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Shen Hongyu: A Study on Several Issues in Recognition and Enforcement of Foreign Civil and Commercial Judgments

From: Journal of Law Application    Shen Hongyu     Updated: 2018-05-17


[Abstract] Three difficulties in the practice of recognition and enforcement system for foreign civil and commercial judgments, i.e., indirect jurisdiction review, due process and the definition of the principle of reciprocity, are subject to in-depth study herein. And corresponding thoughts and suggestions are proposed for the applicable law standard of indirect jurisdiction, matters to be noticed to ensure the proper notification and statement rights of the parties involved, connotation of the principle of reciprocity and development of times, etc. from the perspective of comparative law, in combination with the judicial conditions in China.


[Keywords] recognition and enforcement,indirect jurisdiction,legal summons,principle of reciprocity


The cross-border recognition and enforcement of civil and commercial judgments has always been an important issue in private international law. With the development of China's open economy to a high level and the deepening of the " Belt and Road" initiative, the importance of recognition and enforcement of foreign civil and commercial judgments has become increasingly prominent. This paper studies in depth the issues of indirect jurisdiction review, due process guarantee and reciprocity principle that are more prominent and need to be clarified in judicial practice, and puts forward corresponding suggestions, hoping to jointly promote the perfection of our country's "civil procedure law" on the recognition and enforcement system of foreign civil and commercial judgments, and to promote the predictability and unity of the People’s Court's standards for handling cases of application for recognition and enforcement of foreign civil and commercial judgments.


I. Current Legislation on Recognition and Enforcement System of Foreign Civil and Commercial Judgment in China


(a) Comparison of legislative examples of different countries for review mode


Regarding the review mode of civil and commercial judgments in the foreign court, it can be divided into three types according to each country’s legislation example: substantive review, formal review and eclectic review.


1. Substantive review


The mode of substantial review holds that when recognizing foreign civil and commercial judgments, domestic courts can review the fact-finding and legal application of the foreign civil and commercial judgments. If they think it is wrong, they can refuse to recognize it. France's legislation before 1964 and Luxembourg's legislation before 1957 used this model, but few countries have adopted it at present.


2. Formal review


The formal review mode holds that when recognizing foreign civil and commercial judgments, domestic courts only review whether the foreign civil and commercial judgments meet the recognition requirements stipulated by domestic laws. As for whether the foreign civil and commercial judgments recognize the facts and the applicable laws correctly, they are not subject to review. The model is represented by German and Japanese legislation.


3. Eclectic review


The eclectic review mode refers to adopting formal review in principle, but in a few exceptional cases, it also reserves the substantive review authority for foreign civil and commercial judgments. For example, Italian legislation adopts formal review in principle, but allows Italian courts to conduct substantive examination of absent foreign civil and commercial judgments. Another example is when Greek legislation stipulates that one of the parties to a foreign civil and commercial judgment is a Greek national, the Greek court has substantial power to examine the foreign civil and commercial judgment.


(b) The provisions of China's Civil Procedure Law


Article 281 of our country's Civil Procedure Law stipulates, “If a legally effective judgment or ruling made by a foreign court needs to be recognized and executed by a court of the People’s Republic of China, the parties concerned may directly apply to the Intermediate People’s Court with jurisdiction of the People’s Republic of China for recognition and execution, or the foreign court may request the People’s Court to recognize and execute it in accordance with the provisions of international treaties concluded or acceded to by the country and the People’s Republic of China, or in accordance with the principle of reciprocity.” Article 282 stipulates that “For any legally effective judgment and ruling made by a foreign court under application or request for recognition and enforcement, the People’s Court shall determine its effectiveness after being reviewed in accordance with the international treaty signed or participated in by China or the principle of reciprocity to be considered without violation of the basic principle of Chinese law or national sovereignty, security and social public interest; the enforcement order shall be issued if enforcement is needed, and such enforcement shall be in line with relevant regulations of the law. No recognition and enforcement will be given if violating the basic principle of Chinese law or national sovereignty, security and social public interest. “ That is, the People’s Court has three basic conditions for the recognition and enforcement of foreign judgments in civil and commercial matters: first, China has concluded or participated in international treaties on the recognition and enforcement of judgments in civil and commercial matters with foreign countries, or there is a reciprocal relationship; Secondly, foreign judgments in civil and commercial matters have taken legal effect, i.e. the judgment is confirmed; Thirdly, the recognition and enforcement of the foreign civil and commercial judgments does not violate the basic principles of the law or the sovereignty, security and public interests of the state.


According to the above regulations, the Civil Procedure Law only stipulates in principle the recognition and enforcement system of foreign civil and commercial judgments. It is not clear what kind of review mode to adopt, and depends specifically on the provisions of international treaties and the definition of the principle of reciprocity. However, judging from the provisions of the bilateral treaties on judicial assistance in civil and commercial matters signed by our country, the conditions for recognition and enforcement mainly include: (1) the judgment of the foreign court has entered into force or is enforceable; (2) the foreign court making the judgment has jurisdiction over the case; (3) the litigation rights of the losing party are protected;(4) there are no conflicting judgments; (5) the judgment of the foreign court was not obtained through fraud, and so on. In judicial practice, the conditions stipulated in Article 12 of the Regulations of Supreme People's Court on Chinese Citizens’ Application for Recognition of Divorce Judgment Procedures in Foreign Courts also include the above conditions. Therefore, it is not difficult to see that our country's legislation and judicial practice adopt a formalist review mode for foreign civil and commercial judgments, that is, the People’s Court judges according to the recognition requirements stipulated by law, and does not substantially review whether the judgment of the court of the requesting country determines the facts and whether the law is wrong or not. Among them, foreign courts have proper jurisdiction and due process protection, which is a crucial element of legal review. The issue of how to understand and apply the principle of reciprocity has always been the most controversial and there has been no final conclusion for a long time regarding the non-treaty relationship between the sentencing-making country and our country. Therefore, separate them and try to describe them.


II. Indirect jurisdiction


Proper jurisdiction is a prerequisite for a country's courts to carry out litigation activities and make effective judgments. When handling cases of application for recognition and enforcement of judgments of foreign courts, domestic courts examine whether foreign courts have jurisdiction. This is not only a procedural rule for judging whether foreign courts have jurisdiction or not, but also a prerequisite for recognition and enforcement of judgments of foreign courts.


(a) Comparison of foreign legislation examples


Both legislation and judicial practice in various countries treat indirect jurisdiction as the primary issue of recognition and enforcement of judgments. For example, Article 328 of the German Code of Civil Procedure stipulates that according to German law, if a foreign court does not have jurisdiction, it shall not recognize the judgment of the foreign court. Article 25 of the Swiss Private International Law stipulates that foreign courts are recognized in Switzerland if they have jurisdiction over the judicial or administrative organs of the judging country, if the judgment is no longer subject to review by ordinary relief procedures or if it is a final judgment, and if they do not have the grounds listed in Article 27 for refusing recognition, and Article 26 specifies four situations in which foreign courts are recognized as having jurisdiction. Article 4 of the United Kingdom Foreign Judgments (Reciprocal Enforcement) Act and Article 30 of the Civil Jurisdiction and Adjudication Act both stipulate that the courts of the original jurisdiction have international jurisdiction and are necessary conditions for the recognition and enforcement of judgments. Article 4 of the Uniform Foreign Money-Judgments Recognition Act adopted by most States in the United States stipulates that foreign courts may refuse to recognize and enforce the defendant if he does not have personal jurisdiction or jurisdiction over the subject matter of the lawsuit.


Our country's Civil Procedure Law does not stipulate the indirect jurisdiction. It is a great defect and deficiency. [1] however, since Article 281 of the Civil Procedure Law stipulates that People’s Courts can only recognize and execute foreign judgments in civil and commercial matters based on treaties or the principle of reciprocity, and international treaties have provisions on issues of indirect jurisdiction, if there are international treaties, the provisions of international treaties can be directly applied. For countries that have not established treaty relations with China regarding the recognition and enforcement of judgments, as the general rule requires that they have indirect jurisdiction over the recognition and enforcement of foreign judgments, the People’s Court is also obliged to examine whether the court of the country that made the judgment has appropriate jurisdiction over the case in accordance with the principle of reciprocity.


(2) Thoughts on law applicability standard of indirect jurisdiction


In practice, the most controversial issue is the legal application standard for judging indirect jurisdiction, i.e. which law or standard is applicable to judge whether the foreign court has jurisdiction over the case. In the bilateral civil and commercial judicial assistance treaties signed with different countries, our country has adopted different judgment standards, which are roughly divided into three modes: first, according to the laws of the requested country, that is, the standards of domestic laws. For example, the mutual judicial assistance agreements concluded between our country and Argentina, Bulgaria, Poland, France, Cuba, Mongolia, Romania and other countries all stipulate that, according to the law of the requested party, if the court making the judgment does not have jurisdiction, it constitutes one of the conditions for refusing recognition and enforcement. Second, it is only required that the provisions of the exclusive jurisdiction of the law of the requested state shall not be violated. For example, China has concluded mutual judicial assistance agreements with Kazakhstan, Russia, Kyrgyzstan, Tajikistan, Ukraine and other countries. The third is to specify the specific criteria for the courts of the requesting state to have indirect jurisdiction by way of enumeration, and at the same time to stipulate that the exclusive jurisdiction of the requested state shall not be violated. For example, the judicial assistance agreements concluded between China and Laos, Cyprus, Tunisia, Spain, Italy, Vietnam and other countries have concluded that the connecting points for the courts of the country where the judgment was made to have jurisdiction over the case mainly include: 1. At the time of bringing the lawsuit, the defendant has residence or residence in the country; 2. The defendant expressly accepted the jurisdiction of the court of that country or the entity's defense in writing and did not raise any objection to jurisdiction; 3. In the case of a contract, the place where the contract is signed or performed is in that country. 4. In infringement cases, the place of infringement or result is in that country.


