Fraud Exception In The Recognition And Enforcement Of Foreign Judgments

With the rapid development of economic globalization and the continuous strengthen of international civil and commercial exchanges,the improvement of transnational dispute resolution mechanism is imminent.The recognition of foreign civil and commercial judgments plays a key role in protecting the interests of the parties as the last step.It is no longer confined by the traditional review on jurisdiction,such as finality and public policy and so on.As one of the defenses to refuse to recognize and enforce foreign court judgments,fraudulent exception has long history in the common law,and has always demonstrated its vigorous vitality in maintaining procedural justice of the rendering court and the litigation rights of the parties.However,the international convention and the domestic laws of various countries rarely explain the theoretical connotation of the fraud exception in detail.The principle of formal review of judgments recognition and enforcement also requires that no substantive review of the case should be conducted.Different theoretical foundations and different judicial practices in various countries collectively impede the circulation of the judgments.The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters adopted in July 2019 removed the restriction of fraud exception,which only included fraud concerning wrongful delivery,depriving the parties of presenting its case and other matters that severely affect procedural justice,without a previous consensus reached on the theory of fraud in the international community.In the period when we endeavor to build the image of judicial power that can make promotion to the circulation of judgments,and to protect the interests of Chinese parties in foreign-related civil and commercial lawsuits.If a foreign judgment is obtained by fraud and the legitimate interests of Chinese debtors are damaged,the judgment should be refused to be recognized and enforced.Therefore,it is particularly important to clarify the theoretical connotation of fraud,including clarifying the scope of fraud defense and propose a practice that is of guiding significance,which are the goals this thesis intends to accomplish.This thesis contains there chapters.The first part of the first chapter makes a conceptual determination of the fraud exception in the recognition and enforcement of foreign civil and commercial judgments discussed in this thesis,aiming to differentiate it from the concept in the civil law.The second part summarizes the current normative status of fraud exceptions.In the international view,it is frequently stipulated in international conventions and treaties but without giving it a clear connotation.In the domestic view,each country deals with fraud exception in different way.And the relationship between fraud exception and public policy exception is discussed in this part,pointing out the inconsistency between different countries and the importance of separating the fraud exception as defense.The second chapter is the core of this thesis.The first part puts forward the main problems in the application of the fraud exception mechanism.It starts with challenging the reasonableness of reviewing judgments made by equal judicial sovereignty,leading to repeated defenses or negative defense at the original procedure,the inefficience of recognition and enforcement of judgment which are obtained by actively participating in the original trial proceedings.Then from the point of fraud itself,discussing the scope of the fraud exception,such as whether fraud concerning substantive matters,jurisdiction and law application should be included.After that,the following part discussed the evolution of attitudes toward external fraud and internal fraud in practice,as well as the attitudes toward fraud defense in different situations where legal remedies are invoked,analyzing the rationale behind the evolution and conclude the reasoning of the judge.Summarized the rationality of the approach that should be adopted to deal with different types of fraud exception.The third chapter summarizes the main progress direction of handling different types of fraud exception.Then enumerate the trend of the influencing factors of the fraud exception,including the international convention which deleted the scope limitation,the pursuit of judgment circulation efficiency and the individual justice of each case.The key point is to clarify that the value of individual justice should outweight judgment circulation.Finally,combined with China's existing legislative blanks and lack of practical application,the unreasonable status of placing fraud exception within the scope of public order review,designed a set of fraud exception review system of guiding role.In short,this thesis hopes that thinking and analysis of the fraud exception mechanism in the recognition and enforcement of civil and commercial judgments can promote the further development of China's relevant judicial practice.