The Limitation And Change Of The Judicial Control Mode Of The Principle Of Reciprocity In China

Legal control includes two ways: legislative control and judicial control.In the fields of criminal law,economic law and administrative law,legislative control and judicial control are involved.Legislative control refers to the specific and detailed provisions on the object of control at the legal level,and judges have less discretion in the trial practice.Judicial control means that at the judicial level,the judge controls and decides the object of control through discretion,while at the legal level,there are not too many provisions or only provisions of principle.In the field of the recognition and enforcement of judgments,including the application of the principle of reciprocity,judicial control mode is adopted in China,that is,courts in judicial practice decide to interpret and apply the principle of reciprocity,and there are no detailed specific legal provisions to guide or to be based on the legislation.Although the judicial control of the principle of reciprocity may be beneficial to the realization of case justice,the limitations of the judicial control mode itself,such as the subjective process of the decision,the uncertainty of the result of the decision and the lack of universal significance of the case,make the disadvantages of the judicial control mode of the principle of reciprocity appear,which are specifically reflected in the current situation of the rigid and chaotic judicial application of the principle of reciprocity.The principle of reciprocity is conservatively interpreted by the judiciary as reciprocity in fact,and the court decides whether to recognize and enforce the foreign judgment involved solely on the basis of reciprocity in fact.The application of the principle of reciprocity in different courts is not consistent,which results in contradictory judgment results.The individual cases of recognition and enforcement of foreign judgments based on reciprocity of facts by courts are limited and hardly have universal impact and significance;the application of reciprocity in fact takes safeguarding national interests as the first priority and may affect the protection and relief of the private rights of the parties concerned.The reason is that China is not a country of precedent law and written law is the main basis of judicial adjudication.The existing law on the principle of reciprocity makes the court conservative discretion in judicial practice and narrow interpretation and application of the principle of reciprocity.The system of request and report from the lower court to the higher court affects the trial practice.The lower court completely complies with the rigid and conservative position of the higher court on the application of the principle of reciprocity.The judges are confined to the fixed reasoning process,follow the reasoning wording in the reply of the Supreme People’s Court and often fail to clarify the content of the reasoning part of the judgment documents based on specific cases.In view of this,the judicial control mode of the reciprocity principle should be changed.The connotation of the reciprocity principle should be clarified through judicial interpretation,such as the factors that are considered in the recognition and enforcement of foreign judgments,the identification standard of reciprocity relations,etc.,which indicates the position of applying the reciprocity principle.Between China and countries along the Belt and Road,the spirit and consensus of presumptive reciprocity should be implemented through binding legal documents,supported by specific supporting measures.Giving full play to the role of the guiding case system,the Supreme People’s Court shall list the cases of flexible application of the principle of reciprocity as guiding cases;the principle of reciprocity should be applied and interpreted on a case-by-case basis,for example,the recognition and enforcement of judgments made by national courts that recognize and enforce Chinese judgments in advance,and the application of presumptive reciprocity to judgments from countries along the Belt and Road;the recognition and enforcement of the judgment of a country which has no practice or has all practice refusing to recognize and enforce Chinese judgments,depends on the attitude and position of the court of that country towards Chinese judgments.