1 Country Report Republic of the Union of Myanmar ENFORCEMENT OF CIVIL CASE JUDGEMENT IN MYANMAR 1. Introduction 1.1 Union of Myanmar had its own legal system and judicial system during the dynasty of Myanmar Kings. At that time, Yazathat, Damathat, and Phythtone were sources of laws. Yazathat means kings orders, Damathat means treatises and Phythtone means rulings (decision of judges). Myanmar Customary Law has been exercising until now, and it is mainly based upon Damathat. 1.2 During the late 19th century, Myanmar was occupied by British Colonialist and they introduced common law system. Now we are practicing laws which are based upon common law principles, for example Civil Procedure Code, Criminal Procedure Code, Penal Code, and Evidence Act. Most of the laws are similar to other common law countries such as India laws. Contract Act, Specific Relief Act, Sale of Goods Act, Companies Act, Transfer of Property Act, and Registration Act are almost the same as Indian Acts. Therefore, Myanmar legal system is a unique system, a combination of its traditional legal system and common law system. 1.3 Under the multi-party democratic system, the economic system of Myanmar is market economy system. Myanmar is now trying to develop its economy and to reengage with the global market. Accordingly, various laws which relate to political system and economic system have been enacted during the first parliamentary sessions in order to be lined with current situation.
2 2. Constitution of Courts 2.1 Every court in Myanmar is competent to grant enforcement of a judgment, but with pecuniary limits of its jurisdiction. The court system of Myanmar consists of four levels. These are : (i) Supreme Court, (ii) High Courts of the Region / High Courts of the State (iii) District Courts and (iv) Township Courts. 2.2 Every court has the power to entertain suits upon judgments on the basis of statue of each court having pecuniary jurisdiction in original civil suits. The Supreme Court is the highest court in the land and it has original jurisdiction in certain matters such as maritime cases.region and State High Courts have unlimited pecuniary jurisdiction in original civil suits. District Courts and Township Courts have pecuniary jurisdiction of a maximum value of Kyat 5000,00,000and Kyat 100,00,000 respectively. 3. Enforcement of a civil case judgment 3.1 Enforcement of a judgment is by execution through the courts. Money judgments are executed by attachment and sale of the judgment debtor's properties. 3.2 In exceptional circumstances, money judgments can be executed by the arrest and detention in civil prison of the judgment debtor. 3.3 All questions relating to execution, discharge or satisfaction of the judgment are determined by the court executing the decree, and a separate suit for determination of these questions is expressly barred ( section 47, CPC). An executing court cannot scan or scrutinize strengths or weaknesses of the arguments, or reasons provided by the court for accepting or rejecting them. The executing court cannot review the judgment of the court of competent jurisdiction.
3 3.4 Execution of the judgment can be challenged on the grounds that it is barred by limitation or an inherent lack of jurisdiction. 3.5 A party can file an application under Order 21, Rule 29 of the Civil Procedure Code, seeking stay of execution of the judgment, if an action is pending in any court between the decree holder and judgment debtor. 3.6 A compromise judgment can be set aside on the grounds of fraud, or on the grounds that the advocate had no authority to enter into the compromise. Execution of a consent judgment is not enforceable against a respondent who was not party to the consent judgment. 3.7 The judgment holder can, with leave of the court, examine the judgment debtor on oath to disclose his assets. 3.8 In relation to judgments for specific performance, for example, for the sale of property, the court can direct the court office to draw up the sale deed and appoint a court officer to execute it. 4. Modes of Execution of Decree (Order 21 of Civil Procedure Code) 4.1 The court may enforce execution of the decree as follows: (i) by delivery of any property specially decreed; (ii) by attachment and sale or sale without attachment of any property; (iii) by arrest and detention in prison; (iv) by appointing a receiver; or (v) in such other manner as the nature of the relief granted mayrequire (Civil Procedure Code, Sec.51).
