IN MANY JURISDICTIONS, the laws governing civil procedure recognize that in some circumstances a plaintiff may apply for judgment without the need to go through a full trial. This process is usually available where (1) the defendant does not file a defence; or (2) there is no dispute – or a court determines that there should be no dispute – about the facts or the evidence that the plaintiff puts forward to support the facts.
This process is called “summary judgment” in common law jurisdictions. As it applies to the second scenario outlined above, the process avoids the need for a lengthy trial to determine the facts through witness statements or discovery (for a discussion about discovery and how it operates in common law jurisdictions, see China Business Law Journal volume 9 issue 6: Discovery). Such a process also avoids the delays and expenses that are associated with a full trial. This article examines the summary judgment process and compares the position in two common law jurisdictions – England and Hong Kong – with the position in mainland China.
COMMON LAW JURISDICTIONS
In England, the law governing applications for summary judgment is contained in Part 24 of the Civil Procedure Rules, which provides as follows:
Scope of this Part
24.1 This Part sets out a procedure by which the court may decide a claim or a particular issue without a trial.
Grounds for summary judgment
24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.
As noted above, there are two grounds on which a court may give summary judgment: (1) there is “no real prospect” of the claim succeeding or being successfully defended; and (2) there is “no other compelling reason why the case or issue should be disposed of at a trial”.
Under rule 24.3, summary judgment against a defendant is available in any type of proceeding subject to certain limited exceptions. These exceptions include proceedings for possession of residential premises against a mortgagor and proceedings for an admiralty claim in rem (this is a claim against a ship, cargo and/or freight).
A common example of an application for summary judgment is where a borrower or debtor has defaulted in the repayment of a loan or a debt and there is no dispute about whether the default has occurred and how much money is owing.
Although a successful application for summary judgment will mean that a trial will not proceed and that evidence will therefore not be considered during the trial, Rule 24.5 provides that the parties may file written evidence with the court for the purpose of the summary judgment hearing itself.
In Hong Kong, Order 14 of the High Court Civil Procedure Rules provides as follows:
1. Application by plaintiff for summary judgment (O. 14, r. 1)
(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.
(2) Subject to paragraph (3) this rule applies to every action begun by writ other than—
(a) an action which includes a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment or seduction,
(b) an action which includes a claim by the plaintiff based on an allegation of fraud, or
(c) an Admiralty action in rem.
As noted above, the relevant ground for summary judgment in Hong Kong is that “the defendant has no defence to a claim”. Like the Civil Procedure Rules in England, Order 14 recognizes exceptions where a summary judgment is not available. There are, however, two exceptions that are different from the exceptions in England (see (2)(a) and (b) above).
The law in mainland China recognizes at least three situations in which a full trial can be avoided: (1) the summary procedure under Articles 157 – 163 of the Civil Procedure Law; (2) the procedure for hastening debt recovery under Articles 214 – 217 of the Civil Procedure Law; and (3) notarization with compulsory enforcement effect under Article 37 of the Notarization Law.
We consider each of these situations in turn.
1. Summary procedure. Under Article 157 of the Civil Procedure Law, the summary procedure applies where a basic people’s court “tries simple civil cases with clear facts, unambiguous rights and obligations and minor disputes”. The summary procedure may also be applied if the parties agree. In essence, the summary procedure involves a simplified trial process, where the plaintiff may initiate the proceedings verbally, the case is tried by a single judge and the trial is completed within three months after the case is commenced.
2. Procedure for hastening debt recovery. The procedure for hastening debt recovery enables a creditor to apply to a basic people’s court for a payment order in certain circumstances where a creditor requests a debtor to repay money or negotiable securities. Under the procedure, the people’s court must examine the facts and evidence provided by the creditor. If the creditor-debtor relationship is clear and legal, the court must issue a payment order to the debtor within 15 days after accepting the application. The debtor then has 15 days in which to repay the debt or submit a written objection, failing which the creditor may apply for enforcement of the payment order.
3. Notarisation with compulsory enforcement effect. Before examining the notarization with compulsory enforcement effect, it is useful to understand the nature and effect of notarization. Under PRC law, notarization has three main purposes. The first purpose is to provide evidentiary proof; in other words, notarization verifies facts and serves as evidence of facts. This is provided in Article 69 of the Civil Procedure Law (see Citation 1).
引文一 Citation 1
Article 69, Civil Procedure Law
A people’s court shall regard legal facts and documents as notarised and certified under the legal procedures as a basis for determining facts, except where there is evidence to the contrary which suffices to overturn the notarial certification.
The second purpose is to validate facts and documents; namely, to give legal validity to certain facts and documents. For example, in order to inherit property in China, it may be necessary to obtain a notarial deed to prove that the heir enjoys the right of inheritance.
The third purpose is to certify liability and to achieve compulsory enforcement effect. This is particularly relevant in the case of credit documents. Please see Article 37 of the Notarization Law in Citation 2.
引文二 Citation 2
Article 37, Notarization Law
In respect of a notarised credit document that deals with payment and states clearly that the debtor accepts a commitment to compulsory enforcement, if the debtor fails to perform or its performance is not appropriate, the creditor may apply to a people’s court with jurisdiction in accordance with the law for enforcement.
In case a definite error is found in the credit document as mentioned in the preceding paragraph, the people’s court shall issue a ruling refusing to enforce and shall serve the ruling on both parties concerned and the notarial organisation.
The effect of notarizing a credit document with compulsory enforcement effect is that if the debtor does not repay the debt, the creditor may directly apply to a people’s court to enforce the debt without the need to go through a trial or arbitral process. In other words, the court accepts the amount owing on the basis of the notarised credit document and issues an enforcement order. There is no need for the court to issue a judgment first.
On 1 October 2018, measures issued by the Supreme People’s Court on the enforcement of notarized credit documents came into effect: Measures of the Supreme People’s Court on Certain Questions Concerning the Enforcement of Notarized Credit Documents. The Measures clarify certain issues concerning notarization with compulsory enforcement effect. For example, a defendant can apply for an enforcement application to be rejected if the defendant was not present or did not authorize an agent to be present when the document was notarized. In addition, when a people’s court reviews a case in which enforcement was rejected, it must hear evidence if the case is complex and the issues in dispute are large. Further, an enforcement order must be refused if the enforcement of the notarized credit document would violate public order and morals.
A media statement issued by the Supreme People’s Court in respect of the Measures noted that the use of notarised credit documents had increased significantly in recent years and that the Measures were issued after a comprehensive consultation process involving the legislative bodies and judicial departments.
A concept similar to notarisation with compulsory enforcement effect is recognised in civil law jurisdictions, such as Germany, and also in Japan.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com.