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

doi:10.4236/blr.2012.32007

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Beijing Law Review, 2012, 3, 51-55

http://dx.doi.org/10.4236/blr.2012.32007 Published Online June 2012 (http://www.SciRP.org/journal/blr) 51

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 th e 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

In the 10 anniversary of cooperation, the second summit

among the People’s Republic of China, Japan and the

republic of Korea was held on October 10, 2009 in Bei-

jing, China. After the meeting, “The tenth anniversary of

the China, Japan and South Korea cooperation joint dec-

laration” was published, which read that: “The three coun-

tries are committed to the long-term goal—construct the

East Asian community on the base of the principle of

open, transparent, and inclusive, committed to the re-

gional cooperation, strengthen communicate and coordi-

nate in regional and in ternationa l affairs day by day.” Fo r

the first time the programmatic do cument pointed out the

direction for East Asia cooperation between the three

Kingdoms, i.e. construct East Asian community. In the

background of constructing an East Asian community, it

is critical to strengthen cooperation in judicial among the

East Asia countries, as economic and trade, finance, in-

vestment, logistics, intellectual property rights and other

fields of cooperation are inseparable from the judicial

cooperation.

The reciprocal recognition of civil case jurisdiction is

an important part of judicial cooperatio n. Once one co un-

try recognizes the civil case of other countries, the judg-

ment of other countries will have some effects on the

country. International law does not stipulate that one

country has the obligation of recognizing and executing

foreign jurisdiction. But in fact, out of the need to inter-

act with each other, most of countries recognize the civil

case jurisdiction of other countr ies in a cer tain range. It is

hard to imagine that countries will not reciprocally rec-

ognize civil case jurisdiction of other countries. Then a

country’s divorce judgment will not be admitted in other

countries, and then the parties must be charged in other

countries, otherwise maybe commit bigamy. So exists in

the other legal relation. From the point of view of the

parties or the state judicial resources, it is tremendous

loss and waste. Therefore, even though any country has

not completely recognized and enforced foreign jurisdic-

tion, but did in different scope and way.

To construct the East Asian community, it is bound to

break the “prisoners’ dilemma” in the mutual recognition

and enforcement of civil case jurisdiction. In this paper

the foreign jurisdiction of recognition and execution as

the key point, trying to set on investigating feasibility of

a legal system about the reciprocal recognition of civil

case jurisdiction among East Asia region.

The straight matter is made of three parts. Part 1 intro-

duces the principle of principle of reciprocal recognition

and the urgency and necessity of construction of a system

of reciprocal recognition. In Part 2 I clarify three selected

model of reciprocal recognition of civil case Jurisdiction,

which are bilateral judicial assistance treaty, regional

multilateral treaties and soften the prin ciple of reciprocity.

Part 3 is on the conclusions and prospect, as shows the

blueprint of the beautiful future in our East Asia.

2. Principle of Reciprocal Recognition and

Convict’s Dilemma

2.1. Principle of Reciprocal Recognition

In accordance with the sovereignty principle of interna-

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

enacted by the legislature, which is only effective in its

own territory. If the jurisdiction would come into effect

in other countries, then it must get the consent of the

other countries, which is called “recognition”; if to be

carried out, it must get other countries’ exequatur. Re-

ciprocal recognition can save related national judicial

cost, maintain the stability of the legal relationship, and

promote the development of civil and commercial con-

tacts. Therefore, nowadays most countries in the world

have recognition and enforcement of foreign civil case

jurisdiction. However it is different in the rang e and con-

ditions of the recognition and enforcement [1]. To sum

up, Chinese, Japonic and South Korean laws on the rec-

ognition of foreign civil case jurisdiction generally pre-

scribe the following: 1) A case judgment made by the

court which has jurisdiction over it; 2) The judgment

must have be effective; 3) It must be a fair trial process;

4) There is no litigation competition; 5) It does not vio-

late the public order of the admitting country .Besides,

the South Korean law adds an element, as is the foreign

judgment must be applied to the law guided by private

international law of South Korea [2].

In addition, the three countries’ law also provides

other special conditions on the recognition and enforce-

ment, namely the principle of reciprocity. The so-called

principle of reciprocity also is called “equivalence prin-

ciple”. It is considered as a basic principle of interna-

tional law, and even is considered as an independent pil-

lar of international law.

