Source: Supreme People's Court
Transferred from: Hebei High Court
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On 15 February, arrangements for the mutual recognition and enforcement of judgments in civil cases involving marriage and family by the courts of the Mainland and the Hong Kong Special Administrative Region came into effect simultaneously. The Arrangement is hailed as the most focused, closest to the people's livelihood and the most popular initiative in the field of judicial assistance between the two places, and is a major measure to implement and enrich the "one country, two systems" policy in the form of legal documents, which is of great significance to protecting the interests of cross-border marriage parties and families and enhancing the well-being of the people of the two places.
On 20 June 2017, the Supreme People's Court and the Department of Justice of the Government of the Hong Kong Special Administrative Region signed the Arrangement on the Reciprocal Recognition and Enforcement of Judgments in Civil Cases involving Marriage and Family by the Courts of the Mainland and the Hong Kong Special Administrative Region (hereinafter referred to as the "Marriage and Family Arrangement"). On 5 May 2021, the Legislative Council of the Hong Kong Special Administrative Region passed the Mainland Marriage and Family Judgments (Mutual Recognition and Enforcement) Ordinance (hereinafter referred to as the "Ordinance"), marking the completion of the local legislative process in Hong Kong. The Arrangement came into effect today in both places by consensus between the Supreme People's Court and the Department of Justice of the Government of the Hong Kong Special Administrative Region. The Supreme People's Court has been transformed into the form of a judicial interpretation on the Arrangement for the Reciprocal Recognition and Enforcement of Judgments in Civil Cases involving Marriage and Family by the Courts of the Mainland and the Hong Kong Special Administrative Region.
In recent years, with the increasingly close ties between the mainland and Hong Kong and the frequent movement of people, there have been more and more cross-border marriages, reaching more than 20,000 per year. However, due to the lack of institutional arrangements before, the judgments rendered by the courts of one place on issues such as marital property and child support in cases involving each other in marriage and family between the two places cannot be recognized in the other place, let alone enforced, and the parties can only seek relief by re-filing lawsuits. This not only puts pressure on the parties concerned in terms of time, money and energy, but also is not conducive to protecting the legitimate rights and interests of women and children.
The mainland and Hong Kong belong to two different jurisdictions within "one country", and in the 25 years since Hong Kong's return to the motherland, the two places have signed nine judicial assistance documents in accordance with Article 95 of the Hong Kong Basic Law to build an inter-regional judicial assistance system with Chinese characteristics. The vigorous development of judicial assistance in civil and commercial matters between the two places fully proves that "one country, two systems" has strong vitality. "One country" is the root, and only when the roots are deep can it flourish; "one country" is the foundation, and only when it is solid can it flourish. Within "one country", the two legal systems should and can fully achieve long-term coexistence and integration.
In order to protect the interests of parties and families in cross-border marriages, it is necessary for the Mainland and Hong Kong to establish institutional arrangements so that judgments in marriage and family cases can be mutually recognized and enforced between the two places, so as to avoid repeated prosecutions by the parties, thereby saving time and costs and reducing the mental pressure of the parties. After the Marriage and Family Arrangement comes into effect, the vast majority of cross-border marriage and family case judgments will be mutually recognized and enforced between the two places, which will greatly reduce the burden of repeated litigation by the parties, bring more tangible benefits to the people of the two places, and lay a more solid foundation for the continuous expansion and deepening of judicial exchanges and cooperation between the two places.
The Marriage and Family Arrangement achieves closer and broader assistance within "one country", and the two places uphold open thinking and seek the greatest common denominator, including cases in which the two places are in the same marital and family affairs category and divorce by agreement are included in the scope of mutual recognition and enforcement, and the scope of recognition and enforcement is not limited to the recognition of identity relations, but also includes property judgments.
The "Marriage and Family Arrangement" has achieved a closer connection between law and judicial rules under the "two systems". Adhering to the principle of emancipating the mind and being flexible and innovative, the two places have integrated the concept of "ownership" of mainland adjudication with the concept of "assignment" ordered by Hong Kong, thus achieving a positive convergence of legal expression; upholding the judicial concept of mutual respect, replacing the expression "final judgment" in the 2006 Arrangement on mutual recognition and enforcement of judgments in civil and commercial cases under the jurisdiction of the courts of the Mainland and the Hong Kong Special Administrative Region in 2006, and respecting to the greatest extent the definition of "effective judgment" in the law of the court of origin.
