Chinanews.com, January 22nd. On the 22nd, the Deputy Director of the Research Office of the Supreme People’s Court, Si Yanli, introduced the "Report on the Practice of Civil and Commercial Judicial Assistance in the Mainland and Hong Kong Special Administrative Region" (hereinafter referred to as the "Civil and Commercial Judicial Assistance Practice" at a press conference). Report") relevant situation.
1. Main content
Since the return of Hong Kong to the motherland, the Supreme People’s Court and relevant parties of the Hong Kong Special Administrative Region have fully implemented the "One Country, Two Systems" policy and the Hong Kong Basic Law, starting from scratch, from point to point, respecting each other, seeking common ground while reserving differences, and actively exploring a pragmatic and innovative interregional justice The road of assistance has initially established an interregional judicial assistance system with Chinese characteristics.
(1) A comprehensive review of the establishment of the interregional judicial assistance system with Chinese characteristics
The negotiation and signing of 8 judicial assistance arrangements is divided into three stages: the first stage is the initial development period, from the return of Hong Kong to the motherland to 2006, successfully signed 3 arrangements; the second stage is the exploratory accumulation period, from 2006 Until 2016; the third stage is a period of rapid development. Since 2016, 5 arrangements have been successfully signed.
These 8 arrangements can be divided into the following three categories:
Based on the protection of litigation rights, through the signing of the "Service Arrangement" and the "Evidence Collection Arrangement", the trial procedures of the two places are connected to each other, which greatly reduces the procedural obstacles in cross-border civil and commercial cases, and effectively solves the difficulties in service and evidence collection. The timely and fair resolution of disputes and the protection of the rights and interests of the parties provide a strong guarantee.
Focusing on protecting the rights and interests of entities, through signing the Agreement Governing the Mutual Recognition of Civil and Commercial Judgments, the Marriage and Family Judgments Mutual Recognition Arrangement, and the Civil and Commercial Judgments Mutual Recognition Arrangement, the free circulation of civil and commercial judgments between the two places has been realized and the parties concerned have been relieved. Tired of repeated prosecution.
Among them, the "Mutual Recognition Arrangement for Marriage and Family Judgments" is hailed as a pioneering initiative in the field of judicial assistance in the two places that focuses on public opinion, is closest to people's livelihood, and is most in line with the people; the "Mutual Recognition of Civil and Commercial Judgments Arrangement" marks the two places' civil and commercial judicial assistance The goal of comprehensive coverage is basically achieved.
To ensure the diversified settlement of disputes, through the signing of the Arbitration Arbitration Mutual Enforcement Arrangement, the Arbitration Preservation Arrangement, and the Supplementary Arrangement, we support arbitration to play an important role in resolving cross-border disputes, and promote the establishment of a one-stop platform for consultation, joint contribution and sharing. The multivariate dispute resolution mechanism has provided new support and injected new momentum.
Among them, the "Supplementary Arrangement" marks a new stage in which civil and commercial judicial assistance in the two places has entered a new stage of perfection and optimization from the establishment of regulations.
(2) A comprehensive introduction to the improvement of the judicial assistance working mechanism of the people's courts
The Supreme People's Court has ensured the smooth implementation of judicial assistance arrangements by continuously improving system guarantees, improving working mechanisms, and strengthening scientific and technological support.
Take the system as a guarantee.
The Supreme People's Court fully implements the content of judicial assistance arrangements by issuing multiple judicial interpretations, and has issued multiple regulatory documents as an important supplement to judicial assistance arrangements, providing comprehensive guarantees for the implementation of detailed judicial assistance arrangements.
Relying on mechanism.
The Supreme People’s Court established a working mechanism of “unified leadership, centralized management, hierarchical responsibility, coordination and cooperation” in courts across the country through the establishment of a steering group for work involving Hong Kong, Macau and Taiwan, and regular work meetings and professional training to ensure that judicial assistance work is standardized and efficient.
Supported by technology.
The Supreme People's Court has promoted the deep integration of technology and justice in the field of judicial assistance through the establishment of a national interregional judicial assistance management platform for courts in the country, and provided convenient and efficient judicial protection for people in both places.
(3) Comprehensive analysis of the implementation of inter-regional judicial assistance arrangements
Among the eight judicial assistance arrangements, with the exception of the "Arrangements for Mutual Recognition of Marriage and Family Judgments" and "Arrangements for Mutual Recognition of Civil and Commercial Judgments" that require Hong Kong local legislation and other relevant procedures before the effective date is announced by both parties, the "Service Arrangements" and "Evidence Collection Arrangements" The six arrangements, including the Arrangement, the Mutual Recognition of Civil and Commercial Judgments under Agreements, the Arbitration Arbitration Mutual Enforcement Arrangement, the Arbitration Preservation Arrangement, and the Supplementary Arrangement, have all come into effect and have been implemented in good condition.