The principle of reciprocity is considered as the condi-

tion of recognizing and enforcing the foreign case judg-

ment by many countries. In particular, the principle of

reciprocity includes two aspects of meaning: first of all,

one country refuses to recognize and execute another’s

case jurisdiction, the country will also refuse to acknowl-

edge its. Secondly, the conditions of recognition and en-

forcement must be equal with domestic conditions, that is,

if in the same situation, one country’s conditions on the

recognition and enforcement of the foreign court’s deci-

sion is consistent or more loose than its domestic own

provisions, it will recognize and enforce the foreign judg-

ments. Otherwise, the native will refuse to admit and

enforce the foreign judgments [3].

China civil procedure law article 266 and 265, Japan

civil procedure law article 118 and South Korea civil

procedure law article 217 all provide the principle of

reciprocity as the premise of recognition of foreign case

jurisdiction.

2.2. The Urgency and Necessity of Construction

of a System of Reciprocal Recognition

From what has been said above, it could be known that

China, South Korea and Japan all provide “the principle

of reciprocity” in the civil procedure law. Therefore, if

the three Kingdoms pushed “the principle of reciprocity”

to extreme, a kind of game theory—“prisoner’s di-

lemma” could be caused in the mutual recognition of

civil case jurisdiction among the three countries. In in-

ternational social interactions, the mutual recognization

and enforcement of civil case jurisdiction between two

countries is a typical example.

For example, in the case “a Japanese wuweihuang ap-

plying Chinese court for recognition and enforcement of

the Japanese jurisdiction”, the Japanese made lending

disputes with the Japanese Japan-China products Com-

pany, Ltd. [4] Hereby the Japanese applied to Dalian

intermediate people’s court, China for recognizing and

enforcing the judgment made by Japan Yokohama Dis-

trict Court Tian Yuan branch, and seizure order and

transfer of creditor’s rights made by Japan Kumamoto

District Court Tamara branch. Dalian Intermediate Peo-

ple’s court rejected the request, in respect that Japan has

neither concluded any international treaty on the mutual

recognition and enforcement of case jurisdiction, nor set

up reciprocal relationship.

Because of Chinese refusal in the above case, Osaka

Cour, Japan in 2003 also refused to recognize a Chinese

case judgment for the reason of lacking reciprocal rela-

tionship. According to the prisoner’s dilemma theory, the

two countries actually get into a kind of “mutual break”

double scrapes, which both parties should have avoided.

In the light of the game theory, the best choice is that

both countries take the countermeasures of mutual coop-

eration to achieve a win-win.

The widely known “Shuqin Xia Case” could be used

as an evidence of scathe resulting from the lack of recip-

rocal relationship. On the August 23, 2006 morning,

Nanjing Xuanwu Court heard the case, in which the one

party, Shuqin Xia, a survivor in the Nanjing massacre

accused three Japanese defendants of infringing on her

reputation. The court judged that the defendants in-

fringed plaintiff’s reputation, apologized for Xia and

compensated for all the losses. However, although the

Xia won in China, but the Japanese court would refuse to

recognize and enforce Chinese jurisdiction. Finally, the

Xia had got to charge to the Japanese court. On February

5, 2009 the Japan Supreme Court made a final judgment

that the plaintiff won again. The case finally did succeed.

Yet it is apparent that the plaintiff had to charge again

and again at home and abroad, and it is a gratuitous

waste of a body of work, a lot of time, money and other

judicial resources, because the two countries had not

built reciprocal relationship.