The "Marriage and Family Arrangement" embodies the common belief of legal personnel of the two places to serve the well-being of the people. The Marriage and Family Arrangement stipulates the principle of reviewing the best interests of minors and requires that the courts of the two places should fully consider the best interests of minors. In the absence of a party to the Convention on the Civil Aspects of International Child Abduction (1980), the Mainland adheres to the concept of maximizing the interests of minors and allows applications to mainland courts for recognition and enforcement of custody orders for minor children made by Hong Kong courts, so as to fully protect the normal study and life of minors. With the gradual improvement of a series of laws such as the Civil Code, the Law on the Protection of Minors, and the Law on the Promotion of Family Education, the protection of minors in the two places will be more in-depth and comprehensive.
The effective implementation of the "Marriage and Family Arrangement" is only the first step, and there will be many issues in the specific implementation, and it is also necessary for the courts of the two places to strengthen their understanding of legal language, communication on the expression of judgment items, and understanding of enforcement measures, and gradually realize the efficient docking of laws and litigation rules, and it is even more necessary to further strengthen the connection between the coordination mechanism of mutual recognition of judgments between the two places, and also need to jointly conduct more in-depth discussions on the reasons for the defense and how to reflect the best interests of children, so as to serve "one country, two systems." "The growing judicial ties between the two places are a major issue.
Although the legal and judicial systems of the Mainland and Hong Kong are not the same, colleagues in the legal circles of the two places have always adhered to the principle of "one country, two systems", jointly promoted the prosperity and development of the motherland, and enhanced the well-being of the people of the two places. The unique legal systems of the Mainland and Hong Kong are also rule of law resources for mutual learning and common development between the two places. Institutional differences are not gullies, lack of experience is not an obstacle, special circumstances are not barriers, along the track of the "one country, two systems" principle and the Hong Kong Basic Law, we can work together with one heart and one mind, and move in the same direction, we will be able to continuously overcome difficulties, achieve breakthroughs, and write a new chapter in judicial assistance between the two places.
The Arrangement of the Supreme People's Court on the Reciprocal Recognition and Enforcement of Judgments in Civil Cases between the Courts of the Mainland and the Hong Kong Special Administrative Region was adopted by the 1718th meeting of the Adjudication Committee of the Supreme People's Court on 22 May 2017 and is hereby promulgated for implementation as of 15 February 2022.
Supreme People's Court
February 14, 2022
Legal Interpretation [2022] No. 4
About the courts of the Mainland and the Hong Kong Special Administrative Region
Arrangements for mutual recognition and enforcement of judgments in civil cases involving marriage and family
(The 1718th time by the Adjudication Committee of the Supreme People's Court on May 22, 2017.)
Approved by the meeting and effective as of February 15, 2022. ）
In accordance with the provisions of Article 95 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, the Supreme People's Court and the Government of the Hong Kong Special Administrative Region, after consultation, hereby make the following arrangements on the recognition and enforcement of judgments in civil cases of marriage and family.
Article 1 This Arrangement shall apply to a party applying to the courts of the Hong Kong Special Administrative Region for recognition and enforcement of effective judgments rendered by the People's Court of the Mainland in civil cases of marriage and family, or to the People's Court of the Mainland for the recognition and enforcement of effective judgments rendered by the courts of the Hong Kong Special Administrative Region in civil cases of marriage and family.
Where a party applies to the courts of the Hong Kong Special Administrative Region for recognition of a divorce certificate issued by the civil affairs department of the Mainland, or to the People's Court of the Mainland for the approval of an agreement or memorandum of agreement or memorandum of dissolution of marriage under Part v and Part V of the Marriage System Reform Ordinance (Cap. 178 of the Laws of Hong Kong), this Arrangement shall apply by reference.
Article 2: Effective judgments referred to in this Arrangement:
(1) In the Mainland, refers to second-instance judgments, first-instance judgments that are not allowed to appeal in accordance with law or have not appealed beyond the statutory time limit, and the above-mentioned judgments made in accordance with trial supervision procedures;
(b) in the Hong Kong Special Administrative Region means a judgment rendered by the Court of Final Appeal, the Court of Appeal of the High Court and the Court of First Instance and the District Court that have become legally effective, including orders that may be amended after the commencement of force under the laws of Hong Kong.
The judgments referred to in the preceding paragraph include judgments, rulings and mediation statements in the Mainland, and judgments, orders, orders, certificates of assessment of costs and certificates of fixed costs in the Hong Kong Special Administrative Region, but do not include judgments made by courts of other countries and regions recognized by the parties in accordance with their laws.
