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ПРАВА ЧЕЛОВЕКА HUMAN RIGHTS
DOI: 10.33693/2223-0092-2022-12-6-143-149
Recognition and Enforcement
of Foreign Foreign Divorce Judgments in China
Ren Yan-yana ©, Huang Pei-qib ©
Shanghai University of Political Science and Law, Shanghai, China
a E-mail: renyanyan@shupl.edu.cn b E-mail: huangpeiqi060@126.com
Abstract. Recognition and enforcement of foreign divorce judgments is an important part of the recognition and enforcement of foreign civil and commercial judgments. Based on the analysis of the classification of current judicial cases on the recognition and enforcement of foreign divorce judgments by Chinese courts, the study finds that the current Chinese courts maintain a high recognition rate of foreign divorce judgments and focus on the recognition of dissolution of marriage content. At the same time, China has clarified the treaty, legislative and judicial basis for recognizing and enforcing foreign divorce judgments, and established the application of the principle of reciprocity. This article will discuss the institutional development of the recognition of foreign divorce decrees by Chinese courts in the context of the entry into force of China's Civil Code and the current judicial practice of recognition and enforcement of foreign divorce decrees in China and the current legal provisions.
Key words: Chinese courts, recognition and enforcement, foreign divorce judgments, Chinese Civil Code, private international law
DOI: 10.33693/2223-0092-2022-12-6-143-149
Признание и исполнение иностранных решений о разводе в Китае
Ren Yan-yana ©, Huang Pei-qib ©
Шанхайский политико-юридический университет,
Центр международной юридической подготовки и сотрудничества для ШОС (Китай), Шанхай, Китай
a E-mail: renyanyan@shupl.edu.cn b E-mail: huangpeiqi060@126.com
Аннотация. Признание и исполнение иностранных решений о разводе является важной составляющей признания и исполнения иностранных гражданских и коммерческих решений. На основе анализа классификации актуальных судебных дел о признании и приведении в исполнение решений о разводе, вынесенных иностранными судами, в исследовании делается вывод о том, что китайские суды подтверждают признание решений о разводе, вынесенных иностранными судами, и уделяют основное внимание признанию условий расторжения брака. В статье подробно рассмотрены, признанные в Китае, вопросы договорной, законодательной и судебной основы признания и приведения в исполнение иностранных решений о разводе и сформулированы правила применения принципа взаимности. В статье обсуждается институциональное развитие признания китайскими
судами иностранных декретов о разводе в контексте вступления в силу Гражданского кодекса Китая, а также нынешняя судебная практика признания и исполнения иностранных декретов о разводе в Китае и действующие правовые положения.
Ключевые слова: китайские суды; признание и приведение в исполнение иностранных решений о разводе; Гражданский кодекс Китая; международное частное право
ДЛЯ ЦИТИРОВАНИЯ: Ren Yan-yan, Huang Pei-qi. Признание и исполнение иностранных решений о разводе в Китае // Социально-политические науки. 2022. Т. 12. № 6. С. 143-149. DOI: 10.33693/2223-0092-2022-12-6-143-149
1. INTRODUCTION
Divorce judgments have their special characteristics compared with other civil judgments. The content of divorce judgments is composite in nature, and divorce judgments usually involve issues such as marital relations, division of property between spouses, and child support.
In the period when transnational civil legal relations are common exist, whether foreign divorce judgments can be successfully recognized by Chinese courts is related to the identity interests of the parties, who need to realize the protection of their private rights and interests through the recognition and enforcement of divorce judgments, while judicial organs need to achieve social justice for the parties through the operation of procedures and entities under the principle of fairness and justice. This article will discuss the institutional development of the recognition of foreign divorce decrees by Chinese courts in the context of the entry into force of China's Civil Code and the current judicial practice of recognition and enforcement of foreign divorce decrees in China and the current legal provisions.
2. GENERAL SITUATION OF RECOGNITION AND ENFORCEMENT
OF FOREIGN DIVORCE JUDGMENTS IN CHINA
This article have collected the documents of Chinese courts that received applications for recognition and enforcement of foreign divorce judgments between 2012 and 2022 which have public contents and results.1 As the pace of China's opening up to the outside world has gradually accelerated, the civil and commercial exchanges with foreign countries have become increasingly close. The countries where Chinese courts have received more applications for recognition and enforcement of foreign divorce judgments are Korea, the United States, Canada, Australia.
