China’s Presumptive Reciprocity on Recognition and Enforcement of Foreign Judgments

摘要

China adopts presumptive reciprocity as a new principle for its recognition and enforcement of foreign judgments. It presumes that China is in reciprocal relationship with foreign state unless being proved, especially by refusal precedent, such foreign state denying that. This principle takes important role in the process of China’s shift from de facto reciprocity to de jure reciprocity. It’s of great value to the judicial efficiency of Chinese courts and overseas protection of China’s creditor. However the specific rule of presumptive reciprocity is still vague and unstipulated in law. This article seeks to suggest rules for the application of this principle, by analysing the relevant theory, China’s judicial practice and issues comprehensively. This article finds the following applicable rules. A prima facie ascertainment shall be applied before use of presumpitve reciprocity in order to exclude those foreign states which are impossible to meet de jure reciprocity. Ascertainment on refusal precedent should be on the basis of that precedent constitutes denial of reciprocal relationship, inequality of reciprocity or review of merits, instead of the mere result of that precedent.