Qingdao Intermediate People's Court of Shandong Province of the People's Republic of China
Civil Ruling
(2018) Lu 02 Xie Wai Ren No.6
Applicant: CHOIJONGWON, male, born on December 25, 1967, South Korean, place of domicile: South Korea
Attorneys: Piao Yuchuan, lawyer of Shandong Senrong Law Office.
Wang Li, apprentice lawyer of Shandong Senrong Law Office.
Respondent: YOONJIYOUNG, female, born on February 6, 1974, South Korean, place of residence in China: Shinan District, Qingdao City, Shandong Province, People's Republic of China.
Translators: Cao Yajie, female, born on February 14, 1985, place of residence: Shinan District, Qingdao City, Shandong Province, People's Republic of China.
HYUN BONA, female, born on May 1, 1984, South Korean, place of residence: No. 2, Haiqing Road, Laoshan District, Qingdao City, Shandong Province, People's Republic of China.
Attorneys: Wang Lei, lawyer of Shandong Bairui Law Office.
Attorneys: Guo Wenwen, apprentice lawyer of Shandong Bairui Law Office.
The case of application for recognition and enforcement of the civil judgment "2017 GADAN No.15740" (2017甲单15740号) issued by Suwon District Court of South Korea, was docketed by the Court on 15 October 2018. The Court formed a collegial panel according to law to review the case and organized the parties concerned to make inquiries. This case is decided and closed now.
The applicant claims that the respondent borrowed 80 million Korean won from him on 6 January 2009. Thereafter, the applicant sued in Suwon District Court of South Korea in 2017. On 20 July 2017, Suwon District Court of South Korea made a judgment, ordering the respondent to pay 80 million Korean won and the interest calculated at the annual interest rate of 15% to the applicant from 17 June 2017 to the date of full payment. Due to the facts that the respondent has resided for a long time in Chengyang District, Qingdao City, Shandong Province, the People's Republic of China, and that the majority of the property of the respondent are all located in China, the applicant hereby applies to the Court for recognition and enforcement of the judgment "2017 GADAN No.15740" made by Suwon District Court of South Korea on 20 July 2017 in accordance with relevant laws and regulations of the People's Republic of China.
The respondent states that she does not recognize the facts and reasons claimed by the applicant. The 80 million Korean won was involved in the criminal proceedings of both parties in 2009, when it was identified as investment funds. She does not agree to regard the 80 million yuan as borrowed funds and therefore does not recognize the judgment. She has no knowledge of the South Korean judgment involved in the case. Knowing that she was in China, the applicant intentionally concealed it from the South Korean court, causing the South Korean court to make a default judgment when she did not appear in court. The procedure was illegal. In addition, the judicial system of South Korea sets the third instance as the final, and the respondent has contacted South Korean lawyers to initiate relief measures in the case. The respondent has no fixed residence in Qingdao and has no property available for execution. So Qingdao courts have no jurisdiction over this case. Shenyang Intermediate People's Court of Liaoning Province of the People's Republic of China, ruled in 2015 not to recognize the South Korean court's judgment, so the principle of reciprocity is not applicable to China and South Korea. Therefore, the application of the applicant should be rejected in this case.
After examination, it can be identified that Suwon District Court of South Korea made the judgment "2017 GADAN No.15740" on the borrowing case on 20 January 2017, ordering the respondent to pay 80 million Korean won and the interest calculated at the annual interest rate of 15% to the applicant from 17 June 2017 to the date of full payment and to bear the litigation costs. Master of Suwon District Court of South Korea confirmed that the judgment was served on the respondent on 28 July 2017 and was legally effective on 11 August 2017.
Ten years ago, the respondent came to Chengyang District, Qingdao City, Shandong Province, the People's Republic of China. Her family income is mainly from her husband's salary. She has no job or property in South Korea.
It was also found that Seoul District Court of South Korea made the judgment "1999 GAHE No.26523" (1999甲合26523号) on the case of payment by letter of credit on 5 November 1999. The judgment applied the principle of reciprocity to recognize the civil judgment "(1997) Weijing Zi Chu No.219" ((1997)潍经字初219号) issued by Weifang Intermediate People's Court of Shandong Province of the People's Republic of China. The case was decided in accordance with the content of the effective judgment made by the Chinese court.
The Court believes that in accordance with Article 281 of the Civil Procedure Law of the People's Republic of China, if a legally effective judgment or ruling made by a foreign court requires recognition and execution by a people's court of the People's Republic of China, the party concerned may directly apply for recognition and execution to the intermediate people's court with jurisdiction of the People's Republic of China. According to the facts identified by the Court, the respondent came to the People's Republic of China ten years ago and her habitual residence is located in Chengyang District, Qingdao City, Shandong Province, the People's Republic of China. So the Court has jurisdiction over the case.
Article 282 of the Civil Procedure Law of the People's Republic of China provides that, having received an application or a request for recognition and execution of a legally effective judgment or ruling of a foreign court, a people's court shall review such judgment or ruling pursuant to international treaties concluded or acceded to by the People's Republic of China or in accordance with the principle of reciprocity. If, upon such review, the people's court considers that such judgment or ruling neither contradicts the basic principles of the law of the People's Republic of China nor violates state sovereignty, security and the public interest, it shall rule to recognize its effectiveness. If execution is necessary, it shall issue an order of execution, which shall be implemented in accordance with the relevant provisions of the Law. If such judgment or ruling contradicts the basic principles of the law of the People's Republic of China or violates state sovereignty, security or the public interest, the people's court shall refuse to recognize and execute the judgment or ruling.
The civil judgment involved in the case was made by the South Korean court. China and South Korea have not concluded or jointly acceded to international treaties on mutual recognition and enforcement of effective judgment documents. The treaties on civil and commercial judicial assistance concluded between the two countries only stipulate recognition and enforcement of arbitral awards. Therefore, whether the applicant's application in this case should be supported should be reviewed in accordance with the principle of reciprocity. Since the South Korean court has recognized a civil judgment of Weifang Intermediate People's Court of Shandong Province in judicial practice, based on the principle of reciprocity, Chinese courts can recognize and enforce the civil judgment of South Korean court that meets the conditions. At the same time, the above judgment of Suwon District Court of South Korea was made on the loan relationship between the applicant and the respondent, recognition of which does not contradict the basic principles of our country's laws or violate state sovereignty, security and the public interest. Although the applicant claims not to have received the judgment in this case, the judgment states that the service method of the judgment is "service by publication" in accordance with the Civil Procedure Law of South Korea. The applicant also shows evidence issued by the South Korean court that the judgment has been served on the respondent and that the judgment had become legally effective. The evidence has been notarized, and has been cross-examined by the respondent, so the Court confirms its authenticity. Regarding the respondent's defense that the 80 million Korean won in the judgment was involved in the criminal proceedings in 2009 when it was identified as investment funds, and that she disagrees with the claim that the 80 million Korean won should be seen as borrowed funds, the Court believes that this case is to recognize and enforce the judgment or ruling of a foreign court, and the facts identified by the judgment of a foreign court and application of law are beyond the scope of the case's review.
In conclusion, in accordance with the provisions of Articles 281 and 282 of the Civil Procedure Law of the People's Republic of China, the ruling is as follows:
Recognizing and enforcing the civil judgment "2017 GADAN No.15740" issued by Suwon District Court of South Korea.
The application fee, RMB￥100, shall be borne by the respondent.
Presiding Judge Wang Xiaoqiong
Judge Wang yingying
Judge Yu Meng
25 March 2009
Law Clerk Qi Kang