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 (李庆明), 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” (论域外民事判决作为我国民事诉讼中的证据), 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” (国际法研究) (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 (张勇健), 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号) in the case of Dayou Xinya v. Li Ying & He Guoshun (大友新亚与李璎、何国顺财产损害赔偿纠纷) 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] 《最高人民法院关于民事诉讼证据的若干规定》
[2] 最高人民法院《涉外商事海事审判实务问题解答（一）》（2004年4月8日）。
[3] 中国远洋运输（集团）总公司诉山东省济宁市圣源对外贸易公司提单运输纠纷一案；青岛海事法院（1997）青海法海商初字第381号民事判决书；原告陈某甲诉被告陈某乙离婚后财产纠纷一案，深圳市盐田区人民法院（2013）深盐法民一初字第202号民事判决书；原告陈某与被告张某甲离婚后财产纠纷一案，深圳市宝安区人民法院（2014）深宝法家初字第300号民事判决书；广东发展银行江门分行与香港新中地产有限公司借款相保纠纷上诉案最高人民法院（2001）民四终字第14号民事判决书。
[4] 参见再审申请人中国农业银行股份有限公司南京律邺支行因与被申请人石中琦、石中瑜、一审第三人齐嘉、赵春明案外人执行异议纠纷一案，最高人民法院（2016）最高法民申413号、（2016）最高法民申436号民事栽定书指出：在另案中，齐雨颖向法院提交了美国纽约州纽约郡高级法庭干2009年2月12日作出的索引号为05312576的离婚判决书。根据《中华人民共和国民事诉讼法》第282条的规定，外国判决须经中国法院作出承认裁定后才能在中国产生效力，因齐雨颖据交的美国离婚判决未经中国法院依法定程序予以承认，齐雨颖与石军离婚的事实不应在中国得到确认。
又参见北京市第二中级人民法院（2004）二中民初字第12687号民事判决书。对该案的评述，参见黄进、杜焕芳等：《中国国际私法司法实践研究（2001-2010）》
[5] 大友新亚、李璎财产损害赔偿纠纷一案，最高人民法院(2015)民提字第150号再审审查与审判监督民事判决书, available at http://wenshu.court.gov.cn/website/wenshu/181107ANFZ0BXSK4/index.html?docId=91cd965135ff42b8a8b2a99900aa104e.
[6] 张勇健：《在全国涉外商事海事审判长座谈会上的讲话》（2016年4月7日），载钟健平主编：《中国海事审判（2015）》，广州人民出版社2017年版，第15页。
Cover Photo by cullen zh(https://unsplash.com/@cullenzh) on Unsplash
Contributors: Guodong Du 杜国栋 , Meng Yu 余萌