The “prisoner’s dilemma” will become serious obsta-

cles on the civil and commercial communication among

East Asian countries. It is also not conducive to main-

Construction of a System of Reciprocal Recognition of Civil Case Jurisdiction among China, Japan and ROK 53

taining the legitimate interests of all countries. Because

of the financial crisis in 2008, a large number of South

Korean enterprises in China unlawfully evacuated our

country to welch. Therefore, Chinese General Office of

the Ministry of Commerce, Ministry of foreign affairs,

the Ministry of public security office, general office of

the Ministry of Justice jointly issued “The unlawful pull-

out of foreign investment from China stakeholders trans-

national investigation an d litigation work instructions”. It

specified in the article 4: “Once the civil lawsuit brought

by the Chinese party to our courts recovered, if the for-

eign party has no property for execution in China, the

prevailing could request foreign jurisdictional court rec-

ognize and enforce the Chinese judgment according to

the civil and commercial leg al assistance treaty sign ed by

China and other corresponding countries, or according to

the relevant provisions of the losing party’s foreign prop-

erty seat legal.” China and South Korea signed “a treaty

about civil and commercial legal assistance between the

People’s Republic of China and South Korea” in 2003.

The treaty became effective on April 27, 2005. Unfortu-

nately, this treaty does not include the content about the

mutual recognition and execution on the civil and com-

mercial judgment. Besides, China and South Korea did

not set up the reciprocal relations in practice. Thus even

China’s creditors recovered in Chinese court, it will be

difficult to carry out the Chinese judgment in South Ko-

rea. The only choice is to charge again in Korea, which

costs a lot of time and money. So few party will do.

3. Selected Model of Reciprocal Recognition

of Civil Case Jurisdiction among China,

Japan and ROK

3.1. Bilateral Judicial Assistance Treaty

For China, Japan and South Korea, the most effective

way is to conclude bilateral judicial coop eration treaty to

strengthen judicial cooperation in order to get out of the

“prisoner’s dilemma”. So far, the bilateral judicial assis-

tance agreement between China and Japan still has not

come on. Owing to historical factors, big difference ex-

ists in the reciprocal recognition of civil case jurisdiction

between China and Japan, so it is hard to conclude a bi-

lateral treaty on a short term. And, it is not reality that

China and South Korea would reciprocally recognize or

enforce the civil case jurisdiction by emending bilateral

treaty to revise the judicial assistance. But we should

keep optimistic, after all, by the end of June, 2009, China

has already signed 107 treaties of judicial assistance with

63 countries, including more than 40 civil judicial assis-

tance treaties. In East Asia, China has sign ed bilateral ju di-

cial assistance treaty with South Korea and Mongolia.

In addition, China and many countries, (such as France,

Italy, Russia, Mongolia, Kyrgyzstan, and Tajikistan, Uz-

bekistan, etc) signed bilateral civil and commercial legal

assistance treaty, which all includes the provisions of

reciprocal recognition of civil case jurisdiction. The con-

dition as follows: 1) According to the requested party’s

law, a case judgment made by the court which has juris-

diction over it; 2) According to the applicant party’s law,

the judgment must have be effective or with execution; 3)

According to the applicant party’s law, it must be a fair

trial process, that is to say the party failed to appear in

court has got legal summoned or proper agency; 4) There

is no litigation competition; 5) It does not violate the

public order of the admitting country. What is worth to

draw lessons from is that China with France, Spain and

other few countries concludes the judicatory agreement,

which demands a party’s judgment must be applied to the

law guided by private international law of the requested

party [5].

Unfortunately, the bilateral treaty on the judicial assis-

tance between China and South Korea is not stated the

mutual recognition or execution of the civil and com-

mercial case judgment. China and Japan even have not

signed any civil and commercial judicial assistance

agreement so far. In view of so close economic and trade

ties between China, Japan and South Korea, all shall put

some differences aside. Since China and a lot of coun-

tries in Western Europe can achieve such agreements,

what problems could not be solved among so close East

Asian countries?

3.2. Regional Multilateral Treaties

In the long run, the solution is to sign a multilateral in-

ternational treaties on the reciprocal recognition of civil

case jurisdiction among China, Japan and South Korea. It

can draw experience of negotiation from the “Brussels

Convention” and the Hague Conven tion .

On September 27, 1968, Germany, France, Italy, Lux-

embourg, the Netherlands in Brussels signed the “Brus-

sels Convention”. Then Eu ropean Union was established.

It has been committed to make it uniform the reco gnition

of the civil case judgment system in European countries.

