The "Hague Judgment Convention" On The Severability Of Judgments And China’s Considerations

The “Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”(Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters,hereinafter referred to as the “Hague Convention on Judgments” or Convention)passed at the Hague Conference on Private International Law in 2019 It is the first international instrument in the world to comprehensively establish uniform rules for the international circulation of civil and commercial judgments.The Convention systematically specifies the scope and conditions for the recognition and enforcement of foreign civil and commercial judgments,and stipulates in Article 9 the issue of the severability of judgments.This article states that if foreign court judgments are severable under the Convention,then Part of the content of the judgment can be separately recognized and enforced.The severability clause of the judgment reflects the flexible legislative spirit of the Convention,and eases the divergence of interests among members of the contracting states,and further promotes the free circulation of foreign-related civil and commercial judgments around the world.In addition to the introduction and conclusion,this article is divided into four parts:The first part is the theoretical analysis of the divisibility of the judgment.The meaning and characteristics of the severability of the judgment can be understood from the severability provisions in the international treaty.The division is selective for the parties,and the division is not mandatory as the court’s "obligation".Judgment severability is developed from the traditional "segmentation" theory,which has expanded from the initial legal application field to the field of judgment recognition and enforcement system,showing a trend of merging with the judgment recognition and enforcement system.Although the application of the "segmentation" method has certain limitations,the reasonable application of this method can promote fair results in cases under special circumstances,and is conducive to the interests and requirements of all parties involved in international civil and commercial relations.The "segmentation" method is derived from the theory of government interest analysis,problem-by-issue analysis,vested rights theory and debt theory.These theories are combined with the judgment recognition and enforcement system to analyze and further summarize the theoretical basis for judgments to be divisible.This part lays the foundation for the discussion and research of the full text.The second part is the general provisions of the Convention on the recognition and enforcement of judgments.First of all,only if the judgment meets the basic premise of obtaining recognition and enforcement,it is possible to realize the divisional recognition and enforcement of the judgment.Therefore,the judgment must meet the requirements of international civil society that is definite and effective,conforms to the scope of application of the Convention,and has appropriate jurisdiction.Commercial judgment.Secondly,the basis for the division of judgments of foreign courts by contracting parties is mainly based on the provisions of the Convention,and the division of judgments needs to be recognized and enforced in accordance with relevant provisions of the Convention.The specific division is a procedural issue,and the division is executed in accordance with the domestic law of the requested country.Finally,the Convention establishes the principle of non-substantive review,and the circumstances under which recognition and enforcement can be denied must comply with the provisions of the Convention.These restrictions on the severable recognition and enforcement of judgments are based on considerations of coordination flexibility and certainty,while also preventing them.The adverse effects caused by excessive flexibility.The third part is the type of severable judgment in the convention.This part first sorts out the circumstances of severable judgments in the Convention,summarizes the provisions of the Convention on different types of severable judgments,and divides these judgments into punitive damages judgments,judgments on "pre-requisite issues",judgments involving disputes over litigation costs,and Judgments that are uncertain about the amount of money,and discuss how to divide them in light of the nature and characteristics of such divisible judgments.Secondly,in the practice of recognition and enforcement of punitive damages judgments abroad,the requested country decides whether to divide based on public order,the identification of different types of judgments and other reasons,and partially recognizes and enforces the judgment.Finally,it puts forward the viewpoint of how to use the segmentation method to segment the separable judgment,so as to clarify the standard of segmentation.The fourth part is China’s consideration of the severability provisions of the Convention.First of all,my country’s basic position on the convention should be clarified.The convention has no essential conflict with my country,and it is feasible to join the convention.my country’s current legal system lacks provisions on the divisibility of judgments,and there are no cases of division of execution in the process of recognition and enforcement of foreign-related judgments in judicial practice.my country should improve the legal basis for the division of severable judgments,regulate the criteria for the division of different types of judgments and the reasons for division,and use public order to recognize and enforce foreign court judgments with caution.Regarding the attitude towards the severability provisions of the Convention,one can accept the relevant provisions of the severability of judgments and make partial reservations.The compensatory part of the punitive damages judgment shall be recognized and enforced,and the punitive part beyond the recognition of our country shall not be recognized and enforced;the attorney’s fees in disputes involving litigation costs shall be divided,and this part shall not be recognized and enforced;In the judgment of fixed amount,after the part with uncertain amount is divided and excluded,the remaining part shall be recognized and enforced.