I believe that the indirect jurisdiction examination standard established for the purpose of judgment recognition should conform to the policy objective of the domestic country when recognizing and executing foreign judgments, that is, respecting international comity, safeguarding the legitimate rights and interests of the parties concerned and safeguarding the legal order of the domestic country. It should be different from the policy objective of emphasizing the free circulation of judgments between regions. Therefore, it should be judged directly by the law of the country of recognition and execution, that is, the requested country. Judging from international treaties and the legislative provisions of various countries, judging the indirect jurisdiction of foreign courts according to the laws of the country where the judgment was made is also a rare phenomenon. The mainstream model either adopts Germany's “mirror image rule” that is, it is determined according to the laws of the requested country, or adopts the enumeration standard of jurisdiction connection points of the common law system. On the other hand, the courts of the country where the judgment was made must have examined the issue of jurisdiction in accordance with the laws of the country before the judgment was made. The courts of the requested country will review jurisdiction with the laws of the country where the judgment was made at the recognition and enforcement stage, which is not only of little significance, but also adds to the cumbersome procedures identified by foreign laws. Since the provisions of the civil procedure law of China on jurisdiction can be considered as the norm determined by legislators after fully measuring the interests of jurisdiction, the jurisdiction provisions of the Civil Procedure Law of China should be applied by analogy to judge whether foreign courts have jurisdiction or not before the relevant legislation is passed to clarify the standards of indirect jurisdiction. For example, the domicile of the defendant, the place where the contract is signed or executed, the place of infringement, whether the place where the subject matter of the lawsuit is located is in the foreign country, etc. In addition, according to the relevant provisions of our country's civil procedure law, we should pay attention to the following key points in the examination of indirect jurisdiction:


First, the foreign civil and commercial judgment shall not violate our country's exclusive jurisdiction. Exclusive jurisdiction refers to a country's assertion that its courts have exclusive and exclusive jurisdiction over certain foreign-related civil and commercial cases and does not recognize other countries' jurisdiction over these cases. Article 266 of China's Civil Procedure Law stipulates, “ the People’s Court of the People’s Republic of China shall have jurisdiction over lawsuits brought over disputes arising from the performance of Sino-foreign joint ventures, Sino-foreign cooperative ventures and Sino-foreign cooperative exploration and exploitation of natural resources contracts in the People’s Republic of China.“ Article 33 of the Civil Procedure Law provides exclusive jurisdiction over lawsuits brought in connection with real estate disputes, lawsuits brought in connection with disputes arising from port operations, and lawsuits brought in connection with disputes over inheritance. If a foreign court exercises jurisdiction over a dispute in a case that belongs to the exclusive jurisdiction of a Chinese court, it shall determine that it does not have jurisdiction.


Second, the jurisdiction of foreign courts agreed by the parties involved must comply with the law.  The Civil Procedure Law of China stipulates two forms of agreement jurisdiction: one is the express agreement jurisdiction stipulated in Article 34, which stipulates that the parties to a contract or other property rights and interests must have actual contact with the dispute in choosing a court by written agreement; The second is the implied jurisdiction stipulated in Article 127, that is, the parties did not raise any objection to jurisdiction and responded to the lawsuit. In addition, Article 31 of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law (hereinafter referred to as Interpretation of the Civil Procedure Law) stipulates, “If the operator uses the standard terms to enter into a jurisdiction agreement with the consumer and fails to draw the consumer's attention in a reasonable way, the People’s Court shall support the consumer's assertion that the jurisdiction agreement is invalid. “ Therefore, the foreign court shall be deemed to have no indirect jurisdiction when the parties lack the capacity to conclude a jurisdiction agreement and the jurisdiction agreement is deemed invalid or revoked due to violation of the laws and regulations of our country.


Thirdly, there are no parallel proceedings settled for the same dispute in China. Article 533, paragraph 1, of the Interpretation of the Civil Procedure Law stipulates, “ in cases where the courts of the People’s Republic of China and foreign courts both have jurisdiction, if one party brings a lawsuit to a foreign court and the other party brings a lawsuit to a court of the People’s Republic of China, the People’s Court may accept the case. After the decision, the application or the parties to a foreign court requesting the People’s Court to recognize and enforce the judgment or ruling rendered by a foreign court for the case shall not be granted; Except as otherwise provided in international treaties concluded or acceded to by both parties.” Accordingly, if our country's courts have already made judgments on the same dispute or have approved and executed judgments made by other countries and regional courts on the same dispute, then the foreign judgments requested to be recognized and executed shall be deemed not to have indirect jurisdiction.


Fourth, the parties involved fail to reach a written arbitration agreement on the same dispute. According to the principle that effective arbitration agreements established in China's Civil Procedure Law and Arbitration Law excludes the jurisdiction of the court, if the parties reach a written arbitration agreement on the dispute, they shall not bring a lawsuit to the court. Therefore, in judging the indirect jurisdiction of foreign courts, attention should also be paid to examining whether the dispute is bound by the arbitration clause.


