties concerned :

    根据《中华人民共和国香港特别行政区基本法》第九十五条的规定，最高人民法院与香港特别行政区政府经协商，现就当事人协议管辖的民商事案件判决的认可和执行问题作出如下安排：

   Article 1   Where any people's court of the Mainland or any court of the HKSAR has made an enforceable final judgment requiring payment of money in a civil and commercial case pursuant to a choice of court agreement in writing, any party concerned may apply under this Arrangement to a people's court of the Mainland or a court of the HKSAR for recognition and enforcement of the judgment.

     第一条 内地人民法院和香港特别行政区法院在具有书面管辖协议的民商事案件中作出的须支付款项的具有执行力的终审判决,当事人可以根据本安排向内地人民法院或者香港特别行政区法院申请认可和执行。

   Article 2   "An enforceable final judgment" under this Arrangement means -

(1) in the case of the Mainland, :

(i) any judgment made by the Supreme People's Court;

(ii) any judgment of the first instance made by a Higher or Intermediate People's Court or a Basic People's Court which has been authorized to exercise jurisdiction of the first instance in civil and commercial cases involving foreign, Hong Kong, Macao and Taiwan parties (a list of such courts is at Annex), from which no appeal is allowed according to the law or in respect of which the time limit for appeal has expired and no appeal has been filed; any judgment of the second instance; and any legally effective judgment made in accordance with the procedure for trial supervision by bringing up the case for a retrial by a people's court at the next higher level.

(2) in the case of the HKSAR, any legally effective judgment made by the Court of Final Appeal, the Court of Appeal and the Court of First Instance of the High Court and the District Court.

For the purpose of this Arrangement, a judgment, in the case of the Mainland, includes any judgment, ruling, conciliation statement and order of payment and, in the case of the HKSAR, includes any judgment, order and allocatur.

Where a case is to be retried by a people's court of the Mainland in accordance with the law after an application for recognition and enforcement of the judgment in the same case has been filed with a court of the HKSAR, the case shall be brought up for retrial by a people's court one level higher than the people's court which made the legally effective judgment.

     第二条 本安排所称“具有执行力的终审判决”:

    (一)在内地是指:

    1.最高人民法院的判决;

    2.高级人民法院、中级人民法院以及经授权管辖第一审涉外、涉港澳台民商事案件的基层人民法院(名单附后)依法不准上诉或者已经超过法定期限没有上诉的第一审判决,第二审判决和依照审判监督程序由上一级人民法院提审后作出的生效判决。

    (二)在香港特别行政区是指终审法院、高等法院上诉法庭以及原讼法庭和区域法院作出的生效判决。

    本安排所称判决,在内地包括判决书、裁定书、调解书、支付令;在香港特别行政区包括判决书、命令和诉讼费评定证明书。

    当事人向香港特别行政区法院申请认可和执行判决后,内地人民法院对该案件依法再审的,由作出生效判决的上一级人民法院提审。

   Article 3   A "choice of court agreement in writing" referred to in this Arrangement means any agreement in written form made, as from the day of commencement of this Arrangement, by the parties concerned in which a people's court of the Mainland or a court of the HKSAR is expressly designated as the court having sole jurisdiction for resolving any dispute which has arisen or may arise in respect of a particular legal relationship.

A "particular legal relationship" referred to in this Article means civil and commercial contracts between the parties concerned, excluding any employment contracts and contracts to which a natural person acting for personal consumption, family or other non-commercial purposes is a party.

"In written form" referred to in this Article means a form in which the contents may be displayed in visible form and are accessible for subsequent reference and use, such as a written contract, a letter or an electronic data message (including a telegram, a telex, a facsimile, an electronic data interchange and an e-mail).

A choice of court agreement in writing may consist of one or several documents in written form.

Unless otherwise provided in the contract, a clause for the choice of court in a contract exists independently and its validity will not be affected by the modification, discharge, termination or nullification of the contract.

     第三条 本安排所称“书面管辖协议",是指当事人为解决与特定法律关系有关的已经发生或者可能发生的争议,自本安排生效之日起,以书面形式明确约定内地人民法院或者香港特别行政区法院具有唯一管辖权的协议。

    本条所称“特定法律关系",是指当事人之间的民商事合同,不包括雇佣合同以及自然人因个人消费、家庭事宜或者其它非商业目的而作为协议一方的合同。

    本条所称“书面形式"是指合同书、信件和数据电文(包括电报、电传、传真、电子数据交换和电子邮件)等可以有形地表现所载内容、可以调取以备日后查用的形式。

    书面管辖协议可以由一份或者多份书面形式组成。除非合同另有规定,合同中的管辖协议条款独立存在,合同的变更、解除、终止或者无效,不影响管辖协议条款的效力。

   Article 4   An application for recognition and enforcement of a judgment in civil and commercial matters which meets the requirements of this Arrangement shall be filed, in the case of the Mainland, with the Intermediate People's Court at the place of domicile or ordinary residence of the party against whom the application is filed or the place where the property of that party is situated and, in the case of the HKSAR, with the High Court of the HKSAR.

