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Construction of a System of Reciprocal Recognition of Civil Case Jurisdiction Among China, Japan and ROK

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Construction of a System of Reciprocal Recognition of Civil Case Jurisdiction Among China, Japan and ROK Beijing Law Review, 2012, 3, 51-55 51 http://dx.doi.org/10.4236/blr.2012.32007 Published Online June 2012 (http://www.SciRP.org/journal/blr) Construction of a System of Reciprocal Recognition of Civil Case Jurisdiction among China, Japan and ROK Yueyao Wu Shandong University, Weihai, China. Email: [email protected] Received April 26th, 2012; revised May 25th, 2012; accepted June 2nd, 2012 ABSTRACT The aim of the paper is to offer advice about setting on investigating feasibility of a legal system about the reciprocal recognition of civil case jurisdiction among East Asia region. The present conditions for the recognition of foreign ju- risdiction in East Asia states are on the whole similar and this is an advantage for the construction of a unified mecha- nism. This paper gives three selected models of reciprocal recognition of civil case jurisdiction, which are bilateral judi- cial assistance treaty, regional multilateral treaties and soften the principle of reciprocity. Keywords: Recognition and Execution; Foreign Jurisdiction; Principle of Reciprocity 1. Introduction ognize civil case jurisdiction of other countries. Then a country’s divorce judgment will not be admitted in other In the 10 anniversary of cooperation, the second summit countries, and then the parties must be charged in other among the People’s Republic of China, Japan and the countries, otherwise maybe commit bigamy. So exists in republic of Korea was held on October 10, 2009 in Bei- the other legal relation. From the point of view of the jing, China. After the meeting, “The tenth anniversary of parties or the state judicial resources, it is tremendous the China, Japan and South Korea cooperation joint dec- loss and waste. Therefore, even though any country has laration” was published, which read that: “The three coun- not completely recognized and enforced foreign jurisdic- tries are committed to the long-term goal—construct the tion, but did in different scope and way. East Asian community on the base of the principle of To construct the East Asian community, it is bound to open, transparent, and inclusive, committed to the re- break the “prisoners’ dilemma” in the mutual recognition gional cooperation, strengthen communicate and coordi- and enforcement of civil case jurisdiction. In this paper nate in regional and international affairs day by day.” For the foreign jurisdiction of recognition and execution as the first time the programmatic document pointed out the the key point, trying to set on investigating feasibility of direction for East Asia cooperation between the three a legal system about the reciprocal recognition of civil Kingdoms, i.e. construct East Asian community. In the case jurisdiction among East Asia region. background of constructing an East Asian community, it The straight matter is made of three parts. Part 1 intro- is critical to strengthen cooperation in judicial among the East Asia countries, as economic and trade, finance, in- duces the principle of principle of reciprocal recognition vestment, logistics, intellectual property rights and other and the urgency and necessity of construction of a system fields of cooperation are inseparable from the judicial of reciprocal recognition. In Part 2 I clarify three selected cooperation. model of reciprocal recognition of civil case Jurisdiction, The reciprocal recognition of civil case jurisdiction is which are bilateral judicial assistance treaty, regional an important part of judicial cooperation. Once one coun- multilateral treaties and soften the principle of reciprocity. try recognizes the civil case of other countries, the judg- Part 3 is on the conclusions and prospect, as shows the ment of other countries will have some effects on the blueprint of the beautiful future in our East Asia. country. International law does not stipulate that one country has the obligation of recognizing and executing 2. Principle of Reciprocal Recognition and foreign jurisdiction. But in fact, out of the need to inter- Convict’s Dilemma act with each other, most of countries recognize the civil 2.1. Principle of Reciprocal Recognition case jurisdiction of other countries in a certain range. It is hard to imagine that countries will not reciprocally rec- In accordance with the sovereignty principle of interna- Copyright © 2012 SciRes. BLR 52 Construction of a System of Reciprocal Recognition of Civil Case Jurisdiction among China, Japan and ROK tional law, a country’s case jurisdiction acts as its laws China, South Korea and Japan all provide “the principle enacted by the legislature, which is only effective in its of reciprocity” in the civil procedure law. Therefore, if own territory. If the jurisdiction would come into effect the three Kingdoms pushed “the principle of reciprocity” in other countries, then it must get the consent of the to extreme, a kind of game theory—“prisoner’s di- other