A Study On Conditions For The Recognition And Enforcement Of Foreign Judgments Under Sino-foreign Bilateral Judicial Assistance Agreements

Recognition and enforcement of judgments is an important part of international judicial assistance.Appropriate international flows of judgments are conducive to ensuring the steady progress of the "Belt and Road" construction.Considering that more and more countries place fewer conditions for reciprocity,the substantive conditions for the recognition and enforcement of judgments must be carefully evaluated.China’s domestic law only provides simple conditions for the recognition and enforcement of judgments.Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters has not yet entered into force,many provisions of which are controversial.The academic circle and judicial practice have not paid enough attention to the bilateral agreement mechanism for recognition and enforcement of judgments,and the provisions of the existing Sino-foreign bilateral judicial assistance agreements need to be improved.Based on this background,this research focuses on the texts of Sino-foreign bilateral judicial assistance agreements and the judicial practice of Chinese courts.It draws from the useful experience of foreign bilateral judicial assistance agreements and related judicial practices of foreign courts,and uses comparative research,quantitative statistics,case analysis,value analysis,historical research and other research methods,demonstrating the status and function of Sino-foreign bilateral judicial assistance agreements in international cooperation of judgment recognition and enforcement,and put forward suggestions for improving the conditions for recognition and enforcement of foreign judgments under Sino-foreign bilateral judicial assistance agreements.Domestic legislation and multilateral conventions have played important roles in recognition and enforcement of foreign judgments.Nevertheless,they have their own insurmountable limitations.Bilateral judicial assistance agreements can make up for the shortcomings of domestic legislation and the multilateral conventions.Bilateral judicial assistance agreements are more effective than the multilateral conventions,the former of which is easier to be interpreted,and can provide many complementary measures.When dealing with the relationship between domestic legislation,bilateral mutual legal assistance agreements and multilateral conventions,it is necessary to abandon zero-sum thinking,actively promote the conclusion and revision of bilateral judicial assistance agreements,and use bilateral judicial assistance agreements to promote the development of multilateral conventions and domestic legislation.It is necessary to keep appropriate order between domestic legislation,bilateral judicial assistance agreements and multilateral conventions.Among the basic theories of private international law,the New International Comity theory conforms to the trend of private international law,highlights the reciprocal relationship between countries,helps deepen the level of international cooperation,and helps balance national interests and personal rights.Using the New International Comity theory as a guide to improve the conditions for the recognition and enforcement of foreign judgments in Sino-foreign bilateral agreements,it is necessary to follow the principles of multilevel,human rights protection,facilitating validity,and specialty of China.China can accept memorandums of judgments recognition and enforcement without treaty nature,but signing bilateral judicial assistance agreements with legal effect is still the preferred option.Emphasis should be placed on selecting countries with high requirements for reciprocity as the contracting parties for memorandums.As far as the expressions of the conditions for recognition and enforcement of judgments are concerned,the negative mode is more in line with the legal basis of recognition and enforcement of foreign judgments,and it is consistent with the judicial review mode of recognition and enforcement of judgments,which is conducive to optimizing the burden of proof.Adopting the expression "may refuse to recognize and enforce" rather than "should refuse to recognize and enforce" is beneficial to safeguarding the interests of both contracting parties,and also enhances the flexibility of the terms of recognition and enforcement of foreign judgments.When China concludes and revises relevant bilateral judicial assistance agreements,it should not review merits in recognition and enforcement of judgments.As far as indirect jurisdiction clauses,exclusive jurisdiction should be included in the indirect jurisdiction clauses of Sino-foreign bilateral judicial assistance agreements,and the indirect jurisdiction clauses should not be limited to exclusive jurisdiction.The review of indirect jurisdiction shall be based on the law of the requested country,but the rules of direct jurisdiction of the requested country shall not apply.A model that enumerates the basis of indirect jurisdiction should be adopted,which is conducive to promoting the equality of international flow of judgments,safeguarding China’s judicial sovereignty,and improving the predictability of jurisdictional matters.The indirect jurisdiction clauses of the Sino-foreign bilateral judicial assistance agreements should include affirmative clauses and open clauses,which is conducive to promoting individual justice.General jurisdictions,jurisdiction by appearance,jurisdiction by agreement,jurisdiction over contract and tort,and jurisdiction with protective nature should be improved.As far as certainty of foreign judgment clauses,examining the certainty of foreign judgments in accordance with the law of the requesting country,which complies with the rule of res judicata,will not damage the judicial sovereignty of the requested country,and has strong operability,but it is impossible to make a review of the judgment only in accordance with the law of the requesting country.Regarding the choice of terms in the certainty clauses of the Sino-foreign judicial assistance agreements,the use of the term "effective" can balance the differences between the countries with common-law system and civil-law system in the determination of the certainty of judgments.There are deficiencies in clarity in using only specific terms as the criteria for determining the certainty of a judgment.Corresponding supplementary provisions are advised to be added,including the issue of appealability of the judgment,the statute of limitation for enforcement,enforceability of judgments including interests.As far as due process clauses,due process rules in bilateral judicial assistance agreements cannot deny the civil procedure system provided by a country’s domestic law.The standard for review and recognition of due process of foreign judgments should be higher than the due process standards in ordinary civil litigation.The scope of procedural review should be limited.Service by mail has not infringed the judicial sovereignty of a country,and recognition of and enforcement of judgments involving service by mail should not be refused at all.Notification of service should be allowed under certain conditions.Violations of the principles of debate,volunteering,and good faith should result in refusal of recognition and enforcement of foreign judgments.As far as conflicting judgment clauses,the time standard has a basic status in determining the priority of a judgment,but it cannot be the sole criterion for determining the priority of a judgment.The priority of domestic litigation is conducive to maintaining the stability of domestic litigation,improving the efficiency of litigation,and protecting the rights of parties.As far as the similarity of judgment conflicts is concerned,the conditions of "same parties" can be retained,and the conditions of "same subject matter" are more suitable as the objective elements of judgment conflicts.For cases where the application for recognition and enforcement is in conflict with a court decision or pending lawsuit in the requested country,recognition and enforcement of foreign judgments should be refused.For conflicts between a pending lawsuit and application for enforcement of a judgment in a third country,the time of the lawsuit shall be main standard for judgment recognition.In the case of a conflict between a judgment and an arbitral award,the validity of the arbitration agreement should be reviewed.As far as public policy and fraud exception clauses,the scope of application of the public policy of the Sino-foreign bilateral judicial assistance agreements includes national sovereignty and security,public interests,and basic legal principles.Specific situations that infringe national sovereignty can be enumerated.It is not necessary to include sovereign immunity clauses.The conditions for application of public policy should have high standards,and the text of the Sino-foreign bilateral judicial assistance agreements should reflect "recognition and enforcement of judgments will obviously infringe" the public policy.Fraud exceptions differ from the principles of public policy and due process,and fraud exception clauses should be separately listed.The scope of fraud exceptions should be judged in a broader sense of fraud.A fraud defense should follow certain procedural limits.