论禁诉令的谦抑适用

On the Restrained Application of Anti-Suit Injunctions

近年来,我国法院在数起重大涉外案件中签发了禁诉令,这成为我国涉外法治推进中构建“回应型司法”的重要举措。然而,我国禁诉令的适用超越了该机制应有的谦抑性,已引致与其他国家之间的管辖权冲突及司法对抗。基于此,我国应在因循谦抑性理念之上厘定禁诉令的合理功能,引入严苛的禁诉令实体要件体系并在逻辑上确立禁诉令适用的平衡机制。具体来说,我国禁诉令的适用应存在明确的法律基础,在禁诉令要件体系的构建中综合考虑适格管辖权、存在平行诉讼以及滥诉行为等要素,并借助反向适用逻辑、效力屏障、礼让原则等平衡手段,秉持最低限度的禁诉令适用原则,构建“对内有益,对外有理”的我国禁诉令机制。

In recent years,Chinese courts have issued anti-suit injunctions in several major foreign-related cases,becoming an important measure in promoting a“responsive judiciary”within China's foreign-related legal framework.However,the application of anti-suit injunctions in China has exceeded the inherent restraint of this mechanism,leading to jurisdictional conflicts and judicial confrontations with other countries.In response,China should delineate the basic functions of anti-suit injunctions based on the principle of restraint,introduce a stringent substantive requirement system for these injunctions,and logically establish a balanced mechanism for their application.Specifically,the application of anti-suit injunctions in China should have a clear legal foundation.The construction of the requirement system for anti-suit injunctions should comprehensively consider factors such as appropriate jurisdiction,the existence of parallel litigation,and abusive litigation behavior.Additionally,balancing measures like reverse application logic,effectiveness barriers,and the principle of comity should be employed.Adhering to the principle of minimal application of anti-suit injunctions,China should develop an anti-suit injunction mechanism that is beneficial domestically and reasonable internationally.