Procedural Protection For Judgement Debtor Under Brussels ? Regulation

Exequatur refers to the legal instrument that allows the judgment to be enforced in the requested country after the court of the requested country examines the judgment within its authority during the process of recognition and enforcement of the judgment.It is the formal approval made by the court of the requested country for the recognition or enforcement of a foreign judgment.This procedure is a manifestation of the state's exercise of state power in the field of judgment recognition and enforcement,and plays an important role in the field of judgment recognition and enforcement.However,when the Brussels I Regulation was revised in 2012,the procedure of exequatur was cancelled.That is to say,when the judgment creditor under the Regulation applies for recognition and enforcement of the judgment,the court of the requested country does not need to declare the enforceability of the judgment.To a certain extent,the judgment made by the foreign court can be recognized and enforced automatically just like the judgment made by the domestic court of the requested country.As a result,a new problem arises: when the procedure of the original court damages the procedural rights of the judgment debtor,and the judgment debtor has not raised any objection to the recognition and enforcement of the foreign judgment,how can the procedural rights of the judgment debtor under Brussels ? Regulation be guaranteed? This issue can be divided into the following two specific issues: First,how does Brussels ? Regulation itself protect procedural rights for the judgement debtors? Second,can the judgment debtor under the Brussels ? Regulation receive procedural rights protection outside the Regulation? The former can be described as the internal guarantee provided by the Brussels I Regulation for the judgment debtor,while the latter is the external guarantee provided by the European Convention on Human Rights for the judgment debtor.The first question focuses on how the Brussels ? Regulation itself guarantees the procedural rights to judge debtors.In this regard,the paper mainly adopts comparative research methods.Compared with the 2001 Brussels I regulation,the cancellation of exequatur in 2012 Brussels I Regulation can reduce the waste of litigation costs and will not cause the balance of procedural justice to be completely biased towards judgment creditors.the “Brussels Regime” still provides a certain degree of procedural rights protection for judgment debtor.However,due to the inconsistent legal provisions of member countries and the complexity of cross-border litigation,the internal procedural protection provided by the “Brussels Regime” have limitations.For example,the “reasonable time” before the requested court takes the first enforcement measure is different,whether the execution time of the judgment is significantly shortened under the new regulations is uncertain,and the procedural guarantee provided for the judgment debtor by Brussels I Regulation itself is not comprehensive,etc.The second question can be raised for three reasons.First,all EU member states have acceded to the European Convention on Human Rights.When the procedure of the original court damages the procedural rights of the judgment debtor,the judgment debtor has the right to lodge a complaint with the European Court of Human Rights for procedural protection after exhausting local remedies.Secondly,the Charter of Fundamental Rights clearly states that the fundamental rights transplanted from the European Convention on Human Rights should not be lower than the guarantee standard of the European Convention on Human Rights.The European Court of Justice often refers to the European Convention on Human Rights and the judicial precedents of the European Court of Human Rights as the basis of claim.Finally,EU member states are parties to the European Convention on Human Rights,and the courts of member states have the obligation to review foreign judgments in accordance with the Convention in order to protect the procedural rights of judgment debtor.For the second question,the thesis mainly adopts the method of case study.The applicable subjects of the European Convention on Human Rights include the European Court of Human Rights,the European Court of Justice and the courts of EU member states.Through the research on the judicial precedents of various courts,it is clear that there are direct methods and indirect methods for the right to a fair trial stipulated in article 6(1)of the European Convention on Human Rights to intervene in the recognition and enforcement of judgments.All courts have provided procedural protection for judgment debtor under Brussels ? Regulation in accordance with the European Convention on Human Rights.The European Court of Human Rights can only play an auxiliary role in the protection of human rights,and its procedural protection standard for judgment debtor is the standard of “flagrantly violate justice”.Since the EU has not yet acceded to the European Convention on Human Rights,the European Court of Human Rights should apply the “Bosphorus test” or “presumption of equal protection” when examining whether the enforcement of EU legislation by EU member states violates the basic human rights of judgment debtor.The protection provided by European Court of Human Rights is a “minimum standard” protection.The European Court of Justice also places great emphasis on the protection of the right to a fair trial.By explaining the concepts of “public policy” and “judgment” in the Brussels I Regulation,it is clear that Article 6(1)of the European Convention on Human Rights provides guidelines for the determination of the connotation of “public policy”.The requirement of independence and due process is interpreted as the proper meaning of freedom “judgment”.As a state party to the European Convention on Human Rights,EU member states are obliged to examine whether a judgment issued by a court that originates from a state party or a non-state party to the European Convention on Human Rights violates the provisions of the Convention.The “unified certificate” plays a greater role in safeguarding the procedural rights of the judgment debtor,but there are still deficiencies.The courts of EU member States can try to adopt “ex posteriori review” procedure.The courts of the member state requested for recognition and enforcement can carry out an active “ex posteriori review” to fairly protect the judgment creditor's right to relief and the judgment debtor's right to a fair trial.With regard to the criteria for review by requested member states,if the foreign judgment violates the “minimum standard”,the court of the requested country shall not recognize and enforce the foreign judgment.Learning from the “proportionality test” developed by the European Court of Human Rights may provide ideas for the determination of the “minimum standards”,so as to find a better balance between the goal of free flow of judgment and the goal of procedural rights protection for the judgment debtor.In a word,the cancellation of exequatur of Brussels ? Regulation will not lead to unequal procedural rights of judgment debtor and judgment creditor under the Regulation.The internal safeguard mechanism provided by the Brussels ? Regulation and the external safeguard mechanism provided by the European Convention on Human Rights are combined to jointly provide procedural justice for judgment debtor.