On The Reciprocity In The Recognition And Enforcement Of Foreign Judgments

Reciprocity is regarded as an important principle of international law, also known as the principle of reciprocity, is the important embodiment of sovereign equality principle. Its basic meaning is refers to, if a country claim the right to the other countries, they have to receive the specification of constraints. In the field of judgment recognition and enforcement of a foreign court, reciprocity the basis and was known as an important condition. Its basic meaning involves two main aspects: first, refused to acknowledge and execute foreign countries court decisions, its also refused to acknowledge the country’s court; Second, their acknowledgement and enforcement of foreign court judgments and the conditions of foreign acknowledgement and enforcement of domestic court judgment conditions must be equal. Most countries in the application of the principles of reciprocity is not implemented on a fixed pattern, under normal circumstances, reciprocity is divided into the following kinds:(1) the fact that reciprocity and the law of reciprocity; (2) mutual benefit in both form and essence reciprocity; (3) overall reciprocity and separable reciprocity; (4) the factual presumption of mutual benefit and reciprocity. Because of a variety of form of reciprocity, bring many unknown factors to the principle of reciprocity, so about the pros and cons of reciprocity battle has not been stopped.Although reciprocity has many questions, but most countries in the world still retained in the domestic legislation of the requirement of the principle of mutual benefit. Because each country’s political economic and cultural development level is not the same, whether to insist on the principle of mutual benefit for each country has its own views, on domestic legislation is also each are not identical. The current legislation about reciprocity there are three main kinds, is divided into totally reciprocity, the principle of mutual benefit and reciprocity of incomplete. And an international treaty on reciprocity includes bilateral international conventions, regional international conventions and global international convention.At present China’s laws and regulations regarding the reciprocity mainly has the civil procedure law of the People’s Republic of China, the law of the People’s Republic of China on enterprise bankruptcy law and other judicial explanation. Because our country on recognition and enforcement of foreign court divorce judgment is not affected by the reciprocity, therefore, our country executes is the way the reciprocity of incomplete legislation. By some typical cases of the recognition and enforcement of foreign court decision in our country can be seen that our country has always been a claims are "treaty" priority, so has been actively followed the development of the treaty of mutual benefit, and the related work. Through the "five sway case trial", the principle of mutual benefit in our country have a clear interpretation, that is the recognition and enforcement of foreign court judgments in accordance with the principle of reciprocity is a fact of mutual benefit.Reciprocity, although several times in the recognition and enforcement of foreign court have trapped, but that does not surface it can not adapt to The Times. Apply the principle of mutual benefit in our country at present in the judicial practice, there are many deficiencies, such as there is no specific provision in the legislation of mutually beneficial relationship proof and who will be responsible for the standard, law of reciprocity set too simple, and so on. Along with the further opening up of China’s foreign policy, foreign exchange gradually thorough, from our country economic and trade disputes more and more, if still stubbornly stick to the facts reciprocity, then will leave a lot of problems for trial. Although the industry is put forward to cancel the requirement of the principle of reciprocity strong unceasingly, but for our country, in the judicial reform abolished the requirements of the mutually beneficial relationship is difficult to complete. Because the Chinese government has consistently adhered to the independence of the judicature and the relationship of mutual benefit is the independence of the judicature in the recognition and execution of the concrete performance of foreign court judgments, and, like "the system of reservation of public order", relationship of mutual benefit is the last line of defence of China’s judiciary foreign-related cases to ensure, in terms of the present China, reciprocity principle still has its existence space, but in the concrete operating level to adopt a more flexible measures to solve the problem of recognition and decision in different countries.