In terms of the annual distribution of the number of cases, before 2015, the number of applications for recognition and enforcement of foreign divorce judgments received by Chinese courts did not exceed 100. In 2015, the number of such instruments was close to 200, which shows that the provisions of Interpretations of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (hereafter "Judicial Interpretation of Civil Procedure Law") have allowed more such cases to enter
1 Search: "Application for Recognition and Enforcement of Civil Judgments and Decisions of Foreign Courts" from 2012 to 2022 on the China Judgments Online, with statistics as of February 10, 2022.
the judicial process smoothly.2 According to the statistics of the cases retrieved, the number of such cases in the past three years were 195 in 2021, 119 in 2020, and 196 in 2019. The decrease in the number of cases in 2020 is obviously affected by the COVID-19 pandemic, in which countries adopt strict preventive and control measures to reduce the cross-border movement of people.3 However, in 2021, the number of cases still rebounded to nearly 200, even though the above influencing factors have not yet completely disappeared, which shows that the demand for recognition of foreign divorce judgments by parties in the context of cross-border civil and commercial circulation is still on an upward trend.
In terms of the outcome, the majority of applications for recognition and enforcement of foreign divorce judgments received by Chinese courts have been recognized. For foreign judgments that have been recognized, the content of the recognition is focused on the dissolution of marriage. Exceptin the case ofjudicial assistance treaties,therecognition of foreign divorce judgments by Chinese courts is limited to the recognition of the content related to the "dissolution of marriage", and does not include the recognition of the content related to the division of property and child support in foreign judgments. If the foreign judgment applied by the applicant for recognition contains contents related to child support and property division, the Chinese courts generally do not review the relevant items in judicial practice; some courts recognize the dissolution of marriage in accordance with domestic law, and at the same time, explicitly mention the contents of property relations in the adjudication documents based on the fact that China has not concluded a civil and commercial judicial assistance treaty with the country where the judgment was rendered "No recognition and enforcement".4 For foreign judgments that were not recognized, there were only five cases searched. The reasons focused on the defective judicial process of the original judgment.
3. LAW APPLICATION OF RECOGNITION AND ENFORCEMENT
OF FOREIGN DIVORCE JUDGMENTS IN CHINA
In terms of legislative development, Art. 281 and Art. 282 of Civil Procedure Law of PRC established the basic rules that recognition and enforcement of foreign civil and
2 Interpretations of the supreme people's court on the application of the civil procedure law of the People's Republic of China. Fa Shi. 2015. No. 5.Effective from February 4, 2015.
3 Liu Jing-dong, Zhang Can. An empirical study on the recognition and enforcement of foreign courts' effective judgments in China - based on the analysis of typical people's court cases from 2018 to 2020. Strait Law. 2021. Vol. 3. P. 83.
4 Yue - 06 Xie Wai Ren. No. 1. 2018.
Ren Yan-yan, Huang Pei-qi
commercial judgments must be based on bilateral judicial assistance agreements or the principle of reciprocity with the country where the original judgment was rendered; in 2015, the Judicial Interpretation of Civil Procedure Law clarified that recognition and enforcement of foreign divorce judgments are not restricted by treaties and the principle of reciprocity.
At present, the legal basis for the recognition and enforcement of foreign divorce judgments by Chinese courts can be divided into three levels: firstly, if China has concluded a judicial assistance agreement with the country where the judgment was rendered, the relevant judgment will be recognized and enforced in accordance with the agreement. The second level is the application of the Provisions of the Procedure for Application for Recognizing Divorce Judgments of Foreign Courts and the Provisions on Receiving Applications for Recognizing Divorce Judgments ofForeign Courts (hereinafter collectively referred to as "the two provisions").5 The application of the above two provisions requires meeting special prerequisites.Thirdly, the recognition of foreign divorce judgments based on the principle of reciprocity when the above two circumstances cannot be satisfied.