Finally, it should be pointed out that Article 12, paragraph 2, of the Provisions of the Supreme People’s Court on the Procedural Issues Concerning Application by Chinese Citizens for Recognition of Divorce Judgments Foreign Courts stipulates that " the foreign court that made the judgment has no jurisdiction over the case" as one of the reasons for refusing to recognize and execute the judgment. Although it has not clearly determined the indirect jurisdiction of the foreign court according to which law, the policy objective of recognizing divorce judgments is to minimize conflicts between different countries and maintain the stability of marriage relations. Therefore, it should be properly judged according to the laws of the country where the judgment was made.


III. Due process guarantee


Due process means that the judgments of foreign courts are obtained through fair and effective trial procedures and fully protect the litigation rights of both parties. Due process guarantees include the right of the parties to receive appropriate notification of their participation in the proceedings and the right to state their case.


(a) Foreign legislative examples


All conventions in the field of recognition and enforcement of judgments, without exception, stipulate due process guarantees as key clauses. For example, Article 9 of the Convention on Choice of Court Agreements of Hague not only stipulates that the document instituting proceedings or the equivalent document does not inform the defendant in a certain way within sufficient time to enable him to arrange his defense in the grounds of refusal of recognition or enforcement. In cases where the manner in which the requested state notifies the defendant does not conform to the basic principle of service of the relevant documents of the requested state; Moreover, it also stipulates that the specific procedure of judgment does not conform to the basic principle of procedural fairness of the requested state, which is a violation of the public policy of the requested state. Article 27 of the Lugano Convention on the Jurisdiction of Civil and Commercial Cases and Enforcement of Judgments stipulates that a judgment in absentia shall not be recognized if the defendant is unable to have sufficient time to arrange his defense due to his failure to receive the relevant prosecution documents in a timely manner. The requirement of due process is also commonly seen in the legislation of various countries to recognize and execute foreign judgments. For example, Article 118 of Japanese Civil Procedure Law stipulates that one of the conditions for the validity of a foreign court judgment is that the defendant who lost the lawsuit has accepted the necessary subpoena or service of an order (excluding public service and other similar service), or has not accepted subpoena or service but has responded to the lawsuit. The proceedings shall not violate Japan's public order and customs. Article 328 of German Code of Civil Procedure stipulates that the grounds for refusing to recognize the judgment include "The German party who is the defendant did not receive a subpoena or other order from the court and therefore did not participate in the hearing of the case.” Article 5 of the Reciprocal Enforcement of Foreign Judgment Act of Singapore stipulates that the defendant's referee debtor's failure to appear in court in the proceedings and his failure to accept service make it impossible to state his opinion in the proceedings ( even if the service is due to the law department of the original referee country), which constitutes a violation of due process.


(b) Provisions of legal and judicial interpretation in China


China's bilateral agreements on judicial assistance in civil and commercial matters and domestic legislation have made corresponding provisions on due process protection. For example, Article 18 of the Treaty on Judicial Assistance in Civil and Commercial Matters between the People's Republic of China and The Republic of Argentina stipulates that according to the law of the party that made the ruling, the party who lost the case has not been legally summoned or has not been properly represented, which constitutes the reason for refusing to recognize the judgment. Another example is the Agreement on Judicial Assistance in Civil and Criminal Matters between the People's Republic of China and The Republic of Poland, which stipulates in Article 20 that the parties concerned are deprived of the possibility of defense, or deprived of their due representation in the absence of legal capacity. Article 543 of the Interpretation of the Civil Procedure Law stipulates, “If the judgment or ruling of a foreign court is a judgment or ruling in absentia, the applicant shall also submit the supporting documents legally summoned by the foreign court, except where the judgment or ruling has clearly stated this. Any international treaty concluded or acceded to by the People’s Republic of China that provides for the submission of documents shall be handled in accordance with the provisions.” In the Provision of the Supreme People’s Court on Issues Concerning the Acceptance of Applications for Recognition of Divorce Judgment Cases in Foreign Courts by the People’s Court, lists "the judgment was made in the absence of the defendant and without legal summons “as a case of non-recognition, and requires Chinese citizens to apply for recognition of divorce judgments made by foreign courts in their absence, and to submit to the People’s Court at the same time relevant supporting documents that the foreign court that made the judgment has legally summoned him to appear in court.


(c) Issues worthy of concern in the review of the due process elements


In judicial practice, when the People’s Court examines whether foreign civil and commercial judgments protect the due process rights of the parties concerned, the following issues need to be clarified:


First, the legal standard for judging legal service. Since the bilateral mutual judicial assistance agreements signed by our country basically stipulate whether or not it constitutes a legal subpoena according to the law of the country where the judgment is made, the judgment of foreign courts that have no treaty relationship with our country should also judge whether or not it is legally served according to the law of the country where the judgment is made when applying Article 543 of the Interpretation of the Civil Procedure Law, but should not be lower than the minimum standard of legal subpoena required by the law of our country. For example, item 7 of Article 267 of our country's Civil Procedure Law stipulates that service can be confirmed by fax, email, etc. If the laws of the country where the judgment is made allow fax and e-mail service and at the same time adopt the principle of sending letters, it will conflict with the stipulation of China's Civil Procedure Law that adopts the principle of arrival. If the party concerned does not receive the notice of action and fails to participate in the action, even if it is legally served in accordance with the law of the country where the judgment was made, it shall still be deemed that the requirements for legal summons have not been met at this time.


