The Plight And Outlet:The Research About Application Of Reciprocity In The Recognition And Enforcement Of Foreign Civil Judgments

According to the civil procedural law of PRC, in the absence of bilateral and multilateral treaties,the principle of reciprocity is a necessary condition of the recognition and enforcement of civil judgments made by foreign court. The reciprocity,established for the purpose of promoting international communication and achieving win-win among countries, is becoming a principle that hinders the recognition and enforcement of foreign civil judgment because of the rigid application of reciprocity. so, is the reciprocity really beneficial for the recognition and enforcement of foreign civil judgments? and is it really necessary to treat reciprocity as a important condition of recognition and enforcement of foreign civil judgment? If so, how should we apply the reciprocity correctly to promote the "circulation of judgments" among countries?This article tries to solve the problems described above by analyzing both theory and practice. Combining the legislative status with judicial practice in China, this article also discusses the issue in several aspects, such as the debate about whether the reciprocity should be abolished or not, the examination patterns and the current developing trend of the reciprocity, and puts forward some suggestions about how to improve the application of reciprocity in China.This article consists of five chapters except for the introduction section:Chapter one takes the case that Japanese applied Chinese court for recognizing and enforcing Japanese judgment as pointcut, discussing the legislative status and judicial practice of recognition and enforcement foreign civil judgment in China,and then refers that there exists dilemma of recognition and enforcement foreign civil judgment because of the rigid understand and application to the reciprocity.Chapter two introduces the debate among academia about the necessity of existence of reciprocity and the choice of other countries whether legislating the reciprocity in domestic law or not, referring that it is still necessary to retain the principle of reciprocity in recognition and enforcement of foreign civil judgment under the environment of globalization.Chapter three compares the advantages and disadvantages of three examination patterns of reciprocity, referring that it is the obvious disadvantage of the pattern China chose that brings obstacles to the judicial practice of reciprocity in China and it is time to change our mind about the purpose of reciprocity and improve the examination pattern.Chapter four discusses a trend that with the disadvantages in the application of reciprocity more and more obvious, many countries began to change traditional model of reciprocity and put a positive attitude towards the application of reciprocity in the recognition and enforcement of foreign civil judgment. Also, this chapter introduces several ways about changing traditional model of reciprocity in world, and analyzes its significance and necessity.Chapter five,as the core chapter of this article, concentrates on the improvement of reciprocity in China, putting forward suggestions that we should take the promotion of international cooperation as the purpose of reciprocity, change the examination pattern China insists for a long time and perfect the legislation about reciprocity as well as accelerate the conclude of relevant treaties.