3.1. Judicial assistance agreements basis
Among the cases studied in this article, there were 10 cases in which the courts explicitly relied on the provisions of the Civil Procedure Law and the agreement on judicial assistance concluded between China and foreign countries, including Vietnam, Italy, Spain, France, Bulgaria.6 All of these treaties contain clauses about "Refusal of recognition and enforcement".7 Civil Procedure Law and its judicial interpretations clearly state that the absence of international treaties and reciprocity shall not be a condition for refusing to recognize foreign divorce judgments, and Chinese domestic law also specifies that "for divorce judgments rendered by foreign courts with which China has judicial assistance agreements, applications for recognition shall be made in accordance with the provisions of the agreements",8 stating that in the case of judicial assistance agreement, priority shall be given to their application.
In practice, Chinese courts have adopted a reserved attitude towards the usual treatment of matters relating to the division of property and the upbringing of children, in cases dealt with in accordance with
5 Provisions on Receiving Applications for Recognizing Divorce Judgments of Foreign Courts. Fa Shi. 2020. No. 20. Effective from January 1, 2021; Provisions of the Supreme People's Court on Issues Concerning Acceptance by People's Courts of Applications for Recognizing Divorce Judgments of Foreign Courts. Fa Shi. 2020. No. 20. Effective from January 1, 2021.
6 Agreement between the People's Republic of China and the French Republic on Judicial Assistance in Civil and Commercial Matters (hereinafter referred to as the "China-France Agreement") (entered into force on February 8, 1988); Agreement between the People's Republic of China and the Republic of Bulgaria on Judicial Assistance in Civil Matters (hereinafter referred to as the "China-Bulgaria Agreement") (entered into force on June 30, 1995).
7 Art. 22 of the China-France agreement; Art. 22 of the China-Spain agreement; Art. 21 of the China-Italy agreement; Art. 17 of the China-Vietnam agreement; Art. 21 of the China-Bulgaria agreement.
8 Art. 1 of the provisions of the procedure for application for
recognizing divorce judgments of foreign courts.
the judicial assistance agreements. In the case of "Liu's application for recognition and enforcement of foreign civil judgment",9 in addition to granting divorce, the judgment made by the Spanish court at the same time confirmed the divorce agreement between the two parties on the support of children born after the marriage and the economic division of the couple, compensation fees and other content. The Chinese court, in accordance with the agreements on mutual judicial assistance concluded between China and Spain and the conditions laid down by Chinese law for the recognition of divorce judgments of foreign courts, recognizing the legal effect of the part of the judgment concerning the dissolution of the marital relationship between the two parties; in the case of "Zou's application for recognition and enforcement of foreign civil judgment",10 the application for recognition and enforcement of the judgment includes the dissolution of the marriage, child custody, alimony, joint property. The Chinese court recognizes and enforces the effect of the divorce. According to the China-Spain Agreement, there is no differentiation between the recognition and enforcement of the content of dissolution of marriage or other content in the judgment of divorce. Thus, in the case where judicial assistance agreements exist and are in force, Chinese courts' recognition of foreign divorce judgments is limited to the dissolution of identity relations.
3.2. Application of Chinese domestic law provisions
In the absence of provisions for recognition and enforcement of relevant agreements, Chinese courts are required to recognize and enforce foreign divorce judgments in accordance with the Civil Procedure Law and its judicial interpretations, as well as the provisions of domestic law. Art. 281 and Art. 282 of the Civil Procedure Law establish the basic rules for all civil and commercial judgments applied for recognition and enforcement in Chinese courts, while Art. 544 of the Interpretation of the Civil Procedure Law clarifies that the lack of agreements or the principle of reciprocity is not a condition for refusing to recognize foreign divorce judgments.
In judicial practice, most of the foreign divorce judgments have been recognized in accordance with the two provisions. They are more specific and are reflected in the following aspects: firstly, the conditions of application are limited, the two provisions are only applicable to the recognition of the content of the dissolution of marriage in the judgment, and the applicant or the applicant's former spouse is of Chinese nationality; secondly, the circumstances of refusal of recognition are clear. Art. 12 of the Provisions of the Procedure for Application for Recognizing Divorce Judgments of Foreign Courts provides for the conditions of non-recognition of foreign divorce judgments in an enumerated manner, and the lack of jurisdiction of the court where the original judgment was rendered is included in the circumstances of refusal of recognition and enforcement; thirdly, for non-recognition of foreign divorce judgments, Art. 13 clearly confirms that the application is rejected under the circumstances of "non-recognition", while Art. 22 specifies that those whose applications are rejected may sue for divorce in court.
