Problems And Solutions To The Application Of Reciprocity Principle

The recognition and enforcement of foreign judgments is the final destination of international civil proceedings.Recognition and enforcement of foreign judgments is based primarily on international conventions and the principle of reciprocity,and different countries may recognize and enforce foreign judgments on the basis of the principle of reciprocity if they do not join international conventions or enter into bilateral mutual legal assistance treaties.As the principle of recognition and enforcement of foreign judgments,the principle of reciprocity has three paradigms in the legal system of various countries in the world: legal reciprocity,factual reciprocity and presumptive reciprocity.The strict degree of the three criteria is different.In the judicial practice of our country,the method of fact reciprocity is basically established.However,there are many problems in the judicial practice of applying the principle of reciprocity in Chinese courts,such as strict standards when determining reciprocity,unclear limits of exceptions to reciprocity,vague burden of proof,ignoring existing precedents and even retaliatory phenomena.If the problems are not solved,they may lead to the difficulty of the circulation of international civil judgments in the judicial practice of our country,and even damage the friendly relations between our country and the judicial cooperation of the commercial and commercial countries.The reasons for these problems,firstly,are the defects of the principle of reciprocity itself.Second,there are some problems in the regulation and application of the principle of reciprocity in China’s legislation and judicial status.Specifically,in legislation,the relevant legal provisions of the principle of reciprocity in China are too principled,lack of specific applicable standards of the principle of reciprocity,and their legislative objectives are not clear.It is not based on the purpose of making the circulation of international civil and commercial judgments more convenient.In judicial practice,it is not clear who bears the burden of proof of reciprocity when the courts of our country adopt the standard of factual reciprocity to determine whether there is a reciprocal relationship with other countries.And in the recognition of reciprocity and recognition of the implementation of our judgment,open thinking also needs to be improved.Therefore,as for these problems,our country needs to reconstruct the legislative and judicial path on the basis of the existing.In legislation,we should firstly systematize the legislation in this field,and the more appropriate way is to make the recognition and enforcement of foreign judgments a separate chapter in the special provisions of foreign civil proceedings in the Civil Procedure Law.Secondly,the legislature should clarify that the legislative goal of reciprocity is to prevent the interests of the litigants from being harmed,not simply to aegis the judicial sovereignty,so as to clarify the specific criteria of reciprocity,and to introduce the application of legal reciprocity,rather than simply to take factual reciprocity as the criterion.And the court should clarify which party bears the burden of proof as to whether there is a reciprocal relationship and clarify and appropriately expand the scope of exceptions to reciprocity.In the administration of justice,first of all,we should improve the recognition of reciprocity standards in practice,change the standard of reciprocity based on different circumstances of individual cases,and define the standard through guiding cases.Secondly,we should pay attention to the application of the trial mechanism,set up a reporting system and establish a reciprocal memorandum,strengthen the reasoning of the judgment documents,pay attention to the training of the judges’ foreign business ability,and finally adhere to the friendly position of strengthening international cooperation.