A Study On The Improvement Of China’s Consular Legalization System

In transnational civil and commercial exchanges,official documents issued by one country,such as court orders,birth certificates,degree certificates and so on,often need to be presented or used in another country.These documents are not automatically accepted by another country,but require a series of legalization procedures.Consular legalization refers to the confirmation of the signature and seal of an official document issued by a diplomatic officer or consular officer of a country in order to ensure the authenticity and credibility of the document.With the development of globalization and the increase of international communication,the transnational use of documents is increasingly frequent,and the demand for consular legalization is also increasing.The traditional procedure of consular legalization has to go through the civil registration department,the ministry of justice,the ministry of foreign affairs and the consulate of the country where the document is presented in the country of origin and other departments.The procedure is tedious and time-consuming,which is not conducive to the rapid flow of documents and the development of international trade activities.Consular legalization has been developing from the early visa application to the legalization of birth,marriage,degree,inheritance,adoption and other kinds of transnational documents.The objects involved have been developing with the development of society.As a post of consular officer,consular legalization has its corresponding provisions in many internationalconventions and national laws.China’s consular legalization process continues the traditional model,it is cumbersome and will also produce many problems in practice.There is no specific entity law on consular legalization in China,and the relevant provisions are scattered in the corresponding rules and regulations.As for the problems existing in China’s consular legalization system,this paper makes a detailed analysis from two typical perspectives of extraterritorial evidence and international trade.In terms of extraterritorial evidence,the evidence regulations issued by the supreme people’s court stipulate mandatory consular legalization obligations for extraterritorial evidence.Such a mandatory consular legalization obligation makes the judge in practice take the consular legalization as the criterion for the admissibility of evidence.However,consular legalization is not necessarily related to the authenticity and relevance of the evidence,it may mislead and constrain the judge’s determination of evidence in practice.In practice,judges exclude extraterritorial evidence without corresponding consular legalization procedures,which may improperly expand the scope of identification of "illegal evidence".The most important link for the proof of evidence should be the court’s cross-examination.However,due to the provision of judicial interpretation,the judge does not organize cross-examination and will directly excludes the evidence without certification in practice,and replaces cross-examination with certification,which is undoubtedly not in line with the identification standard of evidence.Due to the long time required for consular legalization,the parties may delay the litigation due to the delay of the consular legalization or the unpredictable processing time in practice,which will affect the judicial efficiency.On the one hand,the causes of these problems are due to the ambiguity and irrationality of the judicial interpretation itself.There is no clear definition of the specific types of extraterritorial evidence that need to be verified,nor is there any provision on the corresponding legal consequences and treatment methods if not certified.On the other hand,due to the limitation of transnational evidence collection,most parties can only collect evidence by themselves,and because the parties can only collect evidence by themselves instead of the official way,the court is more inclined to check whether the evidence meets the formal requirements.In the international trade industry,due to the cumbersome and time-consuming process of consular legalization,in order to protect their own trade,some countries will require the relevant documents of other countries’ exports to be certified by the embassy of the importing country in the exporting country.Such a provision makes consular legalization a non-tariff trade barrier.In Latin America and some other countries,it is also stipulated that the enterprises under investigation should provide the corresponding materials with consular certification in the anti-dumping investigation.Due to the strong timeliness of the response to anti-dumping litigation,it is not conducive to the protection of the interests of the enterprises if they cannot timely handle the consular legalization.As an international practice,consular legalization is ubiquitous,and most countries have not introduced the consular legalization system in the anti-dumping investigation.The practices of some countries in Latin America are not based on the WTO anti-dumping agreement,but on their own legislation and policies.From the practice of anti-dumping investigation for many years,the rationality of introducing consular legalization in anti-dumping investigation should be questioned.In a specific anti-dumping action,the adjudicating authority should take into account the actual situation of the respondent enterprises’ corresponding efforts,instead of making a decision merely on whether to submit materials that have been certified by the consul.Based on the above analysis of the problems in the consular legalization system,the author believes that although the consular legalization system is conducive to the confirmation of the authenticity and credibility of documents,it is necessary to simplify or even eliminate it.As an official act of embassies and consulates,embassies and consulates may not certify because some statements on documents violate the public order and interests of the country in practice.China adheres to the traditional consular legalization process which is time-consuming and expensive,and will also affect the development of transnational flows of people and international trade.In addition,the international community has started to simplify and cancel theconsular legalization mechanism.Both in terms of international trade and the flow of people,both at the multilateral level and at the regional level,there are corresponding provisions and practices to simplify and exempt consular legalization.In order to accelerate its own development,China should follow the international trend.Finally,the author puts forward some suggestions to simplify and perfect our country’s consular legalization system.In view of the innovative practice of the Hague convention on decertification and its international influence,China may consider acceding to the convention to simplify its consular legalization procedures.China should speed up the formulation of a unified consular legalization law to make consular legalization work in accordance with rules and reduce the burden on diplomatic agencies.The ambiguity and irrationality of the judicial interpretation should be modified and perfected,and the compulsory consular certification obligation should be transferred to the discretion of the judge.With the development of information technology,China can actively adopt electronic legalization procedures to further enhance the efficiency of consular legalization.