[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.
(to be continued...)