     第四条 申请认可和执行符合本安排规定的民商事判决,在内地向被申请人住所地、经常居住地或者财产所在地的中级人民法院提出,在香港特别行政区向香港特别行政区高等法院提出。

   Article 5   If the place of domicile or ordinary residence of the party against whom the application is filed or the place where the property of that party is situated falls within the jurisdiction of different Intermediate People's Courts of the Mainland, the applicant shall elect to apply to any one of such people's courts for recognition and enforcement of the judgment, and shall not file his applications separately with two or more people's courts.

If the place of domicile or ordinary residence of the party against whom the application is filed or the place where the property of that party is situated falls within the Mainland and within the HKSAR, the applicant may file separate applications with the courts of both places at the same time. The total amount recovered from enforcing the judgment in the courts of the two places respectively shall in no case exceed the sum specified in the judgment. The court of one side which has enforced the judgment in part or in whole shall, at the request of the court of the other side, provide information on the status of its enforcement.

     第五条 被申请人住所地、经常居住地或者财产所在地在内地不同的中级人民法院辖区的,申请人应当选择向其中一个人民法院提出认可和执行的申请,不得分别向两个或者两个以上人民法院提出申请。被申请人的住所地、经常居住地或者财产所在地,既在内地又在香港特别行政区的,申请人可以同时分别向两地法院提出申请,两地法院分别执行判决的总额,不得超过判决确定的数额。已经部分或者全部执行判决的法院应当根据对方法院的要求提供已执行判决的情况。

   Article 6   An applicant applying to the court concerned for recognition and enforcement of a judgment shall submit the following documents :

(1) an application for recognition and enforcement;

(2) a copy of the judgment sealed by the court which made the final judgment;

(3) a certificate issued by the court which made the final judgment, certifying that the judgment is a final judgment as referred to in Article 2 of this Arrangement and enforceable at the place where the judgment was made;

(4) identification documents :

(i) where the applicant is a natural person, an identity card or a notarized copy of the identity card shall be submitted;

(ii) where the applicant is a legal person or any other organization, a notarized copy of registration record shall be submitted;

(iii) where the applicant is a foreign person or any other organization, corresponding notarization and authentication documents shall be submitted.

Where any document submitted to a people's court of the Mainland is not in the Chinese language, the applicant shall submit a Chinese translation which has been duly certified correct.

No further notarization is required by a court of the place where enforcement of the judgment is sought in respect of the certificate issued by the court as required by this Article.

     第六条 申请人向有关法院申请认可和执行判决的,应当提交以下文件:

    (一)请求认可和执行的申请书;

    (二)经作出终审判决的法院盖章的判决书副本;

    (三)作出终审判决的法院出具的证明书,证明该判决属于本安排第二条所指的终审判决,在判决作出地可以执行;

    (四)身份证明材料:

    1.申请人为自然人的,应当提交身份证或者经公证的身份证复印件;2.申请人为法人或者其它组织的,应当提交经公证的法人或者其它组织注册登记证书的复印件;

    3.申请人是外国籍法人或者其它组织的,应当提交相应的公证和认证材料。

    向内地人民法院提交的文件没有中文文本的,申请人应当提交证明无误的中文译本。

    执行地法院对于本条所规定的法院出具的证明书,无需另行要求公证。

   Article 7   An application for recognition and enforcement shall specify the following :

(1) where the party concerned is a natural person, his name and domicile; where the party concerned is a legal person or any other organization, its name, domicile and the name, duties and domicile of its legal representative or principal responsible person;

(2) the grounds for and particulars of the application; the place where the property of the party against whom the application is filed is situated; and the status of the property;

(3) whether any application has been made for enforcement of the judgment at the place where the judgment was made and the status of its enforcement.

     第七条 请求认可和执行申请书应当载明下列事项:

    (一)当事人为自然人的,其姓名、住所;当事人为法人或者其它组织的,法人或者其它组织的名称、住所以及法定代表人或者主要负责人的姓名、职务和住所;

    (二)申请执行的理由与请求的内容,被申请人的财产所在地以及财产状况;

    (三)判决是否在原审法院地申请执行以及已执行的情况。

   Article 8   Except otherwise provided in this Arrangement, the procedure for an applicant to apply for recognition and enforcement of a judgment made by a people's court of the Mainland or a court of the HKSAR shall be governed by the law of the place where enforcement of the judgment is sought.

