Study On The Recognition And Enforcement Of Chinese Civil And Commercial Judgements In France

The recognition and enforcement of China’s civil and commercial judgments in France belong to the scope of judicial assistance in private international law,and decide whether courts decisions can be implemented.China has close economic and political exchanges and frequent personnel movements with France.However,France has not recognized and enforced a single Chinese civil and commercial judgment yet.Therefore,attention should be paid to the current French legal mechanism in recognizing and enforcing Chinese civil and commercial judgments.At present,Chinese civil and commercial judgments are recognized and enforced in France through the following legal paths:the "Agreement between the People’s Republic of China and the French Republic on Judicial Assistance in Civil and Commercial Matters" is the main basis.In the Agreement,article 23 stipulate that the procedure for recognition and enforcement is determined by French law.Accordingly,this article takes the Agreement as a perspective and analyses French specific provisions in question in non-EU countries.It discusses the reasons for France’s refusal to recognize and enforce China’s civil and commercial judgments,and puts forward corresponding suggestions.There are the main points of this article:First of all,this paper introduces the predicament of China’s civil and commercial judgments taking effect in France,to prove the significance of exploring the legal path of France’s recognition and enforcement of China’s civil and commercial judgments.Chapter 1 first defines the categories of civil and commercial judgments that China can apply for recognition and enforcement in France:"judgments" do not only refer to the court’s conclusion on the substantive issues of the case,and "civil and commercial matters" should also exclude the types of disputes that are exclusively under the jurisdiction of France.Then,this chapter introduces the French court hierarchy that accepts applications for recognition and enforcement of foreign civil and commercial judgments.In view of the complexity of the recognition and enforcement mechanism,this paper firstly expounds the practice of France’s recognition and enforcement of civil and commercial judgments in China through cases.This case is the only Chinese civil and commercial judgment that the French Supreme Court designated a appeal court to apply the Agreement.In the case,not all the parties are Chinese or French citizens.And because the case relates to the identity and ability of a natural person,it is the only type that needs to examine whether the court of first instance applies the applicable law directed by the French private international law rules.Therefore,this case help interpreting via case the scope of application of the Agreement and the applicable law concerning disputes over the identity and capacity of natural persons.Chapter 3 returns to the theoretical level.Articles 1,2,4,9,19 to 23 of the Agreement play a guiding role in the legal framework of recognition and enforcement.Article 23 of the Agreement stipulates that the procedures for the recognition and enforcement of China’s civil and commercial judgments in France shall comply with the provisions of French domestic law.The latter part of this chapter thus is able to conclude the review standards for recognition and enforcement of Chinese civil and commercial judgments established by French law and judicial precedents.Except for the prohibition of fraud in the original judgment,these review standards stipulated in French domestic law have been reflected in the Agreement.For the above clauses,the author briefly describes the ones that are easier to understand,and elaborate on the ones that are quite different from the provisions of Chinese laws:such as the indirect jurisdiction of Chinese courts,the finality of the original judgment,and the international public order in France.These three points are also special provisions for the recognition and enforcement of foreign civil and commercial judgments in addition to following the general civil procedure in France.Based on these basic requirements referred in Chapter 3,Chapter 4 analyzes the situation in which France refuses to recognize and enforce the original judgment when a Chinese judgment does not meet the above requirements:There are procedural flaws in the initial judgment,such as inappropriate procedures or legal evasion;French recognition and enforcement of China’s civil and commercial judgments will violate the principle of bis in idem under French law;Chinese judgments on the identity and capacity of natural persons are not applicable to French conflicts law;The judgment is inconsistent with the French international public order.These risks have challenged the applicant to prove that the procedure of China’s judgment conforms to the principles of fairness and justice,that the law is applied correctly,and even conforms to the French public policy concept.In order to meet these challenges,the last chapter puts forward suggestions to promote the recognition and enforcement of Chinese civil and commercial judgments in France.In terms of adapting to French law:First,the court of first instance should be chosen carefully.If it falls into the exclusive jurisdiction of a French court,or if the applicant knows that the defendant or the defendant’s property is in France,it is best to directly choose France as the place of jurisdiction.Once the applicant has filed a lawsuit in China and received a Chinese court judgment out of personal convenience,he should know the procedures and documents required to start an appplication;the second is to understand French civil procedure law.beside the competent court for the recognition and enforcement of foreign civil and commercial judgments,the preparation of documents and the appointment of defenders should also be known.These rules are concentrated in the French "Civil Code","Commercial Code","Civil Procedure Code"and other laws.In terms of improvements that should be made in China.First,the Agreement should be revised to prevent the court from excluding the application of the agreement when the parties are citizens of third countries other than Chinese and French citizens.At the same time,the agreement should make conditional amendments to the self-limitation of contractual jurisdiction established in China’s Civil Procedure Law,so as to avoid actively excluding the jurisdiction of international cases when Chinese courts have no actual connection with the dispute.The second is to make France aware of China’s actions in promoting the recognition and enforcement of foreign civil and commercial judgments,such as requiring Chinese Supreme Court and some higher courts to summarize and translate the recognized and enforced foreign civil and commercial judgments.The third is to strengthen the construction of foreign law identification platforms,to facilitate Chinese courts judge in accordance with the law,and to provide information for applicant to understand the procedures of recognition and enforcement,so as to increase the success rate of recognition and enforcement.