Study On The Fraud Exception In The Recognition And Enforcement Of Foreign Judgments

The civil and commercial judgments in any country only represent the determination results of their own judicial sovereignty,and do not have absolute extraterritorial effect.With the increasing frequency of international civil and commercial activities,the demand for recognition and enforcement of foreign judgments in other jurisdictions is also increasing.Therefore,improving the assistance system and promoting the realization of interests of parties as far as possible is in line with the judicial demands of most countries.Searching the international conventions and the legislative and judicial practice of various countries,there has been a lack of detailed explanation on the coverage and review mechanism of fraud exceptions.Different theoretical propositions and judicial practices have an adverse impact on the circulation of foreign-related judgments.At the same time,in the field of recognition and enforcement of foreign judgments in China,the legislative provisions and judicial practice of fraud exceptions are almost blank.Therefore,this paper intends to determine the connotation,manifestation and classification of fraud exception in theory,and then further analyze the rationality of establishing fraud exception as a separate defense,hoping to put forward suggestions for the further improvement in our country.This paper contains four chapters.The first part of first chapter combs the specific conditions for the recognition and enforcement of foreign judgments,and defines the position of fraud exception in this system.On this basis,the second part further deepens the understanding of fraud exceptions.It first defines the connotation of the fraud behavior and distinguishes it from the “fraud” in civil law.Then,it shows various forms of fraud exceptions,and also explains the complexity and the necessity to reasonably classify such complex situations.Finally,the author classifies fraud exceptions to make them meet the standard of substantive and procedural review as much as possible.The second chapter and third chapter are the main content of this paper.The second chapter discusses the necessity of establishing fraud exception as a separate defense system.Then the third chapter analyzes the specific review mechanism in the implementation of fraud exception.To be specific,the second chapter first explains that the fundamental value of fraud exception system,and then by introducing the different provisions of international conventions and the judicial practices of different countries,it shows that the biggest confusion of fraud exception as a separate defense system lies in its differences with the exception of public policy.The author then discusses the distinction between them in terms of significance requirement,coverage and review standard,and illustrates that including fraud exception in the scope of public policy exception is not conducive to the realization of its natural justice value so as to finally clarify the independence of fraud exception system.The third chapter mainly discusses three problems.The first problem is the conflict between fraud exception review and non-merit review principle.Although the principle of non-merit has been widely adopted and applied,in the actual needs of the review for foreign judgments,especially when examining whether it violates the public policy or whether there is fraud,courts often need to review factual determination and legal application in the original trial.Therefore,there will be a breakthrough in the principle of non-merit review.The typical performance is that “procedure” is specially deleted in the 2019 Hague Convention.After redefining the semantics of the principle of nonmerit review,prohibiting merit review is not equivalent to denying the review of substance.The principle of non-merit review aims to emphasize that it only examines whether the foreign judgment meets the external conditions for recognition and enforcement,rather than the internal substantive content.In other words,the purpose of the review is not to judge whether the original judgment case is correct,but only to judge whether it meets the recognition and enforcement conditions.Therefore,the review scope of fraud exception should not be completely limited to prohibiting merit review.The second problem is that by analyzing the practice trend of blurring the boundary between external fraud and internal fraud in United States,this part shows that when it comes to the fraud of evidence,the definition of them is difficult to distinguish.Combined with the classification of fraud exceptions in chapter 1,it should be believed that the fraud related to the procedure can certainly lead to the result of refusing recognition and enforcement.The fraud defense involving case substance should not be totally denied.And the fraud influencing the fairness of trial system itself is also an important factor that should be considered.The third problem is the evidence in the review of fraud exceptions,which focuses on the significance of the parties to prove that they did not find fraud behavior in original trial and found new evidence after the judgment was made.The fourth chapter introduces the basic situation of the blank legislative provisions of fraud exception and the lack of application in practice,and explains the irrationality of China’s attitude towards fraud exception combined with practical cases.Then,according to the contents discussed in the previous chapters,in order to improve its fraud exception system,China should stipulate the fraud exception as a separate defense,establish a specific and reasonable review mechanism,and clarify the value choice of judgment circulation and judicial justice in the fraud exception system,so as to promote the improvement of regulations and the development of practice,and better protect the legitimate interests of Chinese parties in foreign-related civil and commercial activities.