A Study on Judicial Assistance of International Civil Enforcement

• Main Authors: Zhang Zhen-Ping, 張震平
• Other Authors: Lai Lai-Kun
• Format: Others
• Language: zh-TW
• Published: 2010
• Online Access: http://ndltd.ncl.edu.tw/handle/34582003991160607378

碩士 === 玄奘大學 === 法律學系碩士在職專班 === 98 === The scope of international judicial assistance in civil matters includes the "Recognition and enforcement of foreign judgments", "Recognition and enforcement of the foreign arbitral award", "Recognition and enforcement of the civil judgment and arbitral award of the four jurisdictions of both of both sides of Taiwan Straight and Hong Kong and Macau", "Technical assistance in the delivery of the judicial document, case investigation" and so on. The ultimate purpose of judicial assistance of international civil enforcement is to realize and protect the people’s legal rights. For a civil dispute which has experienced the lengthy litigation procedure, the enforcement procedure is the real means to realize the people’s rights and interests. No matter how the dispute solution model is, the final purpose of which is to do every effort to realize the rights and obligations of parties concerned. On the case-by-case basis, the legal relationship between the parties concerned in each kind of foreign legal dispute will become complicated. However, when a foreign civil and/or commercial dispute enters into the stage of litigation, it will inevitably encounter at least the following three hard issues: Firstly, Which country’s court will have the jurisdiction over such case? That is, the determination of the jurisdiction. Secondly, after determination of the jurisdiction of the court, the next problem to be faced will be: Which country’s law will be applied as the basis of court’s judgment? That is, the selection of the applicable law. Thirdly, whether the foregoing court’s judgment can be recognized and enforced in foreign court so as to ensure and protect the people’s rights and interests? To safeguard the state sovereignty, the judicial power exercising within the state is an important symbol of the state power, and subject to the principle of territoriality, it should be held by the court of the state. The legal effect of a foreign court judgment and a foreign arbitration award, in accordance with the international conventions, treaties, international laws and the enactments in the majority of the of countries, should be the same as that of the judgment of a domestic court, however, in practice, the ultimate goal to exactly settle the dispute between the parties should be the result of the enforcement of the judgment. In addition, due to the historical factors, Taiwan and the Mainland China have been separately governed for sixty years. With the gradual opening of exchanges in the fields of economy, culture and academy, the civil and commercial disputes between both sides has significantly increased in recent years. A solution mechanism to solve the issues of conflict of laws between both sides has become a top priority. To meet practical needs, Taiwan has enacted the "Act Governing Relations Between Peoples Of The Taiwan Area And The Mainland Area", which is based on the theory of the regional conflict of laws; and by ways of legislation, to set up a series of official agencies and regulation governing the cross-strait related affairs so as to establish the principles and guidelines of cross-strait judicial mutual assistance in recognition and enforcement of the civil judgments and arbitral awards. This study focuses on the issue of judicial assistance of international civil enforcement. The enforcement systems and the relevant provisions pertaining to the recognition and enforcement of foreign court judgments and arbitral awards which adopted in the advanced countries are introduced in this study. On the other hand, this study also summarizes the substantive provisions relating to the recognition and enforcement of the civil judgment and arbitral award in the four jurisdictions of both of both sides of Taiwan Straight and Hong Kong and Macau. We hope that, through the comparative analysis and organization presented in this study, a meaningful reference with respect to the dealing of international or regional civil and commercial matters for two sides of the Strait in future can be provided.