A Study On Mutual Recognition And Enforcement Of Civil And Commercial Judgments In The Mainland And Hong Kong

The recognition and enforcement of judgments is one of the ways of judicial assistance.The fact that the Mainland and Hong Kong both practice different social systems and belong to different legal systems separately creates a major obstacle to mutual recognition and enforcement of civil and commercial judgments between the Mainland and Hong Kong.On March 21,2016,the Supreme People's Court(hereinafter referred to as “Supreme People's Court”)and the Department of Justice of Hong Kong SAR(hereinafter referred to as “Department of Justice”)signed the“Minutes of the Talks between the Supreme People's Court and the Department of Justice on Negotiating Judicial Assistance in Civil and Commercial Matters between the Two Districts”.If the two districts successfully signed the “Arrangement Frameworkon Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region”(hereinafter referred to as “Arrangement Framework ”),there will be three Agreement in the field of recognition and enforcement of judgments between mainland and Hong Kong,which are “Arrangementon ReciprocalRecognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements between Parties Concerned”(hereinafter referred to as “Choice of Court Arrangement”),“the Arrangement on Reciprocal Recognition andEnforcement of Civil Judgments in Matrimonial and Family Cases by theCourts of the Mainland and of the Hong Kong Special Administrative Region”(hereinafter referred to as “Matrimonial Arrangement”),and theArrangement Framework.This article has four parts.The first part is mainly about the mutual recognition and enforcement of inter-regional judgments in the Mainland and Hong Kong.It is divided into two sections.The first quarter is an overview of the recognition and enforcement of inter-judgments.It first briefly defines China as a multi-jurisdictional country,which has four law districts.Secondly,shortly describes the process of mutual legal assistance between the Mainland and Hong Kong.It also highlighted the three-step plan mentioned in the Arrangement Frameworksigned by the two places.Then,it describes the construction process of the system of recognition and enforcement of judgments in both districts.and “Choice of Court Arrangement” and“Matrimonial Arrangement” are to as the cut-off points.Finally,it introduces the conditions for applying for recognition and enforcement of the other district's judgmentin the Mainland or Hong Kong.The second quarter of the section analyzes the legal obstacles to the mutual recognition and enforcement of judgments in the Mainland and Hong Kong.The first is the stipulation and understanding of certainty of judgement in the two districts.The judgment must be deterministic and a prerequisite for the recognition and enforcement of foreign jurisdictional decisions in all countries' laws and relevant treaty provisions.There is no objection that the Mainland and Hong Kong should be certain on the recognition and enforcement of judgments.However,due to the differences on the legal provisions and the legal understanding of the verdict,legal obstacles to the free flow of judgments between the two districts have been created.Second,the understanding of the types of cases is difference in the two district.The Mainland does not want to limit the types of cases.However,Hong Kong believes that there is a great deal of disagreement between Hong Kong and the Mainland on certain types of cases.Thirdly,it is the understanding about jurisdiction in the Mainland and Hong Kong.The first condition for the recognition and enforcement of the judgment of the foreign court is that the court of the original judgment has jurisdiction over the judgment.At present,there are major conflicts between the Mainland and Hong Kong in determining the jurisdiction of civil and commercial cases.Fourth,there are other factors that exist but are relatively less controversial.For example,on the court level,the two districts may not understand each other's court rank and authority at the initial stage of the consultation,and some disagreements arise.Lastly,we briefly introduce some obstacles caused by factors other than law.The second part is the commentary on the judicial system of theChoice of Court Arrangement.No matter how many legal obstacles or non-legal obstacles exist in the two places,the last two places still compromised each other and signed theChoice of Court Arrangement.This section consists of two sections.The first is the introduction of theChoice of Court Arrangement,followed by the analysis of the advantages and disadvantages of the Choice of Court Arrangement.It mainly included the determination of certainty,jurisdiction,types of cases,court registration,and safeguard measures.In the analysis of the advantages and disadvantages of the Choice of Court Arrangement,first affirmed the arrangement: implement the “one country,two systems” policy and promote judicial assistance;promote Hong Kong as a dispute resolution center in the Asia-Pacific region;encourage economic and trade cooperation between the two places;An important breakthrough was made in the area of ??conflict.In addition,the Choice of Court Arrangement also has some regrets:circumventing jurisdictional disputes,confined to the choice of courts at the time of the agreement;ruled out decisions made by natural persons for personal consumption,family matters,etc.;and the coverage of safeguard measures is too large.The third part is the further development of mutual recognition and enforcementof judgments in the two districts.It introduced and analyzed the Matrimonial Arrangement.This section is divided into two sections.The first section introduces the background of the signing of the Matrimonial Arrangement,including the recognition and enforcement of marriage and family cases in the other regions of the Mainland and Hong Kong,and further discusses the mechanisms for the lack of mutual recognition and enforcement of marriage judgments in the two districts.The second section introduces the contents of the Matrimonial Arrangement,which mainly deal with the types of marital family affairs covered by the Matrimonial Arrangement,as well as issues such as judicial jurisdiction that cannot be avoided in the mutual recognition and enforcement of judgments.The third section analyzes the Matrimonial Arrangement,which make up for the lack of mechanisms for mutual recognition and enforcement of civil cases in marriage and family,and protect the interests of disadvantaged groups in the civil relations of marriage and family,but there are also some shortcomings.The fourth part is the bold vision of mutual recognition and enforcement of judgments between the two districts.The author proposes ideas on the scope of the case,jurisdiction,and other matters.