The time limit for an applicant to apply for recognition and enforcement of a judgment shall be one year if one or both of the parties are natural persons; six months if both parties are legal persons or any other organizations.

Where an application for enforcement of a judgment made by a court of the Mainland is made in the HKSAR, the above-mentioned time limit shall be calculated from the last day of the period for performance specified in the judgment. If the judgment specifies performance in stages, the time limit shall be calculated from the last day of the period specified for each stage of performance. Where an application for enforcement of a judgment made by a court of the HKSAR is made in the Mainland, the time limit shall be calculated from the day on which the judgment becomes enforceable, which shall be the day of the judgment unless the judgment specifies another period of performance, in which case the time limit shall be calculated from the last day of the period of performance specified in the judgment

     第八条 申请人申请认可和执行内地人民法院或者香港特别行政区法院判决的程序，依据执行地法律的规定。本安排另有规定的除外。

    申请人申请认可和执行的期限，双方或者一方当事人是自然人的为一年，双方是法人或者其它组织的为六个月。

    前款规定的期限，内地判决到香港特别行政区申请执行的，从判决规定履行期间的最后一日起计算，判决规定分期履行的，从规定的每次履行期间的最后一日起计算;香港特别行政区判决到内地申请执行 的，从判决可强制执行之日起计算，该日为判决上注明的判决日期，判决对履行期限另有规定的，从规定的履行期限届满后开始计算。

   Article 9   With respect to a judgment subject to an application for recognition and enforcement, if a debtor under the original judgment adduces evidence to show any of the following situations, the court dealing with the application shall, upon having examined such evidence and found any of the said situations proved, refuse to recognize and enforce the judgment :

(1) the choice of court agreement is invalid under the law of the place of the court chosen by agreement of the parties where the original trial was conducted, unless the chosen court has determined that the choice of court agreement is valid;

(2) the judgment has been wholly satisfied;

(3) the court of the place where enforcement of the judgment is sought has exclusive jurisdiction over the case according to the law of the same place;

(4) the party that did not appear in court and against whom a judgment was given had not been summoned according to the law of the place where the original trial was conducted or the party had been summoned according to such law but had not been given such time to defend the proceedings as specified by such law. However, if the service was effected by way of public announcement according to the law or relevant regulations of the place where the original trial was conducted, it shall not be regarded as a case mentioned above;

(5) the judgment has been obtained by fraud;

(6) a judgment on the same cause of action between the parties has been made by a court of the place where enforcement of the judgment is sought, or by a court of a foreign country or outside the territory, or an arbitral award has been made by the arbitration body concerned, and the said judgment or award has already been recognized or enforced by the court of the place where enforcement of the judgment is sought.

Recognition and enforcement of a judgment shall be refused if the people's court of the Mainland considers that the enforcement of the judgment made by the court of the HKSAR in the Mainland is contrary to the social and public interests of the Mainland, or if the court of the HKSAR considers that the enforcement of the judgment made by the people's court of the Mainland in the HKSAR is contrary to the public policy of the HKSAR.

     第九条 对申请认可和执行的判决,原审判决中的债务人提供证据证明有下列情形之一的,受理申请的法院经审查核实,应当裁定不予认可和执行:

    (一)根据当事人协议选择的原审法院地的法律,管辖协议属于无效。但选择法院已经判定该管辖协议为有效的除外;

    (二)判决已获完全履行;

    (三)根据执行地的法律,执行地法院对该案享有专属管辖权;

    (四)根据原审法院地的法律,未曾出庭的败诉一方当事人未经合法传唤或者虽经合法传唤但未获依法律规定的答辩时间。但原审法院根据其法律或者有关规定公告送达的,不属于上述情形;

    (五)判决是以欺诈方法取得的;

    (六)执行地法院就相同诉讼请求作出判决,或者外国、境外地区法院就相同诉讼请求作出判决,或者有关仲裁机构作出仲裁裁决,已经为执行地法院所认可或者执行的。

    内地人民法院认为在内地执行香港特别行政区法院判决违反内地社会公共利益,或者香港特别行政区法院认为在香港特别行政区执行内地人民法院判决违反香港特别行政区公共政策的,不予认可和执行。

   Article 10   Where, in the case of a judgment made by a court of the HKSAR, a judgment debtor concerned has lodged an appeal or an appeal is pending, a people's court of the Mainland may, upon having examined the above situation and found it proved, suspend the recognition and enforcement procedures. After the appeal, the recognition and enforcement procedures shall be resumed if the original judgment is upheld in part or in whole, or terminated if the original judgment is reversed.

