A Study On The Transnational Recognition And Enforcement Of China’s Judgments

Further.development of economic globalization has spawned many foreign-related cases that require transnational recognition and enforcement. The recognition and enforcement of judgments is both substantive rights of the parties and the complex issues involved in a country’s judicial sovereignty and international civil and commercial exchanges. Because differences between countries have existed for a long time, unified restraint mechanisms with universal validity, for transnational recognition and enforcement of judgments, haven’t been fulfilled. Countries around the world, including China, prescribe the recognition and enforcement of foreign judgments in civil and commercial cases (in domestic Civil Procedure Law or in Recognition and Enforcement of Foreign Judgments) from the perspective of their domestic laws. Theory and practice also center on this. However, the other side of the coin has been ignored, in other words, the researchers should pay more attention on the issue that how to make domestic judgments recognized and enforced by foreign countries. In terms of the status quo in China, the recognition and enforcement of civil and commercial judgments made by the Court remains grave. In Civil Procedure Law, the problem of recognition and enforcement of foreign-related judgments is only prescribed in Article 280.Moreover; there is no further relevant legislation or judicial interpretation. Therefore, the issue that foreign judgments are "difficult to perform" should attract more attention.This paper is divided into four parts, adopting the model of progressive layers on the content arrangement.The first part focuses on putting forward an argument that our foreign-related judgments are hard to be recognized and enforced. This part mainly introduces that the status quo of recognition and enforcement of our foreign-related civil and commercial judgments abroad. Moreover, it discusses the disadvantages of domestic law to tackle this problem.The second part mainly analyzes the necessity of solving the problem that judgments are "difficult to perform". The author will refine fresh idea and conclude the significance of solving the problem of transnational recognition and enforcement of judgments, according to the four theories (the International Comity theory, the Vested Rights Theory, the Ne Bis In Idem theory, and the Debt theory) concluded from long-term practice in the international community.The third part is the main part of this paper. Based on the cases, the author will analyze the causes of the phenomenon that judgments are "difficult to perform". The content is divided into two levels. On the one hand, the first level focuses on the basic conditions if the judgments themselves need the extraterritorial effects. The discussion analyzed seven basic conditions in turn, such as the eligibility of jurisdiction, procedural fairness, finality of judgment, no existence of Litigation Concurrence, judgments legally obtained, application and appropriation of Applicable Law and no violation of public order in the country where the law is enforced. On the other hand, this part also analyzes how the principles (i.e. domestic legislation, bilateral treaties and multilateral international conventions, the principle of reciprocity) approved by country enforces the law affected the recognition and enforcement of foreign-related cases judgments.The fourth part is the end result of this paper. The author offers the thoughts and suggestions from six aspects to solve this problem, including the suggestions to the judgments themselves (i.e. to ensure the finality of the judgment and to actively respond to the review of foreign public order etc.),domestic legislative proposals(i.e. to perfect the existing laws and interpret the laws to cover legal loopholes etc.) and the suggestions to achieve reciprocity between nations and promote mutual legal assistance unification movement (i.e. to take the first step of reciprocity in an inclusive attitude as great power and to promote the unification movement of mutual recognition and court judgments between nations etc.).The fifth part is the last part of this paper. On the basis of a systematic summary of the foregoing discussion, the author reaches the final conclusion to foreign recognition and enforcement of our foreign-related civil judgments.