两岸民事判决的认可与执行问题研究
王冠玺,周翠两岸民事判决的认可与执行问题研究
Cross-Strait Recognition and Enforcement of Civil Judgment
期刊名称：《法学研究》
期刊年份：
作者：王冠玺,周翠
单位：浙江大学光华法学院;浙江大学光华法学院
中文关键词：区际司法协助;判决认可;确定判决;既判力;互惠对等原则
英文关键词：interregional judicial assistance;recognition and enforcement of judgment;final and binding judgment;Res Judicata;principal of reciprocity
中文摘要：
目前两岸互相认可与执行民事判决的规定仍有诸多分歧与差异，表现在对民事确定裁判的概念与内容、国际管辖权、保障法定听审以及两岸法院认可判决的程序和效力等问题之上。本文认为，人民法院的确定判决应有既判力，人民法院作成的调解书应属“民事确定裁判”的指涉范围。解决这些问题的最佳方式，系两岸就民事判决的相互认可与执行签署共同协议。
英文摘要：
In the light of pertinent regulations, courts across the strait have recognized and enforced many civil and commercial judgments delivered by the other side. However, Taiwan’s Supreme Court issued a judgment in 2007 which held that civil judgments issued by courts in mainland China, even they are recognized by courts in Taiwan, shall only be entitled to enforcement without the effect of Res Judicata. This decision not only calls for some theoretical doubts, but also is a backlash in terms of cross-strait recognition of judgments.The final and binding civil and commercial judgments include all the rulings of courts issued according to legal procedure and concerning to substantive issues of concerned parties at dispute. However, the judiciaries across the strait disagree on what shall be considered as final and binding. This article contends that mediation documents issued by courts in mainland China should fall within the scope of final and binding civil judgments. However, composition reached only by parties themselves during litigant process in mainland China should not be regarded as judgments and therefore should not be recognized and enforced in Taiwan. Nevertheless, in accordance with § 380 of Taiwanese Civil Procedure, a final composition should be a final and binding judgment, which should be recognized by courts in mainland China. Furthermore, temporary rulings of preliminary enforcement of debts against defendants issued by courts in Taiwan and rulings of preliminary execution issued by courts in mainland China should be recognized and enforced in the future, because they have stronger Rechtskraft des Urteils. In terms of the recognition procedure, the mainland side has accepted the reality of the judicial powers across the strait and recognized the Res Judicata of Taiwanese judgments. However, on Taiwan’s side, a recognition procedure is required to recognize judgments issued by courts in mainland China. This differs from the recognition of foreign judgments, which is an automatic process. Since the separate regulations enacted by each side on cross-strait recognition and enforcement of judgments have resulted in many confusions and disagreements, this article suggests to sign a cross-strait agreement on mutual recognition and enforcement of civil and commercial judgments to address these problems.
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