Mutual Recognition And Execution Of The Cross-strait Civil Jurisdiction

It is unavoidable that a number of civil and commercial disputes happen between Taiwan and Mainland China when their relationship is becoming closer. Thus, taking the welfare of people across the Taiwan Strait into consideration, in order to safeguard their legitimate rights as well as to process the related legal cases, both Mainland China and Taiwan's legislatures enacted some related laws and regulations. Based on these legal documents,the related legal practice has developed across the Strait. Nevertheless,in addition to political interventions, there are significant differences in the the legal system and judicial procedures between two sides, which make the mutual recognition and enforcement of the civil and commercial judgments more complicated and cumbersome.With the rising number of the cases related to both sides, contradictions and problems are becoming increasingly prominent. Therefore, these problems attract the attention of manny theorists theorists and practitioners across the Strait, which range from the application of the principle of public order and good custom; the effect of the recognized judgment; the recognition and implementation of the arbitral award; to the inclusion of civil mediation, order of payment, public certificates and other instruments in the objects of recognition. Analyses of these issues, constitute the main elements of this paper. To be specific,this paper,for the purpose of promoting exchanges and cooperation between Mainland China and Taiwan, aims at analyzing these problems and questions from various perspectives in order to achieve reasonable conclusions and offer a resolution. It is divided into six chapeters with nearly forty thousand words.Chapter One mainly points out the problems and questions so as to the mutual recognition and enforcement of civil and commercial judgement across the Strait.To begin with, it describes the legal documents which aim to regulate the recognition and enforcement practice. In addition, it quotes the related cases to explain the practical situation of this issue and points out the related problems and questions.Chapter Two analyzes the legal requirements of the mutual recognition and enforcement of the civil and commercial judgement across the Straits. At first it compares the related legal requirements across the Straits. Then it analyzes both the practical and theoretical aspects of the most controversial part of these requirements, namely the principle of public order and good custom.Chapter Three focuses on analyzing the most controversial part concerning mutual recognition and enforcement of the civil and commercial judgement across the Straits. It first analyzes an legal case and related legal and academic documents.Then it achieves a conclusion that the civil and commercial judgements of Mainland China, which has already been recognized by Taiwan, are as effective as judgements made by courts of Taiwan.Chapter Four mainly discusses the recognition and enforcement of the conciliation statement and the order of payment across the Straits. It also analyzes the possibility of the mutual recognition and enforcement of both notarized documents and conciliation statements which are made by private institutions between Mainland China and Taiwan.Chapter Five points out the particularity of the arbitral award. It aims to reflect on the problems regarding the mutual recognition and enforcement of the arbitral award across the Straits, mainly including Ad hoc arbitration,simple practice as well as the conciliation statement.Also, it attempts to resolve the problems presented above.Chapter Six describes this paper's conclusion and presents the author's legal suggestions. This paper argues that the negative mechanism which obstructs the mutual recognition and enforcement between Mainland China and Taiwan should be abolished. Then, we are able to establish an new institution so as to mutual recognition and enforcement across the Straits through two methods, namely the unilateral legislation and the bilateral agreement between Mainland China and Taiwan.