9 Jing - 03 Xie Wai Ren No. 3. 2016.
10 Zhe - 01 Xie Wai Ren No. 2. 2016.
3.3. Application of reciprocity principle
The recognition and enforcement of foreign divorce judgments in China's judicial practice does not completely exclude the examination of the principle of reciprocity. In theory, the provisions of the Civil Procedure Law on recognition and enforcement as the underlying legal basis should be applicable to all civil and commercial judgments. Not refusing to recognize a foreign divorce judgment on the basis of lack of reciprocity does not mean that the application of reciprocity is completely excluded. In particular, recognition and enforcement in relation to child support and property division still need to be based on the criteria of agreements or reciprocal relationship.
There is currently no clear legal provision in Chinese law on how to determine reciprocity. The most recent developments in the doctrine of reciprocity are mainly in the commercial field and have not been extended to the field of family judgments, especially divorce judgments. In the recent practice of recognizing foreign judgments, Chinese courts still generally follow the standard of "de facto reciprocity" when examining whether there is reciprocity with the country of the original court,11 i.e., the existence of precedents of recognition and enforcement of civil judgments of Chinese courts in the country of origin is used as the basis for determining the existence of reciprocal recognition and enforcement of civil judgments between the parties.
For foreign divorce judgments only involving the dissolution of marriage, some Chinese courts have also adopted the above criteria in their judicial practice of recognition and enforcement: in the civil rulings recognizing a U.S. divorce judgment,12 the Shanghai First Intermediate People's Court held that "After this court has conducted a review in accordance with the reciprocity. After reviewing the judgment in accordance with the principle of reciprocity, it is determined that the judgment does not violate the basic principles of the laws of the PRC or its sovereignty, security or public interests, and meets the conditions for recognizing the validity of foreign court judgments under the laws of the PRC". In addition, the Chengdu Intermediate People's Court went further than strict de facto reciprocity in its ruling recognizing a Canadian divorce judgment. It stated that "The civil judgment was rendered by a Canadian court, and China and Canada have not concluded or jointly participated in international treaties or agreements on the mutual recognition and enforcement of judgments in civil and commercial matters, but there is also no evidence that Canada has refused to recognize civil judgments rendered in China, and Chinese courts have on several occasions recognized Canadian divorce judgments. According to the principle of reciprocity, Chinese courts can recognize and enforce civil judgments of eligible Canadian courts". That is, for the recognition of a divorce judgment, if there is a precedent of a Chinese court recognizing a foreign judgment and there is no precedent of a foreign court rejecting it, the two countries are considered to have reciprocity.
11 Zhang Zheng-yi, Zhang Zhen. The Development of the International Civil and Commercial Judgment Recognition and Enforcement System and Its Implications for China. International and Comparative Law Series. 2020. P. 123.
12 Hu - 01 Xie Wai Ren No. 7. 2019.
In applying the principle of reciprocity in the recognition and enforcement of foreign divorce judgments that involve property division and other elements, Chinese courts are more cautious. In the case of Li's application for recognition and enforcement of a civil judgment and ruling of a foreign court, the applicant requested the court to recognize the divorce judgment issued by the Singapore Family Court, based on a case in which a Chinese court confirmed a reciprocal relationship with Singapore. The request of the applicant included recognition of the granting of dissolution of marriage and division of property in its entirety. The Chinese court found that the case submitted by the applicant only demonstrated that there was a reciprocal precedent in the economic field for the recognition of civil judgments between the two countries in order to facilitate trade and investment between the "Belt and Road" countries, however, it can not be proved that the principle of reciprocity also exists in the area of civil judgments concerning status relations between the two countries, and therefore only the part of the judgment that allows the parties to dissolve their marriage is recognized.13 Thus it can be seen that because of the great differences in the purpose and nature of the recognition and enforcement of judgments in the commercial field and divorce judgments, even though there are precedents in Chinese judicial practice for courts to explicitly recognize foreign judgments in the commercial field that have elements of payment on the basis of the principle of reciprocity, when dealing with questions of division of property or payment of alimony in divorce judgments, courts also do not necessarily follow the commercial precedent in the area of recognition and enforcement of divorce judgments.
