我国判决承认与执行中互惠原则实施的困境与出路

Dilemma and Solution in China’s Application of Principle of Reciprocity in Recognition and Enforcement of Judgment

我国对互惠原则的适用坚持＂事实互惠＂立场,加大了互惠关系认定的难度,不仅无助于推动判决自由流动目标的实现,也减损了当事人私人利益的保护。为化解互惠原则对判决的承认与执行造成的障碍,当前域外对该原则的适用和解释呈现出宽松化的趋势。这既有利于摈弃＂事实互惠＂所蕴含的国家之间对抗和报复思维,也便于维系各国民商事交流的良性发展。作为条约缺位下判决承认与执行的依据,互惠原则既有助于避免对外国司法制度进行评价,也有利于强化本国当事人订立争议解决条款的议价能力,故该原则应予保留而不应废弃。基于对互惠原则宽松化解释之要求,在互惠关系之证明标准上,一国法院曾拒绝承认与执行外国判决的事实并不具有决定意义。在互惠关系之证明责任上,应由被请求人承担。在互惠原则的适用范围上,应将身份和婚姻家庭领域的非金钱判决排除在外。在互惠与礼让的关系上,礼让应是互惠的前提。对互惠原则采取宽松化解释,对全球经贸的整合、国际民商事秩序的稳定,以及对当事人民商事利益的保障,均具有重大的实践意义。

China＇s adherence to de facto reciprocity in the application of the principle of reciprocity has increased difficulty of judging the existence of reciprocal relationship,which not only hinders the free movement of the judgments,but also detracts from the protection of private interests of the parties. In order to resolve the obstacles caused by the principle of reciprocity in the recognition and enforcement of judgments,the current application and interpretation of the principle have shown a trend of liberalization. The trend is conducive to abandon confrontation and retaliation between countries in the recognition and enforcement of judgments,and helps to maintain the sound development of civil and commercial exchanges among countries. As the basis of recognition and enforcement of judgments in absence of treaty,the principle of reciprocity not only helps a country to avoid evaluation of foreign judicial system,but also conducive to strengthening their parties＇ bargaining power in negotiating of dispute settlement clause. The principle should be preserved rather than be abandoned. Under requirement of liberal interpretation on the principle of reciprocity,the fact that a court has refused to recognize and enforce a foreign judgment is not decisive in the proof of the existence of reciprocal relationship,the burden of proof in relation to the existence of reciprocal relationship shall be taken by the requested party,and non-pecuniary judgments arising from the area of identity of natural persons as well as marriage and family issues should be excluded in the application of the principle of reciprocity,and comity should be a precondition of reciprocity in the relation between reciprocity and comity. It is of great practical significance to adopt a liberal interpretation of the principle of reciprocity for the integration of the global economy and the stability of the international civil and commercial order,as well as the protection of commercial interests of the parties.