Recognition of Chinese judgments in Australia: emerging trends and key cases 于中国所作判决在澳大利亚被承认的趋势
A plaintiff who obtains judgment from a Chinese court may wish to enforce the judgment in Australia. In Australia, the rules relating to the recognition of foreign judgments are somewhat complex, as the rules are contained in a mixture of statutory regimes, treaties and common law principles.
在澳大利亚，就承认于外国所作判决的相关规则较为复杂，原因是该等规则混合了不同的法规制度、条约及普通法原则。
The statutory mechanism for recognising foreign judgments is principally set out in the Foreign Judgments Act 1991 (Cth) (Act). The Act provides a clear and relatively straightforward mechanism for monetary judgments from a list of foreign jurisdictions (including courts from Japan, Korea and Singapore) to be registered and enforced in Australia.
承认外国判决的法定机制主要由《1991年外国判决法》（联邦）（简称法案）规定。法案就一系列于外国司法管辖区（包括日本、韩国及新加坡的法院）所作的将在澳大利亚注册并执行的金钱给付类判决提供了清晰且相对明确的机制。
However, Chinese courts are not on the list of foreign jurisdictions that are recognised under the Act. This means the only way to enforce Chinese judgments in Australia is by an application under common law. Recognition and enforcement under the common law is less straightforward and less certain than under the Act, because there are a number of additional matters that must be proved, which the court in Australia will assess on a case-by-case basis.
但是，中国法院不在法案承认的外国司法管辖区。这意味着目前能够在澳大利亚执行中国判决的唯一途径为根据普通法提出申请。与法案相比，根据普通法对判决予以承认并执行较不直接及明确，原因是澳大利亚法庭需就某些额外事项进行逐一评估。
Despite the significant economic ties between Australia and China, surprisingly there have been very few reported cases of plaintiffs applying to have Chinese judgments recognised in Australia. Only recently have such cases started to emerge.
尽管澳大利亚与中国之间有紧密的经济联系，令人惊讶的是鲜少有原告申请在澳大利亚承认中国判决的案例。直到近期该等案例才逐渐出现。
From the few reported cases to date, there appears to be a positive trend towards the courts in Australia recognising Chinese judgments. This helps provide plaintiffs with some additional certainty about the prospects of success in registering and enforcing Chinese judgments in Australia.
从迄今为止被报告的少量案例来看，目前似乎出现了澳大利亚承认中国判决的积极趋势。这有助于就在澳大利亚注册并执行于中国所作的判决提供原告一些额外的确定性。
The common law regime
普通法制度
Under the common law, a plaintiff seeking to enforce a Chinese judgment in Australia must first satisfy the Australian court that:
普通法规定，有意在澳大利亚执行中国判决的原告需向澳大利亚法庭证明：
- the Chinese court exercised proper jurisdiction when entering judgment in China;
中国法庭在中国作出判决时妥善地行使了司法管辖权； - the judgment is final (with no right of appeal);
判决为最终判决（无权上诉）； - the parties to the Chinese judgment are identical to the parties in the local enforcement proceedings; and
中国判决下当事方与本地法律执行程序中的当事方相同；及 - the judgment is for a fixed debt.
判决针对一固定金额的债务。
However, even if the plaintiff is able to demonstrate the above, the court can still refuse to recognise the judgment on a number of grounds, including:
但是，即使原告可证明上述事项，法院仍可基于如下理由拒绝承认判决：
- where the court believes that granting enforcement of the foreign judgment would be contrary to Australian public policy;
法院认为准予外国判决将违反澳大利亚公共政策； - where the judgment was obtained by improper means, such as duress or undue influence;
判决通过不正当方式取得，例如通过胁迫或不当影响取得； - where the judgment was obtained by fraud;
判决通过欺诈取得； - where the judgment is in relation to monies owed under a penal law or revenue law; and
判决与刑法或税收法下规定的所欠款项有关；及 - where the enforcement of the judgment would amount to a denial of natural justice.
对判决的执行将违背自然公正法则。
Whilst it is not a straightforward task to enforce a Chinese judgment in Australia, recent trends in the case law indicate that the courts in Australia are likely to be willing to enforce Chinese judgment debts, so long as the judgment was regularly obtained and there is sufficient evidence of the necessary elements.
尽管在澳大利亚执行中国判决并非易事，但近年来的判例趋势显示，只要该判决系依法取得且相关要素具备充分证据支持，澳大利亚法院通常会愿意予以承认和执行。
Examples of successful cases
成功案例示例
Some examples of successful cases are below.