Second, service to our country shall not violate the mandatory provisions of our country's Civil Procedure Law on service. According to the provisions of Article 277 of the Civil Procedure Law of our country, requesting and providing judicial assistance should be carried out according to treaties or diplomatic channels. Foreign embassies and consulates stationed in our country may serve documents on citizens of that country, but they may not violate the laws of our country and may not take coercive measures. Except for the aforesaid circumstances, no foreign organ or individual may serve documents within the territory of our country without the permission of our country's competent authority. When China joined the Hague Service Convention, it also explicitly opposed mail service. Therefore, the service of foreign courts to our country shall not violate the above provisions. For example, in Reply of the Supreme People's Court to zprommashimpeks National Corporation's Request for Recognition and Enforcement of the Judgment of Tashkent Economic Court of the Republic of Uzbekistan [2], regarding the application of the Higher People’s Court of Zhejiang province on the recognition and enforcement of the civil judgment made by the Tashkent economic court of the Republic of Uzbekistan, the Supreme People’s Court held that one of the reasons for the non-recognition and enforcement stipulated in Article 21, paragraph 3, of the China-Ukrainian Judicial Assistance Treaty was that "according to the law of the contracting party that made the judgment, the party who did not appear in court did not appear before the court was not legally summoned." However, according to the provisions of the Civil Procedure Law of our country, if there is a mutual judicial assistance treaty relationship between parties serving judicial documents in the territory of our country, it should be carried out in accordance with the ways stipulated in the treaty; in the absence of such treaties, they shall be effected through diplomatic channels; our country's laws clearly oppose foreign courts to send judicial documents directly to parties located in our country's territory by mail or other means. The way Uzbekistan's courts send court summons to Wenzhou Jinshi Entertainment Apparatus Manufacturing Co., Ltd. by post does not conform to the way stipulated in the treaty and undermines our country's judicial sovereignty. According to the provisions of Article 21, paragraph 5, of Public Policies in the Treaty on Criminal Judicial Assistance between the People's Republic of China and the Republic of Ukraine, the judgment in this case should not be recognized and implemented.


Third, the issue of whether legal summons should include public notices. Judging from the provisions of the extraterritorial legislation, some countries and regions have indeed excluded the default judgment served by public notices from the scope of recognition. The most representative one is the provision of Article 118 of Japanese Civil Procedure Law. The judicial practice in Taiwan region of our country also adopts the same view. In TSZ No. 1924 civil judgment in 2002 made by “the Supreme Judicial Court” in Taiwan and ZSZ No. 80 civil judgment in 2002 made by “High Court” in Taiwan,, the court both believed that according to the legislative reasons and intentions of Article 4, paragraph 1, of the Enforcement Law and Article 402, paragraph 2, of the Civil Procedure Law, the provisions of the law " have served me in the country" are not applicable to public service or supplementary service according to the literal interpretation. [3] However, Article 267 of our country's Civil Procedure Law stipulates eight service methods. When other service methods are exhausted and cannot be served, public notice service can be used to prepare service. Therefore, the author tends to believe that if the laws of the country (region) where the judgment is made allow the service of public notices and the applicable conditions are basically similar to those of our country, the legality of the service of public notices should be recognized.


Fourth, regarding the translation of litigation documents, i.e. whether the foreign court should attach the corresponding translation according to the nationality of the losing defendant. The author believes that if the service is through mutual judicial assistance, for example, according to the bilateral mutual judicial assistance treaty or Hague Service Convention, if the translation requirements stipulated in the treaty are violated, the legal service will not take effect. However, if a foreign court serves on the territory of the foreign country and the foreign law does not stipulate the translation that should be attached, the absence of the translation should still be considered as legal service in principle, but a certain amount of translation time should be reserved for the parties concerned in order to fully protect their right to express their opinions.


Finally, even if the foreign court that issued the judgment has defects in the subpoena procedure of the parties, the parties have already appeared in court to answer the lawsuit, that is, they already have the actual opportunity to reply fully. Under such circumstances, they can no longer refuse to recognize and execute the foreign judgment on the grounds that they have not been legally summoned. That is to say, both the absence of the losing party and the absence of legal summons must be met, and the losing party is deemed to have no guarantee of its litigation rights.


Iv. Understanding and Application of Principle of Reciprocity


(a) comparison of legislation in different countries


The principle of reciprocity is developed on the basis of Dutch jurist Huber's “International Comity” and emphasizes the equivalence of interests or obligations between beneficiary countries and preference-giving countries, i.e. the basic rule of maintaining the balance of treatment by giving each other equal rights or obligations. Therefore, the original intention of stipulating the principle of reciprocity is to urge countries to cooperate with each other in the recognition and enforcement of judgments so as to protect the legitimate rights and interests of the parties to a greater extent.