Finally on 2 October 1997 the Amsterdam treaty was

passes, and “the judicial cooperation in civil field “was

taken into the European Union’s jurisdiction. On De-

cember 22, 2000 it passed the ordinance on civil and

commercial cases jurisdiction and the recognition and

enforcement of judgment (GVO), which replaced the

1968 “Brussels convention”, and would become effective

on March 1, 20 02.

In 1971, Hague Conference on Private International

Law passed the Convention on Recognition and En-

forcement of Foreign Judgments in International Civil

and Commercial Cases. But only three states including

the Netherlands took part in the convention. And so far,

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

it did not take effect. Hague Conference on Private In-

ternational Law has devoted to conclude a more exten-

sive convention on recognition of civil and commercial

case jurisdiction since 1992. Because of disagreements

between the European nations and the USA, just June 30,

2005 Choice of Court Agreement Convention passed on

June 30, 2005, after 10 years’ efforts. This convention

only applies to the international case with exclusive

choice of court agreement in civil and commercial fields,

not to cases about consumer contracts and employment

contracts. China, Japan and South Korea all took an ac-

tive part in the formulation of the convention, and signed

the convention. Although East Asian countries did not

officially ratify the convention, but they could make use

of the experience in negotiation and specific regulations

of the convention.

In fact, International Convention on Civil Liability for

Oil Pollution Damage jointly joined by China, Japan and

South Korea in the 1969 years has the terms about mu-

tual recognition and enforcement of the other’s judgment.

Article 10 of the conv ention provides: “1) Any judgment

given by a Court with jurisdiction in accordance with

article 9 which is enforceable in the State of origin where

it is no longer subject to ordinary forms of review, shall

be recognised in any State Party, except: a) where the

judgment was obtained by fraud; or b) where the defen-

dant was not given reasonable notice and a fair opportu-

nity to present his or her case. 2) A judgment recognised

under paragraph 1 shall be enforceable in each State

Party as soon as the formalities required in that State

have been complied with. The formalities shall not per-

mit the merits of the case to be re-opened.” And accord-

ing to the provisions of article 9 of the convention, the

jurisdictional court is the contracting party court of “oil

pollution damage incidents occurred seat” or of “take

preventive measures to prevent or minimize pollution

damage in such territory”. This shows that it is not im-

possible to sign an international regional convention

among China, Japan and South Korea such as Hague

Choice of Court Agreement Convention.

3.3. Soften the Principle of Reciprocity

From the most feasible measures to see, China, Japan and

South Korea had better soon provide the other two coun-

tries the reciprocal treatment on precognition and en-

forcement of the civil case jurisdiction.

It suffers more and more criticism in the world that

requesting reciprocal treatment on precognition and en-

forcement of the foreign civil case jurisdiction. Recent

legislation and practice in many countries of the world

are beginning to give up the requirements of mutual be-

nefit.

In the United States, although the “Hilton V. Guyot

case” established the principle of reciprocity as early as

in 1895, the principle had been critical since established.

Now most states in the USA have abandoned the re-

quirements of reciprocity, and no longer request recip-

rocity on the recognition and enforcement of foreign

judgment. In particular, California Federal Appeals Court

made a ruling on July 22, 2009, agreeing to implement

the civil judgment made by Hubei Province High Peo-

ple’s Court in China, asking the US Robinson helicopter

Company Ltd make about $650,000 compensation to Chi-

nese Hubei Ggezhouba Sanlian Industrial Co., limited. It

is the first case that the United States recognized and

implemented Chinese court ruling, which is of historic

meaning. In the present case, the USA court, according

to the “uniform foreign money judgment recognization

law”, did not review Chinese law’s mutual benefits to its

courts [6].

In recent years, German scholars put forward “the prin-

ciple of cooperative reciprocity”, that is, as long as it can

determine the foreign no precedents of refusing to ac-

knowledge their courts, Germany would presume the

existence of reciprocity. The court also put it into prac-

tice. In 2006, Berlin High Court recognized a civil judg-

ment made by Wuxi Intermediate People’s Court in

China in accordance with the article 328 of German Civil

Procedure Law. What is worth to pay close attention to is

German court’s explanation of the principle of reciproc-

ity: “Because there no exists any international treaty on

the mutual recognition of civil case jurisdiction between

Germany and China, specific judicial practices act as the

basis for such cases. If both parties only waits for the

other party’s first step, and then follows up to take its

first step, finally mutual reciprocity will be never possi-

ble and could only be thought just, as is no t lawmakers or

law enforcers hope to see. In order to drive the case ju-

risdiction forward without the internation al treaty of mu-

tual recognition the court’s decision, what to consider is

that when one party takes the first step, whether the other

party will follow up or not. According to the develop-

ment of international trade and economic now, China

probably follows up”; “Chinese corresponding provisions

in the law conform to the article 328, paragraph 1 of

German Civil Procedure Law. Therefore Germany should

not give s uspicion on re ci procity”.

