Study On The Hague Convention On International Access To Justice

The 1980 Hague Convention on International Access to Justice,hereinafter referred to as “the Hague Convention on International Access to Justice” or “the Convention”,is the first international convention in the world to regulate matters relating to international judicial remedies.It sets international standards for the establishment of a system of civil judicial relief.Chapter I,on the basis of summarizing the development history of “access to justice”,holds that “access to justice” shall be understood as the “right to relief” for the first time.The meaning of “access to justice” has undergone four major changes in historical development: at the first stage,“access to justice” emphasized the right of citizens to refer their disputes to court.At the second stage,“access to justice” emphasized the provision of judicial relief for citizens to exercise their right of action through judicial reform.At the third stage,“access to justice” paid more attention to the development of extrajudicial dispute resolution mechanisms,such as ADR mechanism and finally,“access to justice” rised to an international concept that guides the international community in safeguarding citizens' social all-round fairness and justice,such education,welfare,economy.Thus,access to justice is essentially a civil right,i.e right to relief,that guarantees citizens' right to relief through judicial and extrajudicial measures in order to finally achieve equity and justice.Since the Hague Convention on International Access to Justice emphasizes the guarantee and maintenance of the right to citizens' relief,which is a “right of judicial relief”,the Convention has been translated as the Convention on International access to justice,instead of adopting the translation provided by the Ministry of Foreign Affairs.Chapter II provides an overview of the general issues of the Hague Convention on Access to Justice.The Hague Conference on Private International Law adopted two conventions,namely the Convention on Civil Procedure in 1905 and Convention on Civil Procedure in 1954,which served as the foundation for the development of the Hague Convention on Access to Justice in 1980.In accordance with the drafting background of the Hague Convention on Access to Justice and the Moller report,the purpose of the Convention is primarily to fully respect and safeguard the judicial interests of individuals and to promote international judicial cooperation in civil and commercial matters.In terms of content,the Hague Convention on Access to Justice can be divided into four core elements,such as legal aid,enforcement of cost security and cost and expense judgments,acquisition of instruments and entries,exemption from detention and safe conduct.Chapter III has carried on the research on the legal aid under the Convention.The Convention is based on the principle of prohibition of nationality discrimination and expressly provides that legal aid applies not only to nationals of States that are parties to the Convention,but also to citizens who have their habitual residence in the State party.The application process for legal aid uses a combination of a central authority and a transmitting authority as a means of maximizing international access to justice.However,there are also some problems in legal aid under the Convention,such as poor implementation of legal aid in the State party,the failure to resolve practical disputes over legal aid applications by legal persons and the disconnection from the era of network technology.Chapter IV mainly focuses on the research on the security for cost and the cost and expense judgment in the Convention.In accordance with the provisions of the Convention,the Convention exempts from discriminatory security for cost and may apply to nationals and legal persons of States that are parties to the Convention.However,there are also some shortages in the provisions on security for cost under the Convention,such as the absence of a clear provision for the habitual residence of legal persons,the ambiguity of the meaning of Article 14,the serious fragmentation of the scope of application and the limited application scope of exemption from security for cost.As far as the enforcement of cost and expense judgments is concerned,there is a complementary and balanced relationship between the enforcement of cost and expense judgments under the Convention and security for costs,a system that lacks independent implementation procedures and independent value.Chapter V discusses the acquisition of the copies of entries and decisions,exemptions from detention and safety protection for experts,witnesses and appraisers.In terms of obtaining copies of entries and decisions,the Convention not only distinguishes entries from decisions,but also deals with the certification and cost of the entries and decisions based on the principle of the prohibition of nationality discrimination.However,there are also problems of unclear concepts of “civil and commercial matters” and “decisions”.As far as exemption from detention is concerned,the provisions of the Convention mainly address the provisions of the domestic legislation of some States that allow for the imprisonment of forced debt.The exemption from detention clause is an expression of the principle of national treatment in judicial protection and should therefore be limited by the principle of national treatment,whether it is an understanding or use of the exemption clauses.In addition,the protection of experts,witnesses and appraisers is one of the original elements of the Hague Convention on Access to Justice.With the increasing frequency of international civil litigation and the deepening of the international community's cooperation in the field of civil and commercial matters and the further development of the concept of due process,the security protection of experts,witnesses and appraisers has gone beyond the scope of criminal law and is attached importance to the rules of international civil procedure law.However,the provisions of the Hague Convention on Access to Justice are too general.In the specific application process,restrictions should be imposed on the witnesses' nationality,the summons of judicial proceedings and specific cases.Chapter VI discusses the necessity and feasibility of China's accession to the Hague Convention on Access to Justice.First,accession to the Convention can not only respond to the real needs of our country,but also solve the problemss existing in domestic legislation and bilateral mutual legal assistance agreements in our country with regard to the judicial relief system.In addition,the accession to the Convention can also improve China's judicial relief system,improve the degree of modernization of judicial relief in China,and is also a necessary means to enhance the judicial protection level of human rights in China.Second,the provisions of the Convention on legal aid,legal advice,exemption from security for cost,acquisition of entries and decision,physical detention and safe conduct do not conflict with China's legal provisions and treaty practice.Therefore,there are no substantive legal obstacles to the accession to the Hague Convention on Access to Justice.Last,taking into account the actual situation of the Convention,China,upon acceding to the Convention,could make reservations to Articles 4(3),Article 7(2),Article 13(2)and Article 28(1).Moreover,in order to solve the problem of the application of the Convention in the Special Administrative Region,it is necessary for China to settle the application of the Convention to the Hong Kong Special Administrative Region and the Macao Special Administrative Region in accordance with the provisions of the Convention.