The first is to focus on improving the quality and effectiveness of assisting in the delivery of judicial documents, so as to speed up and increase the effectiveness of trials in mutual cases.
According to the "Service Arrangement", the number of cases of mutual entrusted service between the two places has increased from 359 in 1999 to 2,382 in 2020, an increase of more than five times in 20 years, and the total number has reached more than 29,000.
The courts of both places provide assistance based on the principle of timeliness and efficiency. However, due to differences in the legal systems of the two places and other reasons, the power of assistance delivery still needs to be improved.
Based on this, the two places have now started to negotiate on the amendment and improvement of the "Service Arrangement".
The second is to accumulate practical experience in mutual recognition and enforcement of judgments to lay a solid foundation for responding to the substantial increase in cases.
Since the implementation of the Arrangement for Mutual Recognition of Civil and Commercial Judgments under Agreement Governance in 2008, due to the limited scope of application, the number of cases is relatively small. According to preliminary statistics, the mainland people’s courts have accepted 28 such cases, but the recognition and enforcement rate is relatively high. Accounted for 75%.
The trial experience accumulated in this regard will surely provide an important reference for a large number of cases after the implementation of the Arrangement for Mutual Recognition of Marriage and Family Judgments and the Arrangement for Mutual Recognition of Civil and Commercial Judgments.
The third is to continue to strengthen judicial support and supervision of arbitration, and insist on "putting the non-litigation dispute resolution mechanism ahead."
In the past five years, the mainland people’s courts have handled 57 cases in accordance with the Arrangement for Mutual Enforcement of Arbitral Awards, and there are few cases of rejection or non-enforcement of applications, which fully demonstrates judicial support for arbitration.
The Arbitration Preservation Arrangement took effect from October 1, 2019 to October 31, 2020. The People's Courts of the Mainland have processed 32 applications for assistance in arbitration preservation, with a total value of 11.3 billion yuan.
Among them, there were 29 property preservation cases, 2 evidence preservation cases, and 1 behavior preservation case. 21 cases have been closed, 20 of which have been approved by the court, and the implementation is in good condition.
In summary, the "Report on the Practice of Judicial Assistance in Civil and Commercial Matters" is a comprehensive view of the people's courts on Hong Kong-related judicial assistance, which facilitates the timely understanding and effective application of the people in both places; the "Report on the Practice of Judicial Assistance in Civil and Commercial Matters" is a transcript of the people's courts in implementing the Hong Kong Basic Law The handling of nearly 30,000 judicial assistance cases has effectively improved people’s livelihoods and welfare; the "Civil and Commercial Judicial Assistance Practice Report" is a declaration by the people’s courts to continue to promote the successful practice of "One Country, Two Systems", and to expand and deepen in a higher level and broader fields. The judicial assistance of the two places has strengthened confidence.
2. Main features
One is the most challenging exploration of judicial assistance.
The two places belong to different legal systems, and there are big differences in legal systems, judicial concepts, legislative techniques, and language styles.
It is extremely difficult to carry out judicial assistance between the two places.
However, legal professionals in the two places uphold an open mind, do not seek ease, and do not seek refuge. From procedural assistance to substantial mutual trust, to mutual provision of security assistance, they have made breakthroughs to provide judicial assistance within "one country." New ideas and new plans have also provided a useful reference for my country to carry out international judicial assistance and strengthen the construction of a foreign-related legal system.
The second is the most direct connection between rules and mechanisms.
The construction of the Guangdong-Hong Kong-Macao Greater Bay Area is a new attempt to promote the formation of a new pattern of comprehensive opening up in the new era, and it is also a new practice to promote the development of "one country, two systems".
The Guangdong-Hong Kong-Macao Greater Bay Area has the uniqueness of "one country, two systems and three jurisdictions". Mutual disputes are inevitable, legal conflicts exist objectively, and there is an urgent need to establish a connection between rules.
Among them, carrying out judicial assistance is the most direct and convenient way to promote the connection of legal rules and mechanisms.
The third is closer judicial ties and cooperation.
The two places adhere to the foundation of "one country" and make good use of the benefits of "two systems" to establish closer mutual assistance within "one country."
In terms of assistance in arbitration preservation, mutual recognition of judgments in intellectual property cases, mutual recognition of monetary judgments, etc., compared with international conventions and the assistance provided by the two places to other countries and regions, there have been great breakthroughs, and the field of cooperation has been expanded and cooperation The mechanism has been improved and the level of cooperation has been continuously improved.