Examining the positions of various countries on reciprocity, we can summarize them into the following four categories: first, some countries' legislation explicitly regards reciprocity as a necessary condition for recognition and enforcement of judgments of foreign courts, that is, only when foreign courts recognize and execute judgments of domestic courts under the same circumstances can they recognize and enforce judgments of foreign courts. For example, Article 118 of Japanese Civil Procedure Law stipulates that recognition of foreign court decisions must be guaranteed by reciprocity. Austria, Spain, Italy, Venezuela, Mexico, Peru and other countries have also adopted this system. [4] The second is to put forward different requirements in different matters, different procedures or different fields. For example, Article 328 of the German Code of Civil Procedure requires reciprocity as a condition for recognition of foreign court decisions, but no reciprocity is required for non-property rights claims or decisions regarding parent-child relationships. Again, as stipulated in Chapter 11 of No. 13 Act on Hungarian International Private Law, reciprocity is only a condition for implementation and not for recognition. Thirdly, some countries do not make reciprocity a condition, but they need to carry out substantial review of foreign court decisions, such as Belgium, Bolivia, India, Greece, Haiti, Portugal, etc. Since this condition is already extremely harsh in order to examine the merits of the case, there is no need for reciprocity. [5] Fourth, some countries do not require the principle of reciprocity or gradually abandon the requirement of the principle of reciprocity. For example, the U.S. Supreme Court refused to recognize and enforce the French judgment on the grounds of non-existence of reciprocity in Hilton v. Guyot, but the Uniform Foreign Money-Judgments Recognition Act adopted by most States later no longer required reciprocity. [6] In the U.S. Federal Court, Central California District Court, recognizing and executing Hubei High Court's judgment on “Central California District Court of the Federal Court of the United States recognizing and enforcing judgment made by Hubei Higher People’s Court on Hubei Gezhouba Sanlian Industrial Co., Ltd., etc. charging American Robinson Helicopter Company, Inc. with infringement disputes” the court made it clear that the Uniform Foreign Money-Judgments Recognition Act does not stipulate that there must be a reciprocal relationship before foreign judgments can be executed. Judging from the application of the law, there is no evidence to show that there is such a requirement. [7] It can be seen that the principle of reciprocity differs greatly in the legislation and practice of various countries.


(b) The evolution of the principle of reciprocity in China's judicial practice


Articles 281 and 282 of our country's Civil Procedure Law both stipulate the principle of reciprocity as a precondition for the recognition and enforcement of foreign court judgments, but the law does not clearly explain the principle of reciprocity. Therefore, there is a great controversy about how to understand and grasp the principle of reciprocity in judicial practice. In the Case on the Application of Gomi Akira (A Japanese Citizen) to Chinese Court for Recognition and Enforcement of Japanese Judicial Decision, the Supreme People’s Court issued a reply in June 1995 on whether the People’s Court of our country should recognize and enforce the judgment of Japanese court with creditor's rights and debts, [8] believing that China and Japan have not concluded or participated in international treaties that mutually recognize and implement the judgment and ruling of the court and have not established corresponding reciprocal relations. According to the provisions of the civil procedure law, the People’s Court should not recognize and enforce the judgment of the Japanese court. Afterwards, the judicial practice dealt with the Request for Instructions Re Application of DNT France Power Engine Co., Ltd. for Recognition and Enforcement of Australian Court Judgment with reference to the spirit of the reply. [9] Although judicial practice does not require reciprocity as a prerequisite for the recognition of divorce judgments of foreign courts, overall, our country takes a conservative factual reciprocity position on the principle of reciprocity. If there is no precedent for recognition and enforcement of court decisions of the other country in judicial practice between the two countries, it is determined that no corresponding reciprocity relationship has been established. This not only makes foreign civil and commercial judgments difficult to be recognized and enforced by our courts, but also easily leads to the phenomenon that foreign courts refuse to recognize our court judgments and a large number of cross-border parallel lawsuits on the grounds of reciprocity. For example, the Japanese court accepted the supreme court's reply in the Gomi Akira case in which the parties provided evidence in cases such as the Case of “Xia Shuqin's Application for Execution of the Judgment of the Nanjing Xuanwu District Court” and found that the mutual guarantee of judgment recognition between China and Japan was not satisfied and refused to recognize and execute the judgment of the Chinese court. [10] Therefore, under the background of the deepening of the Belt and Road Initiative, it is necessary to reasonably determine the applicable standards of the principle of reciprocity and to promote cooperation in the cross-border recognition and enforcement of judgments between countries.


On June 16, 2015, the Supreme People’s Court issued Several Opinions of the Supreme People’s Court on Providing Judicial Services and Safeguards for the Construction of the “Belt and Road” by People’s Courts, explicitly proposing to strengthen judicial assistance. Under the condition that some countries along the line have not yet concluded judicial assistance agreements with China, according to the intention of international judicial cooperation exchange and the commitment of the other country to give judicial mutual benefit to China, the court of our country can give judicial assistance to the other country's parties in advance. This shows the new trend of our country's judicial practice in advocating the adoption of positive and loose standards for the determination of mutual benefit relations.


