Foreign Court Decision Recognizes The Principle Of Reciprocity, And Implementation

The recognition and enforcement of foreign judgments involves the conflict and choice between defending state sovereignty and protecting private interests. For protecting private interests on the promise of defending state sovereignty, most countries adopted the principle of reciprocity as one of the conditions to recognize and enforce foreign judgments. However, as the international trade activities and population transience becoming more frequently, and the number of international litigation increasing greatly, more and more judgments need to be recognized and enforced in foreign countries. Therefore, because of its intrinsic defects, which are hindering the free flow of foreign judgments between countries, the principle of reciprocity gets more and more criticisms.To reserve or to abolish, this is a question. The purpose of this article is just to find the answer to this question. In chapter one, the article defines the special meaning of reciprocity in the field of recognition and enforcement of foreign judgments, and divides reciprocity into three forms: conventional reciprocity, legislative reciprocity and factual reciprocity. Besides, the author analyzes the relationship between reciprocity and other conditions of recognizing and enforcing foreign judgments, concluding that reciprocity has been used as the most important condition. In chapter two, the author conducts historical and comparative research on different countries' legislation about reciprocity, concluding that the development of reciprocity is indissolubly linked with the theory of comity, and divides the legislation into three models: absolute reciprocity, partial reciprocity and no reciprocity. In chapter three, the article discusses the two most controversial problems: the nature of reciprocity and foreign judgments, and the relationship between reciprocity principle and Res Judicata principle. The author holds that, adopting reciprocity principle does not mean to resolve private international law problem with public international law method, and reciprocity principle does not conflict with Res Judicata principle. In chapter four, on the foundation of comity theory and game theory, the author demonstrates the rationality and necessity of reserving the reciprocity principle, and holds that, given the principle can encourage countries to recognize and enforce foreign judgments, it is a realistic choice to reserve reciprocity principle. Furthermore, on the background of Convention on Choice of Court Agreements, the author prospects the development tendency of reciprocity principle. On the basis of the aforesaid analysis and demonstration, the author discusses the application of reciprocity in China's legislation and administration of justice in chapter five. In this part, the author sums up the characteristics of China's reciprocity principle, and makes suggestions to improve China's legislation and administration of justice in the field of recognition and enforcement of foreign judgments.