“一带一路”战略下互惠原则在承认和执行外国法院判决中的适用现状、困境与变革

The Application of the Principle of Reciprocity by China's Courts under the Belt and Road Initiative: Judicial Practices·Problems·Improvements

国家间法院判决的自由流通是"一带一路"战略顺利实施的重要法律保障。司法实践表明,狭隘的"事实互惠"无疑将会给中国和尚未与中国缔结司法协助协定的"一带一路"沿线国家的国际民商事交易活动带来较大法律风险。最高人民法院遂提出针对沿线国家实施"法律互惠",以提供确定性的法律环境。然而,中国关于互惠原则的法律规定还存在立法目标模糊、证明责任承担不明确、审查过于严格、互惠例外范围较狭窄的问题。基于此,中国需要明确立法目标,确立划分国家利益和私人利益的标准;确定由法院承担互惠关系的证明责任;实行个案审查,将拒绝承认和执行外国法院的判决限定在类似案件;将互惠例外范围扩展至包含外国公民的权利能力和行为能力、以及身份人身权和亲属关系的认定或解除。

The free movement of judgments among different countries guarantees the implementation of the Belt and Road Initiative. Judicial practices indicate that strict principle of reciprocity applied by Chinese courts,which requires the proof of facts that foreign courts have recognized or enforced China’s court judgments before,will bring great legal risks to the international trades among China and other countries along the land and maritime Silk Road which have not signed or joined any treaties about the recognition and enforcement of judicial judgments. In this case,the Supreme People’s court in its judicial interpretation suggests that looser requirements will be made for those countries,which will accept the proof of the possibility of recognition and enforcement of China’s judgments in their laws,so as to provide safe and predictable legal environment. However,there are still many problems about Chinese regulations of the principle of reciprocity,such as the ambiguity of its legislative aim,the lack of regulations about the burden of proof,the strict scrutiny test and the narrow range of exception. To tackle these problems,China shall clarify the legislative goal,that is,promoting the recognition and enforcement of foreign judgments and accurately weigh the state interests and private interests in foreign judgments,define the burden proof of the courts,decide the existence of the reciprocity by case-bycase approach,and expand the range of exception to the capacity for civil rights and capacity for civil conduct of foreigners,personality-identity right and right to relatives etc..