On The Reshaping Of The Standard For Identifying Reciprocal Relationship In The Recognition And Enforcement Of Foreign Judgments In China

The principle of reciprocity is an important principle in the field of international law,and it is also an important basis for dealing with the recognition and enforcement of foreign judgments.It has a significant impact on the global circulation of foreign civil and commercial judgments.Recognition and enforcement of foreign judgments are facilitated between countries with reciprocal relations.Regarding the standard for examining whether there is a reciprocal relationship between the two countries,there is still no unified paradigm in the legal provisions and judicial practice of various countries,but there is a tendency to relax the identification of reciprocal relationship in order to achieve international justice cooperation in the field of recognition and enforcement of foreign judgments.Such friendly judicial cooperation and interaction will help save a country’s judicial resources,promote the circulation of judgments,and effectively resolve international civil and commercial disputes.It is also related to the stability and predictability of the application of law.Due to the difficulty of reaching relevant international treaties and the lack of multilateral and bilateral treaties concerning the recognition and enforcement of judgments in China,the scope of application of the treaty reciprocity standard is limited.In addition,China only provides general legal provisions on the application of reciprocity,and the rules on how to apply the de facto reciprocity standard are not detailed enough.Therefore,Chinese courts tend to be cautious and conservative in the judicial practice of the recognition and enforcement foreign judgments.To put it bluntly,the standards for identifying reciprocal relationships adopted by Chinese courts are too simplistic and have strict judicial inertia,which is not conducive to the circulation of judgments,the protection of the litigation interests of the parties and the enhancement of international judicial mutual trust.Since China first recognized the bankruptcy ruling of Germany’s Montabaur district court in 2013,China’s traditionally strict de facto reciprocity standards have begun to loosen.In recent years,the courts of Israel,Singapore and other countries have taken the lead in recognizing and enforcing the judgments of Chinese courts.China has also successively recognized civil and commercial judgments made by courts in the United States,Singapore,South Korea and other countries.In 2020,in the absence of a precedent for mutual recognition and enforcement of judgments between China and relevant foreign countries,nor the existence of relevant treaty obligations,the Supreme Court of New South Wales,Australia,and the High Court of the British Virgin Islands both recognized and enforced judgments made by Chinese courts for the first time.Under the new situation of increasingly frequent international civil and commercial exchanges,China is taking a more proactive attitude towards the recognition and enforcement of foreign judgments.The single and strict standard of factual reciprocity adopted by China has shown a lag,which is not only inconsistent with the orientation of the principle of reciprocity,but also cannot meet the actual needs of China’s international exchanges.It is necessary to re-examine and reshape the standard for identifying reciprocal relationships in the field of recognition and enforcement of foreign judgments.This paper proposes to broaden the scope of application of the treaty reciprocity standard,change the strict de facto reciprocity standard,refine its applicable rules,and adopt both legal reciprocity and presumptive reciprocity standards.This will help to regulate the judicial practice of identifying reciprocal relationships,thereby improving the predictability and certainty of identifying reciprocal relationships.It not only promotes the benign circulation of judgments,but also demonstrates China’s spirit of judicial friendship and cooperation.