Where, in the case of a judgment made by a people's court of the Mainland, a decision has been made by a local people's court of the Mainland to bring up the case for retrial in accordance with the procedure for trial supervision, or a decision has been made by the Supreme People's Court to bring up the case for retrial, the court of the HKSAR may, upon having examined the above situation and found it proved, may suspend the recognition and enforcement procedures. The recognition and enforcement procedures shall be resumed if the original judgment is upheld in part or in whole upon retrial, or terminated if the original judgment is reversed upon retrial.

     第十条 对于香港特别行政区法院作出的判决，判决确定的债务人已经提出上诉，或者上诉程序尚未完结的，内地人民法院审查核实后，可以中止认可和执行程序。经上诉，维持全部或者部分原判决的，恢复认可和执行程序;完全改变原判决的，终止认可和执行程序。

    内地地方人民法院就已经作出的判决按照审判监督程序作出提审裁定，或者最高人民法院作出提起再审裁定的，香港特别行政区法院审查核实后，可以中止认可和执行程序。再审判决维持全部或者部分原判决的，恢复认可和执行程序;再审判决完全改变原判决的，终止认可和执行程序。

   Article 11   A judgment recognized in accordance with this Arrangement shall have the same force and effect as one being made by a court of the place where enforcement of the judgment was sought.

     第十一条 根据本安排而获认可的判决与执行地法院的判决效力相同。

   Article 12   Where any party concerned is aggrieved by the decision on the recognition and enforcement of a judgment, he may apply, in the case of the Mainland, to a people's court at the next higher level for review. In the case of the HKSAR, he may appeal against the decision in accordance with its law.

     第十二条 当事人对认可和执行与否的裁定不服的,在内地可以向上一级人民法院申请复议,在香港特别行政区可以根据其法律规定提出上诉。

   Article 13   The court shall not accept another action brought by a party based on the same facts during the period in which an application for recognition and enforcement of the judgment is being dealt with by the court.

The court shall not accept another action brought by a party based on the same facts if the judgment has been recognized and enforced by the court.

Where recognition or enforcement of a judgment has been refused under Article 9 of this Arrangement, the applicant shall not make another application for recognition and enforcement of the judgment but is allowed to bring an action on the same facts in a court of the place where enforcement of the judgment is sought in accordance with the law of the same place.

     第十三条 在法院受理当事人申请认可和执行判决期间,当事人依相同事实再行提起诉讼的,法院不予受理。

    已获认可和执行的判决,当事人依相同事实再行提起诉讼的,法院不予受理。

    对于根据本安排第九条不予认可和执行的判决,申请人不得再行提起认可和执行的申请,但是可以按照执行地的法律依相同案件事实向执行地法院提起诉讼。

   Article 14   The court may, before or after accepting any application for recognition and enforcement of a judgment and as requested by the applicant, impose property preservation or mandatory measures upon assets of the party against whom the application is filed, in accordance with the law of the place where enforcement of the judgment is sought on property preservation or injunction restraining the transfer of assets.

     第十四条 法院受理认可和执行判决的申请之前或者之后,可以按照执行地法律关于财产保全或者禁制资产转移的规定,根据申请人的申请,对被申请人的财产采取保全或强制措施。

   Article 15   Any party who applies to the relevant court for enforcement of a judgment shall pay the enforcement fees or court fees prescribed by the laws and regulations regarding the costs of litigation of the place where enforcement of the judgment is sought.

     第十五条 当事人向有关法院申请执行判决,应当根据执行地有关诉讼收费的法律和规定交纳执行费或者法院费用。

   Article 16   The scope of reciprocal recognition and enforcement of judgments by the courts of the Mainland and of the HKSAR shall include, apart from the sum specified in the judgment, any interest that becomes due under the judgment as well as lawyers' fees and litigation costs that have been certified by the court. However, taxes and fines are not included.

In the case of the HKSAR, "litigation costs" refer to the costs taxed in an allocatur or ordered by a judge or registrar.

     第十六条 内地与香港特别行政区法院相互认可和执行的标的范围,除判决确定的数额外,还包括根据该判决须支付的利息、经法院核定的律师费以及诉讼费,但不包括税收和罚款。在香港特别行政区诉讼费是指经法官或者司法常务官在诉讼费评定证明书中核定或者命令支付的诉讼费用。

   Article 17   This Arrangement shall apply to any judgment made after the day of commencement of this Arrangement (including the day of commencement) by the courts of the Mainland and of the HKSAR.

     第十七条 内地与香港特别行政区法院自本安排生效之日(含本日)起作出的判决,适用本安排。

   Article 18   In the event of any problem arising in the course of implementing this Arrangement or a need for amendment of this Arrangement, it shall be resolved through consultations between the Supreme People's Court and the Government of the HKSAR.

     第十八条 本安排在执行过程中遇有问题或者需要修改,由最高人民法院和香港特别行政区政府协商解决。