论拒绝承认与执行外国法院判决的情势——2019年《海牙判决公约》相关制度与规则探讨

On Circumstances of Refusal of Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters:A Study on Relevant Systems and Rules in the HCCH 2019 Judgments Convention

外国法院民商事判决的承认与执行是各国涉外司法实践的重要领域,在哪些情形中外国法院民商事判决可以或应该被拒绝承认和执行是非常重要的问题。2019年的《承认与执行外国民商事判决公约》(下文简称《海牙判决公约》)是迄今为止国际社会在外国法院民商事判决的承认与执行方面最为重要的国际立法之一,在国际社会确定了相关问题的最新且最为全面的制度与规则。《海牙判决公约》确立了被请求国法院可以拒绝承认与执行外国民商事法院判决的5种情势,分别为被告未获适当通知、通过欺诈获取判决、违反公共政策、违反选择法院协议或信托文件中的法院选择以及外国法院判决和平行诉讼判决不一致。总体而言,《海牙判决公约》所确定的拒绝承认与执行外国法院民商事判决的系统规则和制度呈现出若干特征。首先,传统的拒绝承认与执行外国法院判决的基础和理由得到保留,且获得新的发展。其次,当事人意思自治原则得到尊重和维护。最后,在涉及平行诉讼问题上,《海牙判决公约》表现出应有的谦抑,给予符合一定条件的相冲突的他国或被请求国法院已决判决以及被申请国在先的未决平行诉讼以优先权,并赋予被请求国法院可以拒绝承认与执行原审法院判决的权力,从而妥善解决跨国诉讼中的平行诉讼问题。

Recognition and enforcement of judgments in civil or commercial matters of foreign courts is an important field of private international law and foreign-related judicial practice in most countries.Its main contents include which kinds of civil or commercial judgments of foreign courts,under what conditions,and through what procedures,may be recognized and enforced by the requested courts.Domestic private international law scholars have conducted extensive research on these issues.In fact,under which circumstances the judgments in civil or commercial matters of foreign courts may or shall not be recognized and enforced is also an important issue that needs to be studied.Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters,adopted in 2019,(hereinafter referred to as the HCCH 2019 Judgments Convention)is one of the most important international unified legislations by international community in relation to the recognition and enforcement of judgments in civil or commercial matters of foreign courts.It has also established the latest and most comprehensive system and rules for domestic courts to refuse recognizing and enforcing judgments in civil or commercial matters of foreign courts in the international community.It includes 5 circumstances in which the court of the requested country can or must refuse to recognize and enforce the judgments in civil or commercial matters of the foreign courts:(1)the defendant has not been properly notified;(2)the judgment obtained by fraud;(3)violation of public policy;(4)breach of the choice of court agreements or the choice of court in the trust document;and(5)the judgment of foreign courts is inconsistent with the judgment of a parallel litigation.The following characteristics are embodied in the rules and system on refusing to recognize and enforce judgments in civil or commercial matters of foreign courts determined by the HCCH 2019 Judgments Convention.Firstly,the traditional grounds for refusing recognizing and enforcing foreign judgments in civil and commercial matters have been accepted.Meanwhile they have also been developed.Secondly,the principle of party autonomy has been respected and maintained.Finally,in regards to the parallel litigations the HCCH 2019 Judgments Convention takes a modest approach by giving privileges to the court of the requested country made an inconsistent judgment in a dispute between the same parties.