Article 3: Civil cases of marriage and family referred to in this Arrangement:
(a) in the Mainland means:
1. Cases of disputes over the division of marital property between husband and wife;
2. Divorce dispute cases;
3. Property dispute cases after divorce;
4. Cases of marital invalidity disputes;
5. Revocation of marital dispute cases;
6. Cases of marital property agreement disputes;
7. Cases of child support disputes in cohabitation relationships;
8. Dispute cases over the confirmation of paternity;
9. Custody dispute cases;
10. Maintenance dispute cases (limited to maintenance disputes between husband and wife);
11. Confirm cases of adoption disputes;
12. Custody dispute cases (limited to minor child custody disputes);
13. Visitation rights dispute cases;
14. Applicants for personal safety protection orders.
(b) in the Hong Kong Special Administrative Region means:
1. an absolute order of divorce under Part III of the Matrimonial Causes Ordinance (Cap. 179);
2. An absolute order of nullity of marriage under Part IV of the Matrimonial Litigation Ordinance (Cap. 179);
3. an order to provide alimony while the case is pending under the Matrimonial Procedure and Property Ordinance (Cap. 192);
4. Maintenance orders made pursuant to the Guardianship of Minors Ordinance (Cap. 13), the Separation and Maintenance Orders Ordinance (Cap. 16), part II and IIA of the Matrimonial Proceedings and Property Ordinance (Cap. 192);
5. Orders for the transfer and sale of property made under the Guardianship of Minors Ordinance (Cap. 13), Part II and Part IIA of the Matrimonial Proceedings and Property Ordinance (Cap. 192);
6. an order relating to property under the Status of Married Persons Ordinance (Cap. 182 of the Laws of Hong Kong);
7. an order to amend the maintenance agreement made by the parties at the time of their lifetime under the Matrimonial Procedure and Property Ordinance (Cap. 192);
8. Adoption orders made under the Adoption Ordinance (Cap. 290);
9. a declaration of parental status, status in wedlock or establishment of status in wedlock under the Matrimonial Causes Ordinance (Cap. 179) and the Parents and Children Ordinance (Cap. 429);
10. Custody orders made under the Guardianship of Minors Ordinance (Cap. 13), the Separation and Maintenance Orders Ordinance (Cap. 16) and the Matrimonial Proceedings and Property Ordinance (Cap. 192);
11. Custody orders in respect of minor children under the custody of the Hong Kong courts;
12. Injunctive harassment orders, expulsion orders, reinstatement orders or alteration or suspension of enforcement of custody orders or visitation orders for minor children under the Violence in the Family and Common-Law Relations Ordinance (Cap. 189 of the Laws of Hong Kong).
Article 4 Application for Recognition and Enforcement of Judgments Provided for in this Arrangement:
(1) Submitting in the Mainland to the intermediate people's court of the applicant's domicile, habitual residence, or the place of the respondent's domicile, habitual residence, or property;
(b) to be filed with the District Court in the Hong Kong Special Administrative Region.
The applicant shall submit an application to one of the people's courts that meets the requirements of item 1 of the preceding paragraph. Where an application is submitted to two or more people's courts with jurisdiction, the people's court that first filed the case has jurisdiction.
Article 5: Where an application is made for recognition and enforcement of a judgment provided for in paragraph 1 of Article 1 of this Arrangement, the following materials shall be submitted:
(1) The written application;
(2) A copy of the judgment stamped by the court that rendered the effective judgment;
(3) A certificate issued by the court that rendered the effective judgment, proving that the judgment is an effective judgment in a civil case of marriage and family provided for in this Arrangement;
(4) Where the judgment is a default judgment, it shall submit supporting documents that the court has lawfully summoned the parties, except where the judgment has clearly explained this or where the absent party submits an application;
(5) Notarized copies of identity documents.
Where an application is made for recognition of the divorce certificate, agreement or memorandum provided for in paragraph 2 of Article 1 of this Arrangement, the following materials shall be submitted:
(2) A notarized copy of the divorce certificate, or a notarized copy of the agreement or memorandum;
(3) Notarized copies of identity documents.
Where documents submitted to the people's courts of the Mainland do not have Chinese text, an accurate Chinese translation shall be submitted.
Article 6: The application shall indicate the following matters:
(1) The basic circumstances of the parties, including names, residences, identity documents and information, means of communication, and so forth;
(2) The matters and reasons for the request, and where the application is made for enforcement, the property status and location of the property of the respondent must also be provided;
(3) Whether the judgment has been applied for enforcement and enforcement in other courts.
Article 7: The period, procedures and methods for applying for recognition and enforcement of judgments shall be in accordance with the provisions of the law of the requested Party.
Article 8: The court shall review the request for recognition and enforcement as soon as possible, and make a ruling or order.