4. IMPACT OF THE CIVIL CODE ON RECOGNITION AND ENFORCEMENT
OF FOREIGN DIVORCE JUDGMENTS IN CHINA
From the perspective of interest realization, therecognitionandenforcementofforeigndivorcejudgments is mainly for the sake of social justice of the parties and the need to protect their private law rights, and less involves the balance of state interests. The Civil Code of the People's Republic of China (hereinafter referred to as the "Civil Code") came into force on January 1, 2021. As the latest and most important civil substantive law, the Civil Code will also generate new thoughts on the direction of the development of the system of recognition and enforcement of foreign divorce judgments in China.
4.1. The overall approach to divorce in Civil Code: Guaranteeing freedom of divorce
The Marriage and Family Division of the Civil Code is the overarching and integrated basic law in the field of marriage and family in China, providing the basic legal principles and institutional framework for guiding related laws, regulations and judicial interpretations, and forming a systematic system of legal norms regulating marriage and family relations.14 The philosophy of the Marriage
13 Su - 01 Xie Wai Ren No. 3. 2016.
14 Xia Yin-lan. The innovation and development of marriage and family codification. Chinese Legal Science. 2020. Vol. 4. No. 4. P. 66.
Ren Yan-yan, Huang Pei-qi
and Family section of the Civil Code is consistent with the Universal Declaration of Human Rights,15 which states that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State".16 The Civil Code also establishes the principle of freedom of divorce and against frivolous divorces, and for the first time adds a cooling-off period to the divorce procedure by mutual consent, with the aim of preventing frivolous divorces and protecting the interests of the family and marriage, the parties and the minor children.17 In terms of divorce proceedings, the Civil Code establishes the legal standard of "breakdown of the spouses' feelings" and establishes the procedural rule of mediation.
4.2. Positive supplement in Civil Code:
Clear rules on child support and property division
In terms of child support supplements, the Civil Code implements the principle of maximizing the interests of the child as stated in the UN Convention on the Rights of the Child,18 and Art. 1084 of the Civil Code specifies the principles of child support after a parent's divorce, specifically: children under the age of two shall be raised directly by the mother as a matter of principle, and children over the age of two shall be raised by the parents in consultation first, and the court shall decide on the basis of the principle of the best interests of the minor if consultation fails. The court will decide on the principle of the best interest of the minor, and respect the true will of the child reached the age of eight. This supplement specifies the rules for determining the custody relationship based on age, which is not discretionary compared to other rules, and the parties are bound by this rule if they sue in a Chinese court for change of custody.
In terms of the property, the Civil Code specifies the scope of common property and common debts of the spouses, and in terms of the rules for the division of property between divorced spouses, the division of common property is based on negotiation, and if negotiation fails, it is handled in accordance with the principle of taking care of the rights and interests of the children, the woman and the party who is not at fault. Common debts that are deemed to be common are jointly repaid by both parties.19
4.3. The significance of Civil Code for the realization
of the rights of parties to foreign divorce judgments
Under the current legislation, Chinese courts generally state in the adjudication documents that "the case will be handled separately" or instruct the parties to file a separate divorce lawsuit in relation to the division of the couple's property, the burden of living expenses and child support, etc. According to Art. 27 of Law of the Application of Law for Foreign-related Civil Relations
15 See: Art. 1041 of the Civil Code of PRC.
16 UN: Universal Declaration of Human Rights (1948), Art. 16.3. URL: https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf (data of accesses: 09.06.2022).
17 See: Art. 1077 of the Civil Code of PRC.
18 UN: Convention on the Rights of the Child (1989), Art. 9.1. URL: https://www.unicef.org/child-rights-convention/convention-text (data of accesses: 09.06.2022).
19 See: Arts. 1062, 1064, 1087, 1089 of the Civil Code of PRC.
of the PRC,20 Civil Code shall apply to some divorce cases with foreign-related elements, as long as the parties choose to file divorce proceedings in Chinese court.
