The Preclusion Effects Of Foreign Judgments In Civil And Commercial Matters

According to the principle of finality of litigation,matters finally decided by a court with appropriate jurisdiction shall not be retried by other courts except for special circumstances.Although the principle has been generally accepted by the international community,there are obvious differences among countries in implementing the principle of preclusion law,and modern private international law has failed to provide suitable solutions to the conflict of preclusion law.Therefore,one country's in civil and commercial matters have different preclusion effects in different countries or regions,which also greatly reduces the implementation effect of the principle of finality of litigation in international civil litigation.For a long time,neither the academic circles nor the practical circles of private international law have paid sufficient attention to the preclusion effects of foreign judgments,and often confused it with the recognition of foreign judgments.It not only complicates the recognition of foreign judgments by introducing irrelevant technical problems,but also makes the conflict of preclusion law and the problem of choice of law hidden and neglected.With the formulation of the convention on the recognition and enforcement of the foreign judgments in civil and commercial matters and the implementation of the policy of promoting the free movement of judgments,it can be expected that more and more foreign judgments will be recognized by our country in the future,which will also make the importance and independence of the preclusion effect of foreign judgments increasingly prominent.Because in the context of the increasingly complexity of international litigation,there will certainly be a phenomenon that one party in practice claims that a dispute or issues that enters the court of our country has been adjudicated by a foreign judgment,and then applies to the court of our country to preclusion the specific dispute or issues from trial or adjudication.At this time,the court will face the question of whether and to what extent to give foreign judgments the preclusion effect.In the past,countries generally did not give foreign judgments the preclusion effect,but with the deepening of international civil and commercial communication,the construction of international civil and commercial order and the change of the idea of law,countries have begun to give foreign judgments certain preclusion effects.The theoretical and practical circles of private international law in China have not paid enough attention to the preclusion effect of foreign judgments so far.Relevant issues,especially the choice of law involved,need to be considered carefully.Therefore,in order to clarify the relationship between the preclusion effect of foreign judgments and the recognition of foreign judgments,to answer the question of what preclusion effects should be given to foreign judgments,this paper makes a comprehensive and systematic study on the preclusion effect of foreign judgments.First,some basic problems of the preclusion effect of foreign judgments are explained.The preclusion effect of foreign judgments in civil and commercial matters refers to the effect of a recognized or recognizable foreign judgment in the domestic country that preclude the parties from re-prosecuting or arguing for a specific claim or issue in the domestic lawsuit litigation,as well as the effect of precluding the domestic courts from hearing a specific claim or issue or making a decision inconsistent with the foreign judgments.It is the natural mapping of preclusion law on the effect of judgment,and has important institutional value and practical significance.Although there are some overlaps or similarities with the theory of res judicata which is often talked about in our country,the scope of coverage is beyond the scope of the theory of res judicata can cover,in cases where the system of res judicata is difficult to apply,implementing the principle of finality of litigation.It is based on and supported by the system and theory of preclusion effect of domestic judgment in civil and commercial matters in domestic law,and also has its own particularity.Although it is closely related to the recognition of foreign judgments,they cannot be equated or confused,and the two are not one-to-one correspondence.The recognized foreign judgments in civil and commercial matters will not necessarily be given the preclusion effect,and the refusal to grant preclusion effect to foreign judgments does not means the refusal to recognize the foreign judgments,and the clarification of the relationship between the two may contribute to rationalize and simplify the settlement of the recognition problem.The principle of finality of litigation provides an overall theoretical basis for the preclusion effect of foreign judgments,while the principles of res judicata,estoppel and abuse of procedure provide specific theoretical support for different aspects of the preclusion effect of foreign judgments.Secondly,demonstrate the choice of law on the problem of the preclusion effect of foreign judgments.In the practice of international civil procedure,when the court decides whether and to what extent to grant the preclusion effect of foreign judgments,it is necessary to resolve the choice of law problem first.The characterization of the preclusion effect of foreign judgments determines the result of this choice,or the necessity of the process of choice of law.In the context of the preclusion effect of the judgment itself has both substantive and procedural law attributes,due to the weakening of the distinction between procedural and substantive issues,and the loosening of the application of the lex fori principle.The choice of the applicable law should be determined after comprehensive consideration of the law that may apply and its consequences,and the process of choice of law should not be ignored or blindly apply lex fori principle.There are advantages and disadvantages in the choice of three applicable laws: the law of the country of origin of the judgment,the law of the place where the litigants invoke the plea of preclusion(ie,lex fori),adopt both the law of the country of origin and lex fori.In order to avoid underpreclusion or overpreclusion of undue influence on parties' interests or litigation and other unfair results,the European Union,the United Kingdom,and the United States no longer only apply a single applicable law,while taking into account both the law of origin and the law of the court,although they have different emphases,they all take the realization of justice as the highest guiding principle.Thirdly,the different types of preclusion effects that may be conferred on foreign judgments are explained,including claim preclusion effect,issue preclusion effect and the wider preclusion effect.The claim preclusion effect corresponds to the res judicata in the context of civil law countries,while the issue preclusion effect is a unique system of judgment effect in common law countries.Although most civil law countries do not accept the issue preclusion effect at present,driven by the important value and function of the system,the traditional theory and practice of effect of judgment in many of them are changing under the influence of the common law system.In view of the possible adverse effects of the claim preclusion effect and issue preclusion effect on the procedural rights and substantive rights of the parties,the application conditions and exceptions of these preclusion effects need to be properly limited to avoid serious injustice.The wider preclusion effects are based on relitigation abuse,Henderson v.Henderson abuse and collateral attack-abuse,etc.When the claim preclusion effect or the issue preclusion effect cannot be applied,the general terms of the preclusion effect of implementing the finality of litigation and maintaining the stability of the judgment are collectively referred to.Similarly,in order to avoid the occurrence of injustices,the judge should be given a certain discretion to fully consider the facts of the case and the public and private interests involved in the determination of the abuse of procedures,instead of absolute determination by rigid criteria.Finally,combined with the system and practice of our country on the preclusion effect of judgment,this paper puts forward some suggestions on the relevant issues that giving the preclusion effect to foreign judgments.Based on an objective view of the challenges faced by China in granting the preclusion effect to foreign judgments,combined with the legal tradition and judicial practice of our country,the development trends of countries on the issue of preclusion effect,the particularity of foreign judgments,and the reasonable practices of other countries.It is recommended that the applicable law on the preclusion effect of foreign judgments in our country should be adopt both the law of the court and the country of origin of the judgment,specifically,mainly based on the former and limited by the latter.Limiting the grant of preclusion effects to foreign judgments that already recognized by our country,and according to the specific case grant foreign judgments claim preclusion effects(in a narrow sense),issue preclusion effects and wider preclusion effect.While recognizing the court's applying the preclusion effect ex officio,fully affirm the necessity and importance of the party actively invoke the application.For complex issues involving the ascertainment of foreign law or estimate the foreign litigation procedures,the burden of examination of the court can be reduced by specifying the parties' burden of proof.Taking the balance of procedural justice and substantive justice,public interests and private interests as the basic principle and primary goal of dealing with the problem of the preclusion effect of foreign judgments.