Article 9: Where the respondent provides evidence to prove any of the following circumstances in an application for recognition and enforcement of a judgment, the court shall not recognize and enforce it after review and verification:
(1) Pursuant to the law of the court of first instance, the respondent has not been lawfully summoned, or has not been given a reasonable opportunity to make statements or debates despite being lawfully summoned;
(2) the judgment was obtained by fraudulent means;
(3) After the requested method court accepts the relevant litigation, the requesting method court accepts the lawsuit raised in connection with the same dispute and makes a judgment;
(4) The requested court has already rendered a judgment on the same dispute, or has recognized and enforced a judgment rendered by a court of another country or region on the same dispute.
Where the People's Court of the Mainland finds that the recognition and enforcement of the judgments of the courts of the Hong Kong Special Administrative Region clearly violates the basic principles of the laws of the Mainland or the public interest, and the courts of the Hong Kong Special Administrative Region find that the recognition and enforcement of the judgments of the People's Courts of the Mainland clearly violate the basic principles or public policies of the laws of the Hong Kong Special Administrative Region, they shall not recognize and enforce them.
Where an application for recognition and enforcement of a judgment involves minor children, the best interests of the minor children shall be fully considered when reviewing and deciding whether to recognize and enforce them in accordance with the provisions of the preceding paragraph.
Article 10: When the requested method court cannot recognize and enforce all the judgment items, it may recognize and enforce some of them.
Article 11 Where a party has already lodged an appeal against a judgment rendered by a court of the Hong Kong Special Administrative Region, the Mainland People's Court may, after review and verification, suspend the procedures for recognition and enforcement. Where, upon appeal, all or part of the original judgment is upheld, the procedures for recognition and enforcement shall be resumed; where the original judgment is completely changed, the procedures for recognition and enforcement shall be terminated.
Where a judgment already rendered by a people's court in the Mainland rules for a retrial, the hong Kong Special Administrative Region court may, after review and verification, suspend the accreditation and enforcement procedures. Where, after a retrial, all or part of the original judgment is upheld, the approval and enforcement procedures are resumed; where the original judgment is completely changed, the approval and enforcement procedures are terminated.
Article 12 Under this Arrangement, a judgment rendered by a People's Court of the Mainland concerning the ownership of property by one Party shall be deemed to be an order in the Hong Kong Special Administrative Region to transfer such property to the other Party.
Article 13 Where the respondent has assets available for enforcement in both the Mainland and the Hong Kong Special Administrative Region, the applicant may apply to the courts of the two places for enforcement separately.
The total amount of property enforced by the courts of both places shall not exceed the amount determined by the judgement. In response to the requirements of the court, the courts of the two places shall provide each other with the circumstances of the court's enforcement of the judgment.
Article 14 The scope of property payments mutually recognized and enforced by the courts of the Mainland and the Hong Kong Special Administrative Region includes the property to be paid as determined by the judgment and the corresponding interest, delay in performance, and litigation costs, excluding taxes and fines.
"Litigation costs" as used in the preceding paragraph refers to the expenses paid by the Certificate of Assessment of Litigation Costs or the Certificate of Fixed Amount Of Litigation Costs in the Hong Kong Special Administrative Region.
Article 15: Where, after the requested court has made a ruling or order on an application for recognition and enforcement, and the parties are dissatisfied, they may apply for reconsideration to the people's court at the level above within 10 days of the date of service of the ruling in the Mainland, and may file an appeal in the Hong Kong Special Administrative Region in accordance with its laws.
Article 16: Where, during the trial of civil cases involving marriage and family, a party applies for recognition and enforcement of a judgment rendered by a court of another locality in respect of the same dispute, it shall be accepted. After acceptance, the relevant litigation shall be suspended, and after a ruling or order has been made on the application for recognition and enforcement, the litigation shall be terminated or resumed as appropriate.
Article 17: Where during the period of reviewing an application for recognition and enforcement of a judgment, a party raises a lawsuit over the same dispute, it shall not be accepted; where it has already been accepted, the lawsuit shall be dismissed.
Where, after the judgment has been recognized and enforced, the parties again bring a lawsuit in respect of the same dispute, it shall not be accepted.
Where the judgment is not recognized and enforced, the applicant may not apply for recognition and enforcement again, but may file a lawsuit with the requested court for the same dispute.
Article 18: Before or after accepting an application for recognition and enforcement of a judgment, the requested method may employ preservation or compulsory measures in accordance with its legal provisions.
Article 19: Where an application is made for recognition and enforcement of a judgment, fees shall be paid in accordance with the laws and regulations of the requested party on litigation fees.
Article 20 This Arrangement shall apply to judgments rendered by the courts of the Mainland and the Hong Kong Special Administrative Region on the date of entry into force of this Arrangement.
Article 21: Where there are problems or need to be amended in the course of implementation of this Arrangement, the Supreme People's Court and the Government of the Hong Kong Special Administrative Region shall resolve it through consultation.
Article 22: This Arrangement takes effect on February 15, 2022.