我國承認與執行外國判決中適用互惠原則的實證研究

Empirical Study on Application of the Principle of Reciprocity for Recognition and Enforcement of Foreign Judgments in China

隨著《承認與執行外國民商事判決公約》談判完成，互惠原則作為我國承認與執行外國判決的關鍵依據應當被再度檢視，友好開放的司法態度和對判決流通的支持應作為其內核。通過我國適用互惠原則承認與執行外國判決的二十起案件可知，我國法院并不認為外國法院對我國判決的認可構成互惠關系的保證，同時在查明外國法院承認我國判決的先例時存在疏漏。原因主要在于我國對事實互惠兼實存互惠標準的固守，且法院難于或怠于查明互惠先例。要改善我國互惠原則的實踐現狀，應由法院來證明互惠關系并進行說理，同時轉向推定互惠而非法律互惠的適用，因為后者存在自由裁量的風險，在我國實踐中恐無法取得理想效果。

"After the adoption of Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters,the principle of reciprocity as the key basis of recognition and enforcement of foreign judgments in China should be reexamined,with an inherent spirit towards a friendly and open attitude to justice,as well as an encouragement to the circulation of judgments.From the 20 cases applying the principle of reciprocity on recognition and enforcement of foreign judgments in China,we can find that our courts do not think that reciprocity is the inevitable result even if foreign courts have recognized the judgments of China,and our courts have omissions in finding out the precedents when foreign courts recognized our judgments.The reasons are mainly that our courts insist on the standard of factual reciprocity and actual existing reciprocity,and the courts have difficulty or are negligent in finding out reciprocal precedents.To improve the current situation,the courts should prove and argue for the existence of reciprocal relationship while recognizing reciprocity.Meanwhile,presumptive reciprocity could be used as a transient mode,instead of legal reciprocity,as the latter has the risk of discretion and may not get ideal effects in our practice."