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THE LAW REFORM COMMISSION OF HONG KONG - page 259 / 360

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Enforcement of orders

11.13A general principle is that foreign judgements have no legal effect as they are not recognised in a court.  The parties will have to apply to a Chinese court for an order.  However, Mainland China has signed about 30 judicial assistance agreements with foreign countries.  A method to enforce a foreign court order is to send it through diplomatic channels to a lawyer agent.  The lawyer will submit it to the Supreme Court, who will transfer it to the local court where the respondent lives.  The local court will look at the order and check the procedural issues.  For example was the respondent served fairly with the proceedings, was he represented in the foreign court, or did the foreign judicial process violate social and public order and morality?  It is a public policy issue.  The court does not review substantive issues.

Comments on Chinese family mediation

Role of mediators

11.14Mediators are to follow government policy and law.  In theory mediation is only to take place with the consent of all parties.1138  Mediators are investigators and fact-finders.1139  The dispute is seen as a social phenomenon.  The mediator educates the parties in the law.  Article 5 of the Regulations includes a duty to:

“disseminate through mediation such legal information as the law, statutes, rules, regulations and policies of the state and to educate people on the observation of law and order and the respect of social morality.”

11.15The mediator can criticise or praise as one of their functions is the correction of problem producing behaviour.  Mediation was promoted by Mao’s theory of non-antagonistic contradictions1140 which saw mediation as the acceptable method of handling contradictions among the people.  Cohen recognised that mediators in China could “mobilize such strong political, economic, social and moral pressure upon one or both parties as to see little option but that of ‘voluntary’ acquiescence.”1141

Voluntary or coercive

11.16Clarke stated that:

“Chinese and Western commentators are aware of evidence that mediators often pressure or even coerce parties to accept a suggested settlement but this phenomenon is seen as aberrational and generally

1138 Article 6 of the Regulations governing the organisation of people’s mediation committees, promulgated by the State Council on 17 June 1989.

1139 Cloke, “Politics and Values in Mediation; The Chinese Experience”, reference mislaid.

1140 These occur between parties with fundamentally identical interests, i.e. the people.

1141 Cohen, “Chinese Mediation on the eve of modernisation”.  54 California Law Review 1201 (1966).

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