外国法院判决承认与执行中互惠的认定标准

The Criteria for Determining Reciprocity in Recognition and Enforcement of Foreign Judgments

互惠作为促进国家间民商事判决承认与执行的一种合作依据,目前仍被多数国家所采用。司法实践中,主要存在事实互惠、法律互惠、推定互惠及通过外交途径认定的互惠等不同的互惠类型。大陆法系的多数国家在实践中选择了法律互惠的认定标准,或者兼采不同类型的互惠认定标准。我国司法实践中适用的是较为严格的事实互惠,并存在相似案件中互惠认定标准不一致的现象。在"一带一路"建设中,我国应考虑兼采法律互惠或推定互惠的认定标准,基于不同国家的个案情况细化互惠的认定标准,同时提升我国互惠认定标准的国际兼容性。

As a basis for promoting cooperation among countries in recognition and enforcement of civil and commercial judgments, reciprocity has been adopted by most countries in their judicial practice. Based on the different criteria that are adopted by different countries for determining reciprocity,the application of reciprocity presents various types, which are factual reciprocity, presumed reciprocity, de jure reciprocity, and applying reciprocity through diplomatic channels. Based on the research of the application of reciprocity in civil law countries, most countries choose de jure reciprocity in judicial practice or adopt different standards for determining reciprocity. In China, the factual reciprocity adopted by Chinese courts is strict and the results of applying reciprocity are inconsistent in similar cases. With the implementation of The Belt and Road Initiative, China should adopt the criteria of de jure reciprocity and presumed reciprocity in judicial practice. Furthermore, considering the different situations of each case, China should further refine the standards for determining reciprocity in its judicial practice and improve the international compatibility of the standards for determining reciprocity.