Research On The Indirect Jurisdiction In China Based On The Hague Judgment Convention

With the development of China’s foreign trade and the construction of the Belt and Road initiative,China’s economic interactions with other countries are increasing day by day.Corresponding disputes are also emerging.The demand for recognition and enforcement of civil and commercial judgments of foreign courts is also increasing.When facing these cases,the court of the requested country needs to examine whether the judgment is in compliance with the relevant domestic legal provisions.The Hague Judgment Convention was adopted by the Hague Conference on Private International Law in 2019.It reflects the recognition and latest consensus of the international community on the review standard of indirect jurisdiction.And China’s current civil procedure law has no provisions related to indirect jurisdiction.Therefore,in judicial practice,different courts have adopted different review methods in it.This is not conducive to the development of international exchanges in China.It is also not conducive to protecting the judicial rights and interests of applicants.This paper intends to put forward the exploration of China’s indirect jurisdiction system by combining the provisions of indirect jurisdiction in the Hague Judgment Convention.This paper consists of three parts: an introduction,a body and a conclusion.The first chapter introduces the system of indirect jurisdiction in the Hague Judgments Convention.Starting from the process of establishing the Hague Judgments Convention,the article outlines the bases and the exclusive basis for recognition and enforcement in the Hague Judgments Convention.On this basis,the article reviews the system of indirect jurisdiction in the Hague Judgment Convention.The Hague Judgments Convention provides a framework for the recognition and enforcement in all Contracting States,with a typological breakdown of indirect jurisdiction.The large number and scope of the indirect jurisdiction base reduces the possibility of duplicative litigation on the same facts in two or more countries,which improves legal predictability,and thus increases the practical effectiveness of these judgments.However,the small number of countries have signed the convention and the Hague Judgment Convention is ultimately a product of compromise among countries.In some sensitive areas,the convention has adopted an evasive attitude,so the convention still has some shortcomings.The second Chapter provides a holistic analysis of the current status of China’s indirect jurisdiction system.In terms of the current state of legislation,China’s domestic legislation currently provides for the conditions for China only in the Civil Procedure Law and its judicial interpretations.The requirements of the Civil Procedure Law states that a judicial agreement or a precedent of the principle of reciprocity must exist between China and another country,which does not violate China’s laws,national sovereignty,security,and the public interest of society.On the other hand,bilateral judicial agreements mostly contain provisions for indirect jurisdiction.In terms of judicial practice,there are many cases of recognition and enforcement of foreign judgments in our judicial practice.However,most of them are marital cases,and the number of non-marital cases is only 26.There are fewer reviews of indirect jurisdiction in the judgments.Matrimonial cases show direct citation of legal articles without specific interpretation.The non-matrimonial cases showed a direct avoidance of the review of indirect jurisdiction.The third chapter analyzes the problems of China’s indirect jurisdiction system.At present,China only stipulates the conditions for the recognition and enforcement in China in the Civil Procedure Law and its judicial interpretation,without mentioning indirect jurisdiction.It can even be said that indirect jurisdiction is not a condition to be considered for the recognition and enforcement in China,so these provisions have obvious defects and shortcomings.Article 12 of the Provisions on Recognition of Divorce Judgments of Foreign Courts provides for the examination of indirect jurisdiction,though.However,no clear basis for indirect jurisdiction is formulated.And the scope of application of the provision only includes divorce judgments,which is not universal.Indirect jurisdiction in bilateral agreements is inconsistent with exclusive jurisdiction.To a certain extent,this will make the litigation more difficult for the parties and also affect the judges’ trial on the recognition and enforcement.The bilateral judicial agreements that China has signed with 13 countries set clear rules of indirect jurisdiction,the number is relatively small and the content is roughly the same.In the judicial status quo,judges usually avoid the review of indirect jurisdiction,and the review of indirect jurisdiction is flawed.The fourth chapter presents the exploration of China’s indirect jurisdiction regime in the context of the Hague Judgment Convention.It mainly starts from two aspects:domestic legislation and bilateral judicial agreements.In terms of domestic legislation,the basis for reviewing indirect jurisdiction should be established.This can protect China’s judicial sovereignty and judicial security,safeguard the procedural justice of justice as well as the legitimate rights and interests of the parties.After establishing the basis of reviewing indirect jurisdiction,it is necessary to clarify the standard of reviewing indirect jurisdiction.The legal standard of the requested country should be chosen.In terms of bilateral judicial agreements,exclusive jurisdiction should be included in the indirect jurisdiction clause,but it should not be limited to exclusive jurisdiction.The expression of indirect jurisdiction should be used flexibly according to the actual social,cultural and judicial situation of the two countries.Article 5 of the Hague Judgment Convention provides a detailed basis for the review of indirect jurisdiction,which can be used as a reference for our domestic legislation and bilateral judicial agreements.