Study On "Recognition And Enforcement Of Foreign Judgments" Of Sino-Foreign Treaties On Judicial Assistance In Civil And Commercial Matters

Although the recognition and enforcement of foreign judgments is the last part of foreign-related litigation,it is the key to resolving economic and trade disputes,and also the primary consideration for foreign investors deciding whether to invest in another country.Sino-Foreign Treaties on Judicial Assistance in Civil and Commercial Matters are one of the legal basis for the recognition and enforcement of foreign judgments in China.As of January 2021,there are a total of 34 bilateral treaties that are entered into force including judgment recognition and enforcement.Due to the small number of countries signing treaties,the legal basis for most cases is "reciprocity".However,the nature of low certainty and retaliatory of "reciprocity" has led to a low case recognition rate.A more flexible "reciprocity" standard is beneficial,but it can only serve as a moderating effect during the transition period.It is not a good strategy.In fact,with the great strides of the"Belt and Road" strategic cooperation and the further integration of the economies of countries,binding the mutually beneficial relationship in the form of a bilateral treaty is an effective measure to solve the dilemma of judicial cooperation between two countries.At present,34 bilateral treaties have insufficient provisions in the "recognition and enforcement of foreign judgments" section.It has led to a low rate of recognition of judgments and the inability to effectively protect the property rights of the parties.How to help solve these problems,fill gaps in existing treaties and improve future treaty provisions,so as to help Chinese courts to clearly examine the basis of foreign judgments,and to enhance the certainty and predictability of Chinese justice are the research goals of this paper.By carefully studying and judging the relevant clauses and typical cases in the"recognition and enforcement of judgments" of bilateral treaties,this paper puts forward the bilateral treaty solutions for the recognition and enforcement of foreign judgments in China.This article is divided into three parts:the preamble,the main text,and the conclusion.The main text mainly discusses the following contents:The first chapter explores the meaning of "judgments",Chinese legal system that recognizes foreign judgments,and the relationship between the bilateral treaties and the Chinese relevant laws and the international treaties hoping to clarify ideas for future courts to review extraterritorial judgments and avoid the problem of invoking confusion in legal basisThe second chapter introduces the history of bilateral treaties,and the current status of the 34 bilateral treaties.By analyzing the reasons why bilateral treaties have been ignored by our academic circles and why they need to be taken seriously,it is proved that the bilateral treaties are irreplaceable even if the signatories do not include the major trading countries,such as the United States and Japan.The third chapter analyzes the core content of the 34 treaties,including rejection clauses,document clauses and partial implementation clauses.Through a comparative study of the content of the clauses,it is pointed out that different treaties have different expressions for the same clause,and the understanding of certain elements of various countries is not consistent.And it points out that there are legal loopholes in the existing bilateral treaties,such as unclear expression and unclear definition of the meaning of the elements,which leads to the uncertainty of our judicial conclusions.The forth chapter researches some typical cases of a bilateral treaty as the basis of the review.Through case search,it was pointed out that Chinese treaty cases have a small number of cases and a low recognition rate.After a case study,this paper sorts out the understanding of the relevant clauses of the people’s courts,and pointed out the problems that existed in the examination of foreign judgments by the local intermediate people’s courts.The fifth chapter summarizes the deficiencies found in the previous article analysis and case studies,and puts forward suggestions for future improvements.By drawing lessons from the relevant provisions of other countries’ domestic laws and international conventions and reflecting on the deficiencies of court review,we will further improve the provisions of the existing bilateral treaties,improve Chinese judicial system,and put forward Chinese propositions to lay a solid foundation for the formulation of future Sino-Foreign Treaties on Judicial Assistance in Civil and Commercial Matters.