On The Reciprocal Recognition And Enforcement For The Judgments Of Courts Between The Mainland And Hong Kong

China’s mainland has close ties with Hong Kong. The implementation of the so-called“One Country, Two Systems”policy and enforcement of the Basic Law in HKSAR have laid a solid foundation for the prosperity in the region. To date, with the forming of a specific pattern of one country, two systems, three legal systems and four jurisdictions, more and more conflict of laws are unavoidable due differences in the legal traditions, social systems and legal systems between Mainland and Hong Kong. Since the signing and implementation of CEPA, economic and trade relations have been enhanced and interregional businesses extremely active, resulting in the increase of civil and commercial disputes. Therefore, reciprocal recognition and enforcement are an important constituent part of the judicial aids between Mainland and HKSAR and one of the most concerned issues in the legal circles in the two regions. (The judgments referred to in this paper refers to court civil and commercial judgments only, not including criminal judgments and administrative judgments). In July 2006, following the principle of equality in negation, the Supreme People’s Court and the Hong Kong Special Administrative Region reached the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements between Parties Concerned (the Arrangement). In April 2008, the Mainland Judgments (Reciprocal Enforcement) Ordinance (Bill) was passed by the Legislative Council of HKSAR, marking the progress formal cooperation between the Supreme People’s Court in the Mainland and the Department of Justice in Hong Kong permitting Mainland judgments to be enforced summarily in Hong Kong and vice versa. In July of the same year, a judicial interpretation giving effect to the Arrangement was promulgated in the Mainland. In Hong Kong, in Gazette dated July 4, 2008, the Mainland Judgments (Reciprocal Enforcement) Ordinance was announced to be effective on August 1, 2008 by the Secretary for Justice. Hence, a new mechanism to facilitate reciprocal recognition and summary enforcement of Mainland judgments in civil or commercial matters in Hong Kong and vice versa. This paper is the result of research carried out under such background.This paper is divided into four chapters exclusive of the Introduction and Conclusion.Chapter I A brief introduction to the recognition and enforcement of court judgments in the Mainland and Hong Kong. The reciprocal recognition and enforcement in both jurisdictions before the return of Hong Kong were carried out based on and within the scope of international judicial aids pursuant to the principle of reciprocity. Despite the return of Hong Kong, no relevant agreement had been reached until the singing of the Arrangement in 2006 upon negotiation. In this chapter, the author analyzes the obstacles in the signing of a relevant agreement or arrangement, based on which, discusses the legal sense of issues in respect of the implementation of the Arrangement.Chapter II Conditions and choice of models in respect of reciprocal recognition and enforcement of court judgments. China is a country with multiple jurisdictions. This chapter analyzes the cases and models involving interregional (interstate) recognition and enforcement of court judgments in the US and UK, discusses the conditions and models for reciprocal recognition and enforcement of court judgments in the Mainland and Hong Kong, compares the differences in the concerned issues between China and those in the US and UK, considers assumable models in respect of reciprocal recognition and enforcement of court judgments in the Mainland and Hong Kong taking into account of the implementation of“One Country, Two Systems”---signing relevant arrangements. Therefore, the signing of the Arrangement is of significance in the aspect of mutual recognition and enforcement in both jurisdictions.Chapter III In-depth analysis on the Arrangement. Due to historical, political, economic and legal reasons, relevant arrangements were not singed earlier. The signing of the Arrangement marked the progress of the former juridical aids and the beginning of formal cooperation between the courts in the Mainland and Hong Kong, which is a big step forward indeed. The Arrangement defines the scope of judgments that may be recognized and enforced in the other jurisdiction. In a nutshell, the Arrangement only covers money judgments on contractual disputes relating to civil or commercial matters whereby the parties concerned have made a prior express agreement to submit to the exclusive jurisdiction of the courts of either the Mainland or Hong Kong. This chapter analyzes the contents of the Arrangement and points out the deficiencies, discusses the two issues to be maintained in the implementation: reservation of public order and protection of the weak, and makes suggestions in the improvement of the Arrangement.Chapter IV On issues to further facilitate reciprocal recognition and enforcement of court judgments in both the Mainland and Hong Kong based on the Arrangement. As the Mainland Judgments (Reciprocal Enforcement) Ordinance has taken effect and the Supreme People’s Court has promulgated relevant juridical interpretation, the Arrangement is now effective in both the Mainland and Hong Kong, meaning the formal establishment of a mechanism to facilitate reciprocal recognition and enforcement of court judgments in civil or commercial matters in both jurisdictions. For the purpose of effective and efficient implementation of the Arrangement, the Brussels Convention may be used as reference in issues in connection with the reciprocal recognition and enforcement in both the Mainland and Hong Kong. Besides, the cooperation between the juridical authorities between the two jurisdiction should be enhanced as well.The Conclusion summarizes the whole paper and puts forward that principles of juridical cooperation concerning recognition and enforcement of court judgments in different jurisdictions be determined and included in the Constitution in order to promote interregional juridical cooperation, enhance the juridical cooperation reciprocal recognition and enforcement of court judgments in the Mainland and Hong Kong and lay a solid constitutional foundation for the establishment of a new regime of reciprocal recognition and enforcement of interregional court decisions in the future. It is also pointed out that the signing of the Arrangement is an interim doctrine in transition to a nationwide juridical aids agreement applicable to all the four jurisdictions of the country under the guidelines of the Constitution when conditions permitted to better solve problems arising from the implementation of the reciprocal recognition and enforcement of court judgments in the Mainland and Hong Kong.The innovation of this Paper.First, This paper base on the different jurisdictions of the Mainland and Hong Kong, to clarify the regional for reciprocal recognition and enforcement of court judgments in the Mainland and Hong Kong, having a pertinency.Second, this paper combine with the practice of the Arrangement and protection of the weak, on issues to deepen and improve the reciprocal recognition and enforcement in both the Mainland and Hong Kong based on the Arrangement , having theory and practical value.