Switzerland 1987 “the federal law on private interna-

tional law” also completely giv es up reciprocity, with the

only exception of foreign bankruptcy. Venezuela 1998

“Private International Law and Belgium 2004 Private

International Code no longer require the mutually bene-

ficial relations.

4. Conclusions and Prospect

In East Asia, it has been a consensus among government

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

leaders to build an East Community. Against this back-

ground, we should learn from the European experience to

reach at a multilateral agreement. Under the framework

of East Asia community, the prospect of civil judicial

cooperation among China, Japan and South Korea may

follow the track.

Firstly, China, Japan, South Korea and other East Asian

countries and regions could strengthen the negotiations

on bilateral or multilateral free trade area, and at the

same time, actively carry out the negotiations of civil and

commercial legal co-operation. East Asian countries could

as early as possible conclude an international treaty simi-

lar to the Brussels Convention. Now that China, Japan

and South Korea have made it as a common goal to build

an East Asian community, we ought to instantly make

such an international treaty. Because China, Japan and

South Korea all took part in the negotiating process of

the Choice of Court Agreement Convention, we are rather

experienced to conclude such an international treaty.

Secondly, East Asian countries could continue to ne-

gotiate the bilateral judicial assistance, before formally

carrying out the international treaty. China, Japan and

South should try to reach tacit understanding, lay the

foundation for the international convention in the future.

The conditions of recognition of foreign civil judgment

are basically consistent in the East Asian countries,

which is very favorable for negotiation on the judicial

assistance.

Thirdly, it is imperative to reach a consensus action to

cancel the reciprocal request on recognition and enfo rce-

ment of civil case jurisd iction by the Supreme Cou rt case

or judicial interpretation.

In East Asia, it has been a consensus among govern-

ment leaders to build an East Community. Against this

background it is required to set on investigating feasibil-

ity of a legal system about the reciprocal recognition of

civil case jurisdiction among East Asia region. The pre-

sent conditions for the recognition of foreign jurisdiction

in East Asia states are on the whole similar and this is an

advantage for the construction of a unified mechanism.

But the East Asia Countries generally ask for most fa-

vored status, and this may give use to convicts’ dilemma.

For its solution, we should learn from the European ex-

perience to reach at a multilateral agreement. As a start,

to reach a consensus action to cancel the reciprocal re-

quest on recognition and enforcement of civil case juris-

diction, and then negotiate the bilateral judicial assis-

tance, finally East Asian countries could as early as pos-

sible conclude an international treaty.

REFERENCES

[1] Verdross and Simma, “Universelles Voelkerrecht,” Dunc-

ker & Humblot GmbH, Berlin, 1976.

[2] Simma, “Reciprocity in Encyclopedia of Public Interna-

tional Law,” 3rd Edition, Duncker & Humblot GmbH, Ber-

lin, 1984.

[3] M. Whincop, “The Recognition Scene: Game Theoretic

Issues in the Recognition of Foreign Judgments,” Mel-

bourne University Law Review, Vol. 22, No. 2, 1999, p.

421.

[4] R. J. Weintraub, “Conflict of Laws: Cases and Materials,”

2nd Edition, Thomson Reuters and Foundation Press,

New York, 1972.

[5] Kammergericht Berlin, “Kamergericht-Berlin-Beschluss,”

Aktenzeichen: 20 SCH 13/04, 18 May 2006.

[6] A. Samuel, “The New Swiss Private International Law

Act,” International and Comparative Law Quarterly, Vol.

37, No. 3, 1988, pp. 681-695. doi:10.1093/iclqaj/37.3.681