Reinventing China's Indirect Jurisdiction Over Civil And Commercial Matters Concerning Foreign Affairs

The perfect foreign judgment circulation mechanism can not only play an incentive role in promoting the cross-border circulation of judgments,but also play a defense role in safeguarding national sovereignty and protecting the interests of the parties concerned.The rules of recognition and enforcement of foreign judgments stipulated in the current legislation in China are only supported by the bilateral judicial assistance agreement and the principle of reciprocity,the bottom line is not to violate the national sovereignty and public interests,and supplemented by China's consistent cautious attitude and conservative stance,forming the rules of circulation of judgments that emphasize the defense function but neglect the incentive function.In order to reverse the current situation that most foreign judgments cannot be recognized and enforced in China,it is impossible to rely on the principle of reciprocity and judicial assistance agreement with inherent defects.It is also necessary to establish a new mechanism for recognition and enforcement of foreign judgments,so as to form a review standard for the universality,long-term effectiveness and stability of foreign judgments.The establishment of indirect jurisdiction rules can well fill the "vacuum" in the field of judgment circulation in our country.Meanwhile,it is more clear and efficient to take indirect jurisdiction as the review standard of foreign-related judgment circulation than the current rules.To achieve this purpose,to the our country present civil procedure law concerning foreign affairs make reshaping regulations in legislation,the indirect jurisdiction from hidden in some bilateral and interregional judicial assistance agreement "hidden rules" of the agreement's transformation is widely applicable to all foreign judgment "explicit rules",in orderto deal with in our country there is no bilateral judicial assistance agreement with a mutually beneficial relationship between countries recognition and enforcement of the court verdict.By comparing the legislative model of indirect jurisdiction with that of international conventions,it is concluded that the most suitable legislative model in China is the model of enumeration plus open indirect jurisdiction.The latest 2019 Hague convention on judgment issued by the Hague conference on private international law provides an important reference for listing matters in China's indirect jurisdiction legislation,and highlights an important trend in the circulation of international judgments,namely the convergence of the "white list".The enlightenment of the Hague convention on judgment to China is that the jurisdiction matters which have been widely recognized and accepted by all countries in the world should be incorporated into the indirect jurisdiction legislation of China to coordinate the imbalance between the incentive function and the defense function in the current judicial circulation mechanism.Reference the indirect jurisdiction stipulation in the ruling at the Hague convention is only starting point,and perfect our judgment recognition and enforcement rules for reproducing the ruling of law in our country circulation mechanism still exist many problems worthy to be discussed,such as indirect jurisdiction rules and reciprocity relation,refused to matters of recognition and enforcement of legislation and so on.Considering the current legislation of China temporarily did not include indirect jurisdiction rules,for the most suitable for our country's scholars indirect jurisdiction legislation mode still exists controversy,from different points of view but poor circulation of conviction and the disadvantages of current rules is objective existence problem,enumerated type and open type indirect jurisdiction as theoretical exploration and attempt has its rationality and necessity of role in the judicial practice effect remains to be the test of time.