論我國反外國制裁司法救濟機制之完善

On the Perfection of China's Judicial Remedy Mechanism for Anti-Foreign Sanctions

基於反制和救濟的功能定位，我國反外國制裁司法救濟機制應當遵循中央事權原則、威懾原則、比例原則。反外國制裁的司法救濟機制是涉外交事務的特別訴訟，有別于普通涉外民商事訴訟，應當建立特定的訴訟規則。在具體制度設計層面，應當完善集中管轄、審查層報、期間和送達、飛躍上訴等特殊審理程序，注意協調處理外國法院判決、國際商事仲裁裁決的承認與執行，並明確歧視性限制措施、制裁條款效力、損失賠償責任等核心實體性問題的認定。

Based on the dual functions of offsetting and remedying, China' s judicial procedure of sanctions-related cases should follow the principles of central authority, deterrence, and proportionality. The judicial remedy procedure of the Anti- Foreign Sanctions Case is a special litigation involving foreign affairs, which is different from ordinary foreign-related civil and commercial litigation, and specific procedural rules should be established. As to the detailed rules of adjudicating sanction-related cases, namely, centralized jurisdiction, internal reports and review, period and service, and leapfrog appeals should be customized to the current trial practices, especially in accordance with the recognition and enforcement of foreign judgments and international arbitral awards. Substantive issues, in the meanwhile, such as determining discriminatory restrictive measures, the effectiveness of sanctions clauses, and liability for losses, should also be clarified.