Study On The Recognition And Enforcement Of Chinese Court Judgments In Foreign Countries

The recognition and enforcement of a judgment is the final process of the civil procedure, which finalizes the disputes between plaintiffs and defendants and clarifies the rights and duties between them. As for a multi-countries judgment, the recognition and enforcement of it is much more complex than regular one, for it involves international civil judicial assistance, regional treaties and legal systems and principles of the applied countries.Currently the Chinese judgment would be recognized and enforced in foreign countries through the following paths: the Civil Judicial Assistance Treaties China signed with the applied country, both China and the applied country are the members of an International Treaty regarding the recognition and enforcement of a foreign judgment or the two countries has a reciprocal relationship with each other. Even if none of the above requirements were met, the Chinese judgment can still be recognized and enforced under the internal law of applied country.Although there are multiple ways to seek recognition and enforcement in foreign countries, rare cases have been witnessed to recognized and enforced. Such situation was changed just a few years ago. There are some factors that obstruct the recognition and enforcement of Chinese Judgment: first of all, applied countries tend to be conservative towards the recognition and enforcement of a foreign judgment for it may weaken the judicial sovereignty. Second, China has not yet established reciprocal relationship with its major trading partners. Last but not least, though China now has formed comprehensive civil proceedings of cases involving foreign elements, some judges who are reviewing foreign matter cases still lack experience, which may fail to protect the legitimate interest of litigation parties, and eventually affect the recognition and enforcement in other countries. What’s more, because of the huge difference in legal systems among different countries, especially the complex legal systems in common law countries, judgment creditor sometimes choose not to apply for the recognition and enforcement in foreign countries given the estimated high timing and money expense. Knowing the system of recognition and enforcement systems in other countries would ease the difficulty of the application.This paper puts emphasis on the general principle of recognition and enforcement of foreign judgment worldwide and specific countries like USA, UK and Germany, which are also the main trading partners of China. Since currently there is no international treaty that regulates the recognition and enforcement of foreign judgments like New York Convention in the area of international arbitration, the principle means that regulate this matter are regional treaties and internal legislation.In terms of international treaties, the Hague Private International Law Conference has done some helpful attempts. In the year 1971, The Hague Private International Law Conference passed the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, this convention aims at narrowing the gap between countries on the policy of recognition and enforcement of foreign judges so that the litigation parties’ interest would be protected. However, this convention is way ahead of the current circumstance, many country choose not ratify or join this convention temporarily. Since the number of ratification does not reach the required standard, this convention has not come into effect yet. Meanwhile, regional treaties have achieved some progress in this matter. The Europe Union has found Brussels system and Latin America Countries founded a regional treaty as well. Both treaties have established the system of recognition and enforcement of foreign judgment of among their contracting parties.In terms of internal legislation, most of countries require reciprocal relations between them and the judgment-made country. The reciprocity principle stems from the Theory of Nation Comity. Nation Comity came from the internal environment when European countries transform from feudalism to capitalism. Requiring reciprocal relation when recognizing and enforcing a foreign judgment would help to protect this country’s judicial sovereignty and urge the opposite country to adopt the same policy. However, reciprocity principle may cause a Game Theory dilemma between countries. As in the practical area, some countries have adopted policies that soften the reciprocity principle and simplify the application procedure of recognition and enforcement.To illustration the great difference between countries in terms of recognition and enforcement, this paper select three countries, USA, UK and Germany as samples to study their unique mechanisms of this procedure. As a federal and common law country, US has two sets of policy. For those states that have adopted the Uniform Foreign Money Judgment Recognition Act, the Act applies to the applications, for those states that have not adopted it or when it comes to non-money judgment, the case law, which contains principle of international comity and collateral estoppels, applies. The British law also has two systems. One is the statutes that apply to the European countries and countries having reciprocal relation with it. The other one is common law system, which requires the judgment creditor to reclaim their interest through a lawsuit in British court as UK has adopted the Debt theory. The policy regarding recognition and enforcement of foreign judgment in Germany representing general civil law countries, asides from the countries that have treaties with Germany, other countries may have reciprocal relationship with it in order to get their judgment recognized and enforced.This paper then discussed the possible ways to improve Chinese judgment’s recognition rate in foreign countries, which requires joint efforts from the litigation parties, trial courts and the government. First of all, dispute parties should choose proper places to solve their disputes and be clear of the legal system of the applied countries. Secondly, the court should put its emphasis on protecting litigation parties’ legitimate rights and properly apply foreign rules to reach a verdict. Thirdly, the Chinese government should enhance international civil judicial assistance relationship with other countries.This paper has four chapters to discuss the recognition and enforcement of Chinese judgment. Chapter One defines the concept of recognition and enforcement of foreign judgment, and also analyses the current status and problems of Chinese judgment’s foreign recognition and enforcement. Chapter Two introduces the reciprocity principle and international and regional treaties regarding the recognition and enforcement of foreign judgments. In the analysis of reciprocity principle, the Game Theory is introduced to illustrate the possible dilemma reciprocity principle may cause. This chapter also discusses and criticizes the trend in the recognition and enforcement of foreign judgments. Chapter Three introduces the recognition and enforcement policies in USA, UK and Germany, and also analyses first two Chinese cases that have been successfully recognized and enforced in US and Germany. Chapter Four expresses the author’s suggestion on how to raise the success rate of Chinese judgments from the aspect of litigation parties, court and government, and the reinforcement of international cooperation.