On June 8, 2017, the 2nd China-ASEAN Justice Forum held in Nanning passed the Nanning Statement, which stipulated in item 7, “cross-border transactions and investments in the region need to be guaranteed by the mutual recognition and enforcement mechanisms of appropriate judgments of various countries. To the extent permitted by domestic laws, participating courts will interpret domestic laws in good faith, reduce unnecessary parallel lawsuits, and consider appropriate promotion of mutual recognition and enforcement of civil and commercial judgments in various countries. Countries that have not yet concluded international treaties on the recognition and enforcement of foreign civil and commercial judgments can presume that there is a reciprocal relationship with the other country if there is no precedent for the courts of the other country to refuse to recognize and execute their own civil and commercial judgments on the grounds of reciprocity in the judicial process of recognizing and executing the civil and commercial judgments of the other country, to the extent permitted by their domestic laws.” The consensus adopts the principle of presumption of reciprocity. As long as there is no evidence to the contrary that ASEAN member states have refused to recognize and implement the precedent of Chinese court judgment on the grounds of reciprocity, it can be presumed that there is a reciprocal relationship between the two countries. This is a major breakthrough in the practice of " real existence and mutual benefit" in the past judicial practice, that is, the practice of requiring the identification of laws or facts that foreign courts have recognized and implemented Chinese judgments. It has strongly promoted the new development of the principle of mutual benefit in China's judicial practice. [11] Nanjing Intermediate People’s Court and Wuhan Intermediate People’s Court recognized and executed commercial judgments of Singapore courts and us courts in late 2016 and June 2017 respectively, further enriching the judicial practice of the principle of reciprocity. [12]


(3) Reflections on Developing Principle of Reciprocity


It should be noted that although the international community has a tendency to cancel or restrict the application of reciprocity legislation, the requirements of our country's legislation on the principle of reciprocity have not changed, and some countries along the Belt and Road line refuse to recognize any foreign court judgment on the grounds of national sovereignty, and the time and conditions for our country's laws to abandon the requirement of reciprocity are not ripe either. [13] When formulating relevant legislation or judicial interpretations in the future, the aim should be to expand international judicial cooperation, enhance judicial comity, and actively promote reciprocal relations. The principle of reciprocity should be more pragmatic and reasonable, with flexible space defined, and the inherent incentive and support functions of the principle of reciprocity should be actively brought into play, so as to build a good atmosphere for mutual recognition and enforcement of civil and commercial judgments between countries. Therefore, the author puts forward the following suggestions:


One is to clearly establish legal reciprocity standards through legislation or judicial interpretation. That is, according to the law of the country where the judgment was made, the possibility of recognition and enforcement of the judgment of the court in our country was judged, thus confirming the existence of reciprocal relations and not requiring the existence of factual reciprocity between the two countries. At the same time, it should be noted that in the absence of an international treaty, the conditions for recognition and enforcement of foreign court decisions between the two countries are completely the same, which is also illogical and will greatly reduce the possibility of recognition of foreign court decisions. Therefore, it is suggested to adopt the  “theory of material equal conditions”,, that is, the two countries' laws have the same important conditions for the recognition and enforcement of foreign court judgments, that is, they meet the requirements of reciprocal relations. Or adopt the “theory of reverse presumption”, as long as there is no situation where our judgment cannot be executed or is difficult to be executed within the territory of the country where the judgment is made according to the law of the country where the judgment is made, it shall be deemed that there is a reciprocal relationship between the two parties. However, if the judgment-making country regards the existence of relevant treaties as a necessary condition for the recognition and enforcement of foreign court judgments, and China does not establish treaty relations with that country; Or the state making the judgment does not execute any foreign judgment; Or is it that the judgment-making country carries out strict substantive examination of the judgment of foreign courts. If the judgment of our country cannot or cannot be recognized and executed within the territory of the judgment-making country, it should be concluded that there is no reciprocal relationship between the two countries.


The second is to relax the forms and channels for establishing reciprocal relations. Taking the 1921 Reciprocal Enforcement of Commonwealth Judgments Act as an example, Britain adopted domestic legislation to grant reciprocal treatment in recognition and execution of judgments in other Commonwealth countries and applied convenient registration procedures. Subsequently, other common law countries including Singapore followed suit one after another. In order to apply the reciprocal relationship required by the registration procedure, some countries have established national lists through legislation, while Singapore is made by Singapore's administrative organ, the attorney general, and it can change or revoke the previous decision to have reciprocal relationship. This shows that the ways to establish reciprocal relations are very diverse. For the first time in Nanning Statement, our country has tried to establish the presumed reciprocal relationship with ASEAN countries under certain conditions by means of judicial consensus. Besides signing the mutual judicial assistance treaty in the future, we can also further broaden the ways to establish the reciprocal relationship, including making reciprocal commitments through diplomatic channels, and reaching judicial memorandums of understanding or consensus with our country on mutual recognition and execution of judgments, etc.