以下是一些成功的案例。
The first reported case that considered whether a Chinese judgment could be enforced in Australia was the 2017 case of Liu v Ma[1] in the Supreme Court of Victoria. In that case, the plaintiff was successful on its application for recognition and enforcement of its Chinese judgment. However, in that case there was no opposition from the defendant, so there were no factual issues in dispute.
在澳大利亚执行中国判决的首例被报告案例为2017年由维多利亚州最高法院的的Liu v Ma一案。在该案中，原告成功申请承认并执行其中国判决。但是，该案中被告没有提出任何异议，因此就事实问题没有出现争议。
Subsequently in 2019, the Supreme Court of Victoria considered the case of Suzhou Haishun Investment Management Co Ltd v Zhao and Ors.[2] The defendant opposed the application on a number of grounds, including that the Chinese judgment was obtained under duress and that the defendant was denied natural judgment. These arguments were rejected for lack of evidence. Interestingly the defendant also argued that 'the courts of the People's Republic of China are of their nature corrupt and the rule of law does not apply to a Court of the People's Republic of China'. The Supreme Court of Victoria also rejected this argument for lack of supporting evidence, and ultimately agreed to recognise the Chinese judgment.
其后在2019年，维多利亚州最高法院审理了Suzhou Haishun Investment Management Co Ltd v Zhao and Ors一案。该案被告基于多个理由对申请提出反对，包括中国判决通过胁迫取得且被告被剥夺了自然公正判决。该等论点因缺乏证据被驳回。有趣的是，被告同时辩称"中华人名共和国法庭本质上是腐败的且法治不适用于中华人民共和国。"维多利亚州最高法院也因缺乏证据驳回了该论点，最终裁定承认该中国判决。
In 2020, the Supreme Court of New South Wales recognised and allowed enforcement of a Chinese judgment in the case of Bao v Qu; Tian (No 2).[3] In that case, the defendant attempted to argue that the amount of the Chinese judgment was wrong. The Supreme Court of New South Wales rejected the defendant's argument and refused to allow the defendant to effectively re-open the final judgment obtained in China. 2020
年，新南威尔士州最高法院在Bao v Qu; Tian (No 2)一案中承认并允许执行一在中国所作的判决。在该案中，被告试图辩称中国判决中的金额有误。新南威尔士州最高法院驳回了此论点，并拒绝被告重启在中国取得的最终判决。
Similarly, in Tianjin Yingtong Materials Co Ltd v Young,[4]the defendant attempted to argue that there was fraudulent evidence presented in the Chinese court proceeding, and that the Chinese judgment was entered "based on fake agreements". The Supreme Court of New South Wales rejected this argument on the basis that the fraud allegations could have been raised in the Chinese court proceeding, noting: "any evidence that was reasonably available or discoverable at the time of the hearing in the foreign court cannot be used to impugn the foreign judgment". There was no suggestion that any new evidence of fraud had been uncovered after the Chinese judgment was obtained. The Chinese judgment was therefore recognised in Australia.
同样地，在 Tianjin Yingtong Materials Co Ltd v Young 一案中，被告试图辩称中国法院审理过程中存在伪造证据，且该中国判决系"基于虚假协议"作出。新南威尔士州最高法院驳回了该主张，理由是该等欺诈指控本可在中国法院程序中提出。法院指出："在外国法院审理时已合理可得或可被发现的任何证据，均不得用于质疑该外国判决。"此外，并无证据表明在中国判决作出后发现了任何新的欺诈证据。因此，该中国判决被澳大利亚法院予以承认。
In addition to Chinese court judgments, a Chinese 民事调解书 (civil mediation judgment) may also be enforceable in Australia. The case of Bank of China Limited v Chen[5] concerned the enforcement of a civil mediation judgment in Australia. The defendant sought to argue that the civil mediation judgment could not be enforced in Australia because it was not a judgment by court determination. The defendant's argument was unsuccessful. The Supreme Court of NSW found that the civil mediation judgment was a binding and final under Chinese law and enforceable in the same way as a judgment.
