Study On The Severability Of Recognition And Enforcement Of Foreign Civil And Commercial Judgments

In today’s global integration under the big background,between various countries for civil and commercial cases circulation has important economic value and value of social justice,individual differences in national judicial system result in civil and commercial judgment outside recognition and enforcement face serious legal obstacles.It hinders the in-depth exchanges and cooperation of international civil and commercial affairs.In order to solve the contradiction between the recognition and enforcement of judgments to some extent,the way of partial recognition and enforcement of foreign civil and commercial judgments arises at the historic moment.which is divided into six parts:The first part is the introduction.This part introduces the background and value orientation of recognizing and enforcing the separability system of foreign civil and commercial judgments.The theoretical support of recognition and enforcement of foreign judgments mainly includes the theory of international comity,the theory of acquired rights,the theory of debt,and the theory of reciprocity.At present,the research on the divisibility of recognition and enforcement judgment at home and abroad mainly focuses on the divisibility of punitive damages cases.In the case of our country at present about the part of the recognition and enforcement of foreign judgments is almost blank research field.The second part aims to sort out and clarify the meanings of the key concepts of"foreign","civil and commercial","judgment","recognition and enforcement",and "severability",and sort out the legitimacy of the recognition and enforcement of the divisibility of foreign judgments,that is,the restrictions on public policy.The change of the criteria for identifying reciprocal relationships;The transfer of national interest to private interest under judicial cooperation.The third part reviews and summarizes the status quo of international and domestic legislation of typical countries that recognize and enforce the separability of foreign civil and commercial judgments.Many international treaties have recognized the divisibility of judgment.According to the subject of different,divided into the parties to take the initiative to apply for the division and the court according to the authority of the division of two types.At the same time,the domestic laws of many countries.including Britain,the United States.Russia,Switzerland,Australia.Canada.Belarus.India.South Africa,have also established the separable system of judgment recognition and enforcement,but it is mostly applicable to the judgment involving punitive damages.The fourth part mainly makes a comparative study on the judicial practice of recognizing and enforcing the separability of foreign civil and commercial judgments in typical countries Through comparative study,it is found that the judicial practice of recognizing and enforcing the divisibility of foreign civil and commercial judgments in typical countries has the following common points.For example,the judicial practice of divisibility judgments can be divided into judgments involving punitive damages,judgments involving uncertain amounts of money and judgments involving lawyers’fees.The most frequent one is the recognition and execution of the judgment involving punitive damages,which can be divided into the mode of full recognition and execution,the mode of full denial and execution,and the mode of partial recognition and execution.The fifth part analyzes the existing legal obstacles to the recognition and enforcement of the separability of foreign civil and commercial judgments.The fundamental reason why it is difficult to separate recognition and enforcement of judgments is sovereignty.The conflict between formal review and substantive review,the recognition of punitive damages,the different definitions of principled clauses and other factors all reflect the importance of a country to sovereignty and emphasize the independence of sovereignty.The sixth part is based on the current situation of China’s legislation and judicature,and analyzes the main problems existing in the recognition and enforcement of foreign civil and commercial judgments in China,such as imperfect legislation,too rigid judicial practice,the lack of multilateral treaties resulting in a closed legal environment.In view of the above problems,the perfect approaches include breaking away from the "Civil Procedure Law",making a separate law and judicial interpretation;Unifying judicial standards and establishing a reporting system;Actively acceding to the Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments.