Study On The Recognition And Enforcement Of Foreign Judgment

In the field of international civil and commercial matters,the difficulty of recognition and enforcement of foreign judgments has always been the key fact of frustrating the development of International civil and commercial litigation.The implementation of the recognition and enforcement of judgments has been seriously impeded due to each country's discretion in determining whether or not to recognize and enforce a foreign judgments and under which conditions to recognize and enforce a foreign judgments,as well as the huge difference in the recognition and enforcement of foreign court judgments in legislation and judicial practice between different countries.In the first two chapters,this paper analyzes the reasons of the hard of recognition and enforcement of judgment from the theoretical point of view.Especially in the second chapter,the paper analyzes and compares the different standards and applications,between different countries,of the conditions for the recognition and enforcement of foreign judgments,so as to clarify the reasons for the difficulty of recognition and enforcement of foreign judgments.For the purpose of promoting the development of international civil and commercial litigation,the Hague Conference on Private International Law(hereinafter referred to as “the Conference”)has been committed to the development of a uniform Convention on the recognition and enforcement of foreign judgments.The Conference started the draft of convention on the recognition and enforcement of international civil and commercial judgments since 1992,when a proposal from United State was made to undertake work on jurisdictional bases and the recognition and enforcement of judgments in civil and commercial matters.After the arduous negotiation of foreign countries,the Conference has achieved some results,and passed the Hague Convention on the choice of Court Agreements(hereinafter referred to as “Choice of Court Agreement”)in 2005.Later,in 2015,the draft Convention on the recognition and enforcement of foreign judgments(hereinafter referred to as "the Draft")was formed.At present,the Draft is in the stage of intergovernmental negotiations,the Chinese government has sent a delegation to participate in the meeting and made valuable comments.Take this upsurge,this paper tries to make a rough analysis of the Draft on the basis of a brief overview of the system and content of the draft.At the end of this paper,the paper focus on the legal status of China's recognition and enforcement of foreign judgments.At present,the basis of our country's recognition and enforcement of civil and commercial judgments is mainly the Civil Procedure Law of our country,as well as bilateral treaties and reciprocal relations with other countries.In the domestic legislation,the legal system of our country is too simple,and it does not make specific provisions for the specific trial conditions.There is an urgent need of improving the relevant legislation.In addition,recognition and enforcement of foreign judgments is mainly based on the principle of reciprocity because our country has only signed the judicial assistance agreement with around 30 countries,which does not include the main Anglo American law system countries and countries closely related to China's economy and trade.Too be specific,China now adopts the principle of fact reciprocity when examining the reciprocity relation,which means the courts will determine whether there is a precedent in the country which made the original judgment for the recognition and enforcement of the original judgment in our country.This result in the difficult of recognition and enforcement of foreign judgment in our country,and in return,our judgment will be hard to be enforced and recognized in the foreign country,and our judgment even suffered a "revenge" in Japan.In the end,this paper tries to put forward some suggestions on recognize and enforce foreign judgments in China by through studying the lack of legislation in China and the principle of reciprocity for the recognition and enforcement of foreign judgments.This paper is divided into four chapters,the main contents of each chapter are summarized as follows:The first chapter summarizes the concept and theoretical basis of the recognition and enforcement of international civil and commercial judgments.In defining the scope of the judgments of foreign nationals,there is a generally tend in making a broad sense of "foreign countries " and "court" and "judgment".Most country believes that "foreign countries" should cover the sovereign states in international law,other legal domains in a country where the legal system is not uniformed and the international organizations.Most country also believes that "Court" shall include the sovereign authority with jurisdiction and that "Judgment" shall cover the decisions and orders made in the proceedings.For the understanding of “civil and commercial matters”,there is no conclusion because of the differences in the division of legal departments between different countries.Most countries generally attempted to exclude the cases in the nature of public law,which is recognized by the most countries.In addition,the theoretical basis of the recognition and enforcement of foreign judgments is mainly developed from the theory of international comity.It then developed into the current principle of reciprocity.The second chapter starts with the explanation of conditions of the recognition and enforcement of foreign judgments,and then analyzes the main difficulties faced by the recognition and enforcement of foreign judgments.The main dilemma is: 1.there are differences between the direct and indirect jurisdiction rules on the issue of jurisdiction;2.different countries have different understanding of the finality of the judgment;3.there is different understanding of public order and two different views named subjective and objective theory;4.Different countries have different views on the specific connotation and application of due process.The third chapter gives an overview of the contents of the Draft.In the scope of application,the Draft excludes cases with nature of public law and the arbitration cases.In the issue of jurisdiction,the Draft lists the indirect jurisdiction in a single mode.On the basis of the recognition and enforcement of foreign judgments,the Draft relaxes the requirement on the finality of the judgment,becomes more cautious about public policy and makes only principle provisions on the issue of due process.The fourth chapter focuses on the deficiency and perfection of the recognition and enforcement of foreign judgments in China.At present,the main basis for the recognition and enforcement of foreign judgments in our country is domestic law,bilateral judicial assistance agreement and reciprocity principle.However,the domestic legislation of our country is too simple and lack of maneuverability and the few judicial assistance agreements in our country only play a limited role.Most cases of recognition and enforcement of foreign court decisions are still subject to review by the principle of reciprocity and in combination with domestic law.Because of the fact that China insists on the “fact reciprocity",it is difficult for us to recognize and enforce foreign court judgments.In order to promote international judicial cooperation,China urgently needs to improve domestic legislation,relax the applicable principle of reciprocity and actively participate in the discussion and formulation of international conventions.