Legal perspective of Great Wall death

Since the party whose action resulted in the death of another is a Canadian citizen, can she leave China at will? The answer is no. According to the Law of the People's Republic of China on the Control of the Entry and Exit of Foreigners, a foreigner is forbidden to leave China if he or she is involved in an unresolved civil case. The party bringing the civil case may apply for an order from the court with jurisdiction to prevent the other party leaving the country provided doing so would substantially affect the claimant's interests and the enforcement of court decisions.

Finally, some wonder whether the judgment of a Chinese court can be recognized and enforced by a Canadian court since China and Canada have not signed a bilateral treaty on judicial assistance on civil and commercial cases. According to Canadian law, only if the judgment is obtained by fraud or by unjust procedure, or based on penal, revenue or other public law of the foreign jurisdiction, will a foreign judgment not be recognized.

Assuming the claimants in the current case win a favorable judgment from a Chinese court, the following three conditions can be easily met: First, the court governing the Great Wall where the accident happened enjoys jurisdiction according to basic rules of conflict in private international law. Second, a decision is final after two sessions in China: first trial and appeal. And the procedure could be quite fast if the case is not complex. Third, the judgment of a tort case usually involves monetary compensation. Therefore, the three criteria are not legal obstacles for recognition and enforcement. Noticeably, the overwhelming trend in Canada is towards greater ease of enforcement of foreign judgments.

China is building a society governed by rule of law. Perhaps foreigners received favorable treatment in previous years, but now the trend is towards fair treatment with little regard for nationality. So if anything unfortunate happens, a foreigner needs to resort to the law.

The author is a fellow with the research office of Shunyi district people's court in Beijing.