The third is to determine the application of the principle of reciprocity and its exceptions according to different categories of judgments. The Supreme People’s Court pointed out in the Provisions of the Supreme People’s Court on the Procedural Issues Concerning Application by Chinese Citizens for Recognition of Divorce Judgments Foreign Courts that for divorce judgments of foreign courts that have not concluded a mutual judicial assistance treaty with China, Chinese litigants can apply to Chinese courts for recognition and do not make it conditional on the existence of reciprocal relations between the foreign country and China, thus establishing an exception to the principle of reciprocity. In addition to the divorce judgment, for the confirmation and judgment concerning the civil rights and legal capacity of citizens and enterprise legal persons, as well as the non-appeal judgment concerning the adoption relationship and guardianship relationship, we can also consider clearly excluding the application of the principle of reciprocity through legislative or judicial interpretation, that is, adding the exception of the principle of reciprocity in the future. In addition, for some countries that only recognize or do not recognize specific types of judgments in our country, for example, those that only recognize money payment judgments or those that do not recognize judgments in absentia in our country, our country can also apply the principle of reciprocity and recognize or do not recognize specific types of judgments correspondingly.


The fourth is to clarify the burden of proof of the principle of reciprocity. Referring to Article 10 of the Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships, this Article defines the responsibility for ascertaining foreign laws applicable to foreign-related civil relations as the thinking of the court for ascertaining the responsibility. In principle, reciprocal relations should be ascertained by the People’s Court ex officio, but the People’s Court may require the parties concerned to provide foreign laws. Due to the continuous development of case law and the complexity of the determination of foreign judicial precedents, it is more appropriate to use the precedent of recognizing or not recognizing domestic court decisions as a comprehensive reference factor for determining reciprocal relations. For example, in the 2012 the Case of Israel Telaviv District Court Recognition of Russian Judgment, it believed that although there is a precedent for Russian courts to refuse to recognize Israel's judgment, the precedent is not decisive. According to the development of Russian case law, if Israel can provide reciprocal proof, the Israeli judgment is likely to be recognized and executed in Russia in the future. [14] Israel's practical judicial practice is worthy of our country's reference in determining the standard of proof of reciprocity.


To sum up, the system of recognizing and enforcing foreign civil and commercial judgments is not only a necessary basis to establish a fair, efficient, authoritative, open and inclusive international judicial profile for China, but also an important safeguard to protect the rights and interests of the parties involved and enhance international judicial cooperation. Therefore, the theoretical and practical circles shall research the problems including the above ones, judgment finality, public policy and the connection between the Convention on Choice of Court Agreements of Hague (once approved) and domestic laws in depth, and reach consensus as soon as possible to provide intellectual support and empirical evidence for the formulation of relevant legislative and judicial interpretation.


[1] Xuan Zengyi, Research on the Recognition and Enforcement of Judgments between Countries, China University of Political Science and Law Press, 2009, P257.


[2] Reply of Supreme People’s Court [2014] MSTZ No. 9 (March 6, 2014)


[3] Cited from Tang Minbao, Recognition of Foreign Civil Judgments, doctoral dissertation, Department of Law, National Chengchi University, March 29, 2010, P157..


[4] Xu Hong, International Judicial Assistance in Civil Matters, Wuhan University Press, 1996, P280


[5] Li Shuangyuan, Xie Shisong, International Civil Procedure: An Introduction, Wuhan University Press, 1990, P503.


[6] Wang Keyu, An Analysis of Due Process of Law Under the Perspective of Recognition and Enforcement of Foreign Judgment, Tribune of Political Science and Law, 2009, Issue 1.


[7] Ye Lu, et al., The First Case of Chinese Court Judgment Recognized and Enforced in the U.S., www.kingandwood.com, visited on November 30, 2017.


[8] Reply of Supreme People’s Court [1995] MTZ No. 17


[9] Letter of Reply on Request for Instructions Regarding the Application of DNT France Power Engine Co., Ltd. for Recognition and Enforcement of Australian Court Judgment of Supreme People’s Court ([2006] MSTZ No. 45).


[10] Feng Xi, A Study on the Recognition and Enforcement of Chinese Judgments Concerning Property Law Matters by Japanese Courts, Wuhan University International Law Review, 2017, Issue 3.


[11] Zhang Yongjian, New Trends in the Development of the Practice of the Principle of Reciprocity under the Background of “Belt and Road”, People’s Court Daily, June 20, 2017, V2.


[12] Civil Ruling Paper of Jiangsu Nanjing Intermediate People’s Court (2016) S01XWR No. 3, and Civil Ruling Paper of Hubei Wuhan Intermediate People’s Court (2015) EWHZSWCZ No. 00026


[13] Du Tao, Presumed Reciprocity Promoting the Litigation Dispute Settlement along the “Belt and Road”, People’s Court Daily, June 15, 2017, V2.


[14] “Israeli Court recognizes a Russian Judgment on the Basis of Reciprocity”, www.cisarbitration.com/2013/03/01/Israeli-Court-recognizes-a-Russian-Judgment-on-the-Basis-of-Reciprocity, visited on November 30, 2017.


 

*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.