It is worth noting that in judicial practice prior to the entry into force of the Civil Code, foreign divorce judgments that had been recognized by Chinese courts could serve as the factual basis. In the civil case of "custody dispute between Feng and Wang", both parties were Chinese citizens who had obtained recognition of the dissolution of marriage in the foreign divorce judgment involving the custody relationship from the Chinese court, and then filed a litigation for the change of custody. The Chinese court considered the foreign divorce judgment's analysis and determination of the parents' capacity and the outcome of the custody decision to be reasonable, and used it as the basis of fact and the domestic law as the legal basis to adjudicate the parties' claims, and the outcome of the adjudication was consistent with the content of the foreign judgment on custody.21 It is foreseeable that under the clearer and more specific rules of the Civil Code, after the parties apply for recognition of a foreign divorce judgment, other elements of the foreign divorce decree can still be realized more smoothly through litigation by applying the rules of the Civil Code.
5. FUTURE PROSPECTS FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DIVORCE JUDGMENTS IN CHINA
Civil Procedure Law and other procedural provisions have already established a basic structure for the recognition and enforcement of foreign divorce judgments, but there is still room for improvement to achieve a more efficient and comprehensive circulation of foreign divorce judgments.
5.1. Jurisdictional review standards
for foreign divorce judgments need improvement
One of the preconditions for the recognition and enforcement of foreign civil and commercial judgments is that the court of the rendered country must have qualified jurisdiction. Regarding the recognition and enforcement of foreign divorce judgments, Chinese law includes that "the foreign court that rendered the judgment has no jurisdiction over the case" as one of the grounds for refusal to recognize and enforce a judgment.22 However, the current Chinese legislation does not specify the law under which the indirect jurisdiction of foreign courts is to be judged. In judicial practice, there are few cases in which recognition has been denied on the grounds of lack of jurisdiction; in addition, this paper has combed through the reasoning of the judgment documents, and few courts have addressed the circumstances that establish that the court in which the original judgment was entered had jurisdiction over the divorce judgment.
Therefore, considering that the goal of recognizing foreign divorce judgments is to reduce the conflict
20 Art. 27 of Law of the Application of Law for Foreign-related Civil Relations of the PRC provides: The laws at the locality of the court shall apply to a divorce by litigation.
21 Hong Shao Min Chu Zi No. 41, 2015.
22 Art. 12(2) of the Provisions of the Procedure for Application for Recognizing Divorce Judgments of Foreign Courts.
of marital relations in different countries, it is necessary to clarify the standards for reviewing and confirming the jurisdiction of foreign courts in legislation and judiciary for China. Specifically, if jurisdictional standards have been specifically established in a judicial assistance agreement, jurisdiction will be deemed to exist as long as the standards are met, such as the defendant having a domicile in the country, or the defendant's express or implied acceptance. In the absence of a relevant agreement, Chinese courts should clarify the basis for review of the recognition and enforcement of foreign divorce judgments, and refer to the HCCH 1970 Divorce Convention and other internationally accepted rules to add provisions on the review of the jurisdictional criteria of the trial court, such as the nationality of the country of origin and certain conditions of habitual residence of both parties to the application on the date of the commencement of divorce proceedings.23
5.2. Priority application
of judicial assistant agreements needs to be clarified
Civil Procedure Law and the provisions on recognition and enforcement of foreign divorce judgments make it clear that judicial assistance treaties, where they exist, should be applied with priority. The reasons are that bilateral judicial agreements are more targeted to the application of the judgment of the corresponding country and the conditions and restrictions for their application are different; the jurisdictional requirements of judicial agreements are different in each agreement. The analysis of Chinese practice cases shows that the rule that bilateral judicial agreements take precedence over the application of domestic laws has not been strictly implemented.
In the environment where foreign marriages are concluded more and more frequently, it is suggested that when reviewing applications for recognition and enforcement of foreign divorce judgments, Chinese courts, in terms of rule application, should first pay attention to reviewing the conclusion of bilateral judicial assistance agreements and, where the existence of bilateral judicial assistance agreements is confirmed, strictly give priority to their application, while no longer reviewing the relevant recognition conditions by the provisions of domestic law; in terms of content review, according to the scope of the content of the provisions of the agreements for In terms of content review, the content of the judgment should be recognized in accordance with the scope of the agreement provisions to enhance the predictability and certainty of judicial practice.