除中国法院判决外，中国的民事调解书亦可能在澳大利亚被执行。在 Bank of China Limited v Chen 一案中，争议涉及在澳大利亚执行一份中国民事调解书的可行性。被告主张该民事调解书不应在澳大利亚获得执行，理由是其并非由法院裁判作出的判决。该主张未获法院采纳。新南威尔士州最高法院认定，该民事调解书在中国法律下具有终局性与法律约束力，并可与判决同等方式在澳大利亚获得承认与执行。
Further, in the recent case of Fu v Pang,[6] the Supreme Court of Victoria permitted "double part interest" (加倍部分债务利息) on a Chinese judgment debt under Chinese law to be recognised in Australia. Whilst the defendant argued that the double part interest constituted a penalty that is not enforceable under Australian law, the Supreme Court of Victoria rejected this argument. This case provides greater certainty about the ability to recover interest on a Chinese judgment.
此外，在近期的 Fu v Pang 一案中，维多利亚州最高法院允许依据中国法律，对中国判决债务中所载的"加倍部分债务利息"在澳大利亚予以承认。被告主张该加倍利息属于惩罚性性质，因此不应在澳大利亚执行。维多利亚州最高法院未采纳该主张。该案进一步提升了就中国判决在澳大利亚主张追讨利息的确定性。
Examples of unsuccessful cases
未成功的案例示例
On the other hand, there are also cases where a Chinese judgment has not been recognised in Australia. In the case of Xu v Wang,[7] the plaintiff was unsuccessful in obtaining orders for recognition and enforcement of a Chinese judgment. The Supreme Court of Victoria found that the defendant had been denied procedural justice in China, because the plaintiff obtained the Chinese judgment in secret and without properly serving the defendant. Further, the plaintiff admitted that he had not disclosed the existence of potentially relevant documents to the court in China prior to obtaining judgment. Consequently, the Chinese judgment was not permitted to be enforced in Australia.
另一方面，也存在中国判决未被澳大利亚法院承认的情况。在Xu v Wang一案中，原告未能成功取得认可并执行中国判决的法庭令。维多利亚州最高法院裁定被告在中国未能获得程序正义，原因是中国的判决由原告秘密取得且未能被妥当地送达至被告。此外，原告承认其于取得判决前尚未披露向中国法院披露潜在相关文件的存在。因此，该中国判决不被允准于澳大利亚执行。
In the case of Zhou v Jing,[8] the plaintiff commenced a court proceeding in China and served the defendant on her hukou (户口) registered address. However, the defendant no longer lived there and already resided in Australia by that time, so the defendant did not actually receive the Chinese court documents. The plaintiff then obtained judgment in China and sought to enforce it in Australia. Even though the Chinese law permitted service on the hukou address, the court in Australia refused to enforce the judgment, as the defendant did not in fact have the opportunity to defend the claim in China.
在 Zhou v Jing 一案中，原告在中国提起诉讼，并将诉讼文书送达至被告的户籍登记地址。然而，被告当时已不再居住于该地址，且已定居澳大利亚，因此实际上并未收到中国法院的诉讼文件。随后，原告在中国取得判决，并申请在澳大利亚执行该判决。尽管中国法律允许向户籍地址送达，但澳大利亚法院认为，被告在中国并未实际获得答辩的机会，因此拒绝执行该判决。
Conclusions
总结
This trend in Australian case law increasingly suggests that courts in Australia are likely to recognise and enforce Chinese judgments under the common law, so long as the Chinese judgment was obtained by fair and proper means.
澳大利亚判例法的趋势日益表明，澳大利亚法庭有可能根据普通法承认及执行于中国所作的判决，前提是中国判决通过公平及妥当的方式取得。
Even so, applications to recognise and enforce Chinese judgments remain complex given the factual matters that need to be proved by the plaintiff and the wide range of potential grounds for opposition by the defendant.
即便如此，鉴于原告需证明数个事实问题且被告可提出反对的理由较为宽泛，承认及执行中国判决的申请仍然复杂。
Hall & Wilcox's China Practice is specialised in dealing with litigation involving Chinese parties, and is one of the few full service law firms in Australia with a Chinese speaking litigation team.
Hall & Wilcox中国业务部专长于解决涉及中国当事方的诉讼事宜，且为澳大利亚少数几家拥有讲中文的诉讼团队的综合性律师事务所之一。
For any queries in relation to this article, please contact Eugene Chen or Sining Wang. 若您对本文有任何疑问，请联系Eugene Chen或Sining Wang.
[1] [2017] VSC 810; 55 VR 104
[2] [2019] VSC 110
[3] [2020] NSWSC 588
[4] [2022] NSWSC 943
[5] [2022] NSWSC 749
[6] [2025] VSC 597
[7] [2019] VSC 269
[8] [2023] NSWSC 214
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