Research On The Defense Of Service Procedure In Recognition And Enforcement Of Foreign Judgments In China

The economic globalization has rapidly developed,meanwhile lots of foreign countries have joined the "One Belt And One Road",China has already increased transnational economic cooperation continuously with other countries.Meanwhile,the foreign-related civil and commercial disputes are also growing.In foreign-related disputes,if the judgment has been made by a state that losing party has no property for enforcement within the scope of sovereignty of the adjudicating state,the most important element to resolve disputes is the recognition and enforcement of foreign judgments system.In current foreign-related civil and commercial disputes,the recognition and enforcement of foreign judgments is an important issue.In China,the defense of service procedure is often adduced as the legal basis for refusing to recognize and enforce foreign judgments in the legislation and judicial practice.However,there is no provision of defense of service in Chinese legislation,which has led to the confusions of judicial practices.From the aspect of domestic law,China has not yet incorporated the defense system of service procedure into the Chinese Civil Procedure Law.The Supreme People’s Court firstly added the recognition and enforcement of foreign judgments into the Interpretation on the Application of the Civil Procedure Law of the People’s Republic of China.Bilateral judicial treaties which were signed by China and other countries has contained the defense of service procedure.Despite the expressions are crudely similar,there are also great many different points in application and understanding,in the judicial practices,these differences have led to improper application of the defense of service procedure.The Convention on Choice of Court Agreements had been signed by our country,and China has confirmed the final text of the Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments in 2019,they both have made clear and reasonable provisions on the defense of service procedure.Despite the defense of Service procedure was often mentioned in judicial practices,China is a country with statute laws,judges could not be in accordance with the domestic legislation to make the court in the judicial practices.Therefore,the principle of reciprocity and bilateral judicial assistance treaty becomes the only alternative.However,in the current situation,because of the disadvantages of the principle of reciprocity and the limitation of the number of bilateral judicial assistance treaties,few foreign judgments have successfully been recognized and enforced in Chinese judicial practices till now.Through comparative study of bilateral judicial assistance treaties,domestic laws and international conventions of countries.The formulation of the provisions of defense of service procedure has a similar trend,which mainly contains two aspects:one is in the lack of presence of legal subpoena to the parties in default judgment,the other one is that the parties can fully reply.The formulation of the defense of service procedure should focus on the service requirements,mainly including the object of service,the way of service and the quality of service,which should satisfy both the formal requirements and the essential requirements.The quality of service is a substantial requirement.In the case of default judgment,the key to service is to make the parties know the litigation process and have sufficient time to reply,rather than the way of service.At present,in Chinese legislation and judicial practices,the defense of service procedure system has not well equipped.Our country is a state that pursues legislation in the first place,improving our country’s domestic legislation is the prime mission.Since the provisions on the defense system of service procedure in the Convention on the Agreement of Choice of Court and the Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments are relatively complete and systematic,our country should take these two conventions as reference to improve our country’s domestic legislation.Secondly,the application and interpretation of the defense of service should be cohered in the bilateral judicial assistance treaties between China and foreign countries,in judicial practice,the application can be coordinated and unified.What’s more,China should increase the number of bilateral judicial assistance treaties because of the background of One Belt And One Road,which can effectively promote the recognition and enforcement of foreign judgments.Finally,although China has signed the Convention on the Agreement of Choice of Court,the ratification of the Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments is still actively advancing.If these two conventions are ratified and enter into force in China.Ratifying the convention will provide a stronger guarantee for the consummation of the defense system of service procedure in China.The establishment of the defense system of service procedure is an crucial guarantee in recognition and enforcement of foreign judgments,and it is the essential requisition for improving the recognition and enforcement system of foreign judgments.