A Study On The Principle Of Reciprocity In The Recognition And Enforcement Of Foreign Judgments

With the development of economic globalization,economic exchanges between countries around the world are becoming more and more frequent,and foreign judgments need to be recognized and enforced in other countries.According to the relevant provisions of our national law and its judicial interpretation,the recognition and enforcement of foreign judgments should first be based on bilateral or multilateral mutual legal assistance treaties.If there is no bilateral or multilateral mutual legal assistance treaty,the principle of reciprocity,The principle of reciprocity plays an important role in the field of recognition and enforcement of foreign judgments,and China currently mainly uses factual reciprocity as the legal basis for the recognition and enforcement of foreign judgments.However,the application of Factual reciprocity in China has gradually become rigid,and it is no longer suitable for China’s foreign-related civil and commercial affairs,which is mainly reflected in the following aspects:Chinese legislation does not clearly define the criteria for determining the principle of reciprocity.The scope of application of the principle of reciprocity in our country is too broad,The burden of proof on the principle of reciprocity is unclear;the results of the application of the principle of reciprocity vary among courts;the application of the principle of reciprocity not only makes it difficult for foreign judgments to be recognized and enforced in China,but also makes some countries refuse to recognize and enforce judgments made by our courts.Legislators should improve the principle of reciprocity in order to promote the free circulation of judgments and provide a stable legal environment for foreign-related civil and commercial affairs in China.Mainly proceed from the following points:First,the legal recognition of reciprocity as the main and the presumption of reciprocity as the supplementary recognition standard should be made clear in the legislation.If in accordance with the relevant laws and regulations of the other country on the recognition and enforcement of foreign judgments,the practice with third countries,and the needs of economic and trade cooperation between countries,it can be expected that domestic court judgments will be recognized or enforced in that country,then it can be determined that between the two countries.There is a reciprocal relationship.If according to the above conditions,it is still impossible to determine whether there is a mutually beneficial relationship between the two countries,it is presumed that there is a mutually beneficial relationship between the two countries.Secondly,the burden of proof of the principle of reciprocity should be clarified.If the legal reciprocity determination standard is adopted,the applicant should bear the burden of proof for the existence of the reciprocity relationship between the two countries.If the presumed reciprocity is used as the determination standard,the respondent should not have any relationship between the two countries.The reciprocal relationship bears the burden of proof to reasonably distribute the burden of proof between the parties.Then narrow the scope of application of the principle of reciprocity,and exclude non-property judgments on identity relationships and non-litigation disputes.Retaliation measures are applied with caution,and retaliation measures are calculated on a per-unit basis.Finally,a database on the recognition and enforcement of foreign judgments is set up.