4 4.2 Any person in whose favor a decree has been passed or an order capable of execution has been made, can make application to the Court which passed the decree for enforcement of the decree or order. Execution may be effected either against the person or property or both, of the judgment debtor. The Court having jurisdiction is that situates at the place where the person resides or where the property situates. The only exception is when a Court issues a percept to another court having jurisdiction over the property to be attached. 4.3 Enforcement against person of judgment debtor is provided in Order 21 of the Civil Procedure Code and it can be categorized as; (i) Decree for the payment of money: (ii) Decree other than those for the payment of money: The Court may make an order for the arrest and detention of judgment-debtor. With regard to enforcement against property of judgment-debtor, it can be categorized as (i) attachmentof movable and immovable property, and (ii) Sale of attached property. 4.4 Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, many be executed by the detentionin the civil prison of the judgment-debtor or by the attachment and sale of his property, or by both [Order 21 Rule 30]. 4.5 Where the decree is for any specific moveable, or for any share in a specific moveable, it may be executed by the seizure, if practicable, of the moveable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in the civil prison of the judgment-debtor, or by the attachment of his property or by both [Order 21 Rule 31]. 4.6 Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed
5 to obey it, the decree may be enforced by his detention in the civil prison, or by the attachment of his property or by both [Order 21 Rules 32]. 4.7 Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the term of the decree and deliver the same to the Court. The decree-holder shall deliver to the Court a copy of the draft as the Court may have directed upon the proper stamp-paper if a stamp is required by the law; and the Judge or such officer as may be appointed in this behalf shall execute the document [Order 21 Rule 34]. 4.8 Where a decree is for the delivery of any immoveable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property [Order 21 Rule 35]. 4.9 Where a decree is for the delivery of any immoveable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of dram or other customary mode, at some convenient place, the substance of the decree in regard to the property [Order 21 Rule 36]. 5. Arrest and detention in prison 5.1 In execution of decree, judgment-debtor shall be detained, where the decree is for the payment of money, for a period of six months. He shall be released from such detention before the expiration of period on the decree against
6 him being fully satisfaction. A judgment-debtor release from detention shall not merely by reason of his release be discharge from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in civil prison (Civil Procedure Code Sec.58). 5.2 Before issuing a warrant of arrest, the Court shall issue a notice calling upon judgment-debtor to appear before the Court and show cause why he should not be committed to the civil prison. However, such notice shall not necessary if the Court is satisfied that he is likely to abscond or leave the local limits of the jurisdiction of the Court with the object or effect of delaying the execution of the decree (Civil Procedure Code, O.21, R.37). 6. Attachment 6.1 Section 60 of the Civil Procedure Code provides as follows: The following property is liable to attachment and sale in execution of a decree, namely lands, houses, or other buildings, goods, money, banknotes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, moveable or immoveable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf. 6.2 Therefore, the attachment is granted as one mode of execution of money decree or other decrees compensable by money.civil Procedure CodeO. 21 R.41-57) deals with the arrest of a judgment-debtor and the attachment of his property in execution of a decree passed against him. Order 38 lays down rules for the arrest of a defendant and the attachment of his property before judgment. The object of these rules is to secure the plaintiff against any attempt on the part of the defendant to defeat the execution of any decree that may be passed against him.
7 7. Enforcement of Foreign Judgments in Myanmar 7.1 Enforcement of a foreign judgment is an important judicial process for business activities involving those such as multinational corporations or foreign private investors as noted earlier. Such occurs when a judgment has been decided by a foreign court that must be enforced in the court of another state where there is an obligation to protect a defendant's asserts. With reference to national laws in Myanmar concerning enforcement of foreign judgment, firstly, foreign judgments must be filed and submitted to a court. However, in practice, questions regarding enforcement of their judgment, sometimes become apparent when considerations are applied regarding a court s competency to enforce a foreign judgment and whether the assets of a state-owned enterprise can be executed or not, when the foreign investor seeks investment with a state entity. 7.2 Myanmar courts will enforce the judgments which are delivered by the court of competent jurisdiction.the Civil Procedure Code of Myanmar (hereinafter Civil Procedure Code.) section 13 provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties, or between parties under whom they or any of them claim, litigating under the same title. However, foreign judgment is not accepted as conclusive and final under certain circumstances as follows: (1) when the judgment has not been pronounced by a court of competent jurisdiction, (2)when it has not been given on the merit of the case or, when it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of Myanmar in cases in which such law is applicable, (3) when the proceedings in which the judgments was obtained are opposed to natural justice,when it has been obtained by fraud and (4) when it sustains a claim founded on a breach of any law in force in Myanmar.
8 7.3 Myanmar has no agreement with other countries regarding enforcement or recognition of foreign judgment. There is also no case related to enforcement of foreign judgments in the courts of Myanmar until now. However, enforcement of foreign judgment and arbitral awards in Myanmar should conform to the minimum international standard as long as commercial litigations are greatly concerned with foreign investors and local investors. In pursuant of this view,problems arising from commercial activities should be solved by harmonizing laws and standardizing resolutions in the time of endeavoring to enhance the country's economy. 7.4 Although Myanmar has no agreement and is not a party to the multilateral convention on enforcement of judgment, Myanmar will accept competent jurisdiction to hear cases in accordance with Section 13 and 14 of Civil Procedure Code for enforcement of foreign judgments made by the court of another state when the defendant or relevant assets are actually located within its jurisdiction. Courts in Myanmar will focus foreign judgment based on the criteria provided by the Civil Procedure Code section 14. 8. Conclusion In Myanmar, enforcementin civil case judgment has been based on thecivil Procedure Code, 1909 which is very old but it is still useful in our system. I do hope this forum will provide us an opportunity to learn and study a more effective procedure of enforcement in civil case judgment from other countries. It will be a great help if we can consider some of the basic method that can be applied effectively in our judicial system.