5.3. Child support element
in foreign divorce judgments may be recognized
In foreign divorce judgments, the most common elements, other than the dissolution of marriage, are the division of property and child support. The division of property involves property jurisdiction and the judicial sovereignty of each country, and it is mostly not dealt with in the recognition and enforcement stage in the rules
23 HCCH: Convention of June 1, 1970 on the Recognition of Divorces and Legal Separation, Art. 2. URL: https://assets.hcch.net/docs/ bdb59a0f-9405-4910-9dc3-b7e5310405cc.pdf (data of accesses: 19.06.2022).
of each country. However, the issue of child support involves to a greater extent the personal rights and interests of family members and the protection of children. At present, the Civil Code adopts the principle of maximizing the interests of children in the issue of divorce custody with explicit provisions, and the protection of children has been strengthened globally. Under this new trend, it is of practical significance for Chinese judicial practice to follow the concept of the Civil Code, establish a mechanism to review the facts of the original judgment, and explore the realization of child support in the divorce judgment.
In the recognition and enforcement proceedings, the court generally does not make changes to the substance of the foreign court's divorce judgment and will not change the conclusive opinion of the original judgment. Previously, there have been custody modification lawsuits in which the facts found in the recognized foreign divorce judgments were used as the factual basis, and this practice is conducive to reducing the litigation burden of the parties, and at the same time is conducive to realizing the value of judicial efficiency. This indicates the facts and concluding opinions other than the dissolution of marriage in the recognized foreign divorce judgments are still has possibility to be recognized. Futher, if the parties concerned have the will to file another lawsuit against the content of custody, the Chinese court may establish an appropriate mechanism to make appropriate findings or facts on the content of child custody in the foreign divorce judgment, so as to efficiently realize the rights and interests of the parties concerned while safeguarding judicial sovereignty.
6. SUMMARY
As an important element in the field of international judicial assistance, the recognition and enforcement of foreign court divorce judgments is of great significance to enhance the international mobility of national court judgments, promote international exchanges and protect the personal rights and interests of the parties. Analyzing from the current situation of Chinese judicial practice, the Chinese Civil Procedure Law and other regulations have established an effective legal structure for the recognition and enforcement of foreign divorce judgments. At a time when the system of recognition and enforcement of foreign civil and commercial judgments is changing rapidly, especially after the Civil Code has entered into force, China should actively promote the development of the system of recognition and enforcement of foreign divorce judgments, not only to protect the personal legal rights and interests of the parties, but also to show the efficient and fair image of China's judiciary as a great power in international judicial exchanges and cooperation, and to enhance the influence of China's judiciary and its status as a great judicial power.
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Статья проверена программой Антиплагиат
Статья поступила в редакцию 04.11.2022, принята к публикации 11.12.2022 The article was received on 04.11.2022, accepted for publication 11.12.2022
ABOUT THEAUTHORS
Ren Yan-yan, lecturer, Shanghai University of Political Science and Law, National Institute for SCO International Exchange and Judicial Cooperation. Shanghai, China. ORCID: https://orcid.org/0000-0003-0953-7560; E-mail: renyanyan@shupl.edu.cn
Huang Pei-qi, LLM Candidate, International Law School, Shanghai University of Political Science and Law. Shanghai, China. ORCID: https://orcid.org/0000-0003-1130-7297; E-mail: huangpeiqi060@126.com
СВЕДЕНИЯ ОБ АВТОРАХ
Ren Yan-yan, преподаватель, Шанхайский политико-юридический университет, Центр международной юридической подготовки и сотрудничества для ШОС (Китай). Шанхай, Китай. ORCID: https://orcid.org/0000-0003-0953-7560; E-mail: renyanyan@shupl.edu.cn
Huang Pei-qi, магистр, Школа международного права, Шанхайский политико-юридический университет, Шанхай, Китай. ORCID: https://orcid.org/0000-0003-1130-7297; E-mail: huangpeiqi060@126.com