countries, which is called “recognition”; if to be lemma” could be caused in the mutual recognition of carried out, it must get other countries’ exequatur. Re- civil case jurisdiction among the three countries. In in- ciprocal recognition can save related national judicial ternational social interactions, the mutual recognization cost, maintain the stability of the legal relationship, and and enforcement of civil case jurisdiction between two promote the development of civil and commercial con- countries is a typical example. tacts. Therefore, nowadays most countries in the world For example, in the case “a Japanese wuweihuang ap- have recognition and enforcement of foreign civil case plying Chinese court for recognition and enforcement of jurisdiction. However it is different in the range and con- the Japanese jurisdiction”, the Japanese made lending ditions of the recognition and enforcement [1]. To sum disputes with the Japanese Japan-China products Com- up, Chinese, Japonic and South Korean laws on the rec- pany, Ltd. [4] Hereby the Japanese applied to Dalian ognition of foreign civil case jurisdiction generally pre- intermediate people’s court, China for recognizing and scribe the following: 1) A case judgment made by the enforcing the judgment made by Japan Yokohama Dis- court which has jurisdiction over it; 2) The judgment trict Court Tian Yuan branch, and seizure order and must have be effective; 3) It must be a fair trial process; transfer of creditor’s rights made by Japan Kumamoto 4) There is no litigation competition; 5) It does not vio- District Court Tamara branch. Dalian Intermediate Peo- late the public order of the admitting country .Besides, ple’s court rejected the request, in respect that Japan has the South Korean law adds an element, as is the foreign neither concluded any international treaty on the mutual judgment must be applied to the law guided by private recognition and enforcement of case jurisdiction, nor set international law of South Korea [2]. up reciprocal relationship. In addition, the three countries’ law also provides Because of Chinese refusal in the above case, Osaka other special conditions on the recognition and enforce- Cour, Japan in 2003 also refused to recognize a Chinese ment, namely the principle of reciprocity. The so-called case judgment for the reason of lacking reciprocal rela- principle of reciprocity also is called “equivalence prin- tionship. According to the prisoner’s dilemma theory, the ciple”. It is considered as a basic principle of interna- two countries actually get into a kind of “mutual break” tional law, and even is considered as an independent pil- double scrapes, which both parties should have avoided. lar of international law. In the light of the game theory, the best choice is that The principle of reciprocity is considered as the condi- both countries take the countermeasures of mutual coop- eration to achieve a win-win. tion of recognizing and enforcing the foreign case judg- The widely known “Shuqin Xia Case” could be used ment by many countries. In particular, the principle of as an evidence of scathe resulting from the lack of recip- reciprocity includes two aspects of meaning: first of all, rocal relationship. On the August 23, 2006 morning, one country refuses to recognize and execute another’s Nanjing Xuanwu Court heard the case, in which the one case jurisdiction, the country will also refuse to acknowl- party, Shuqin Xia, a survivor in the Nanjing massacre edge its. Secondly, the conditions of recognition and en- accused three Japanese defendants of infringing on her forcement must be equal with domestic conditions, that is, reputation. The court judged that the defendants in- if in the same situation, one country’s conditions on the fringed plaintiff’s reputation, apologized for Xia and recognition and enforcement of the foreign court’s deci- compensated for all the losses. However, although the sion is consistent or more loose than its domestic own Xia won in China, but the Japanese court would refuse to provisions, it will recognize and enforce the foreign judg- recognize and enforce Chinese jurisdiction. Finally, the ments. Otherwise, the native will refuse to admit and Xia had got to charge to the Japanese court. On February enforce the foreign judgments [3]. 5, 2009 the Japan Supreme Court made a final judgment China civil procedure law article 266 and 265, Japan that the plaintiff won again. The case finally did succeed. civil procedure law article 118 and South Korea civil Yet it is apparent that the plaintiff had to charge again procedure law article 217 all provide the principle of and again at home and abroad, and it is a gratuitous reciprocity as the premise of recognition of foreign case waste of a body of work, a lot of time, money and other jurisdiction. judicial resources, because the two countries had not 2.2. The Urgency and Necessity of Construction built reciprocal relationship. of a System of Reciprocal Recognition The “prisoner’s dilemma” will become serious obsta- cles on the civil and commercial communication among From what has been said above, it could be known that East Asian countries.
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