This article deals with reciprocity requirement for recognition of foreign judgments in Japan. Following German law, Japanese law requires reciprocity to the rendering state in addition to the jurisdiction of the state, the service of process, and the compatibility with Japanese public policy. Although Japanese courts have rarely refused the recognition of foreign judgments for lack of reciprocity for a long time, some Chinese judgments recently have not been recognized for this reason. The author clarifies first with historical review what was the purpose of the Japanese legislator, when the original law of 1890 required the reciprocity by international treaties, and when later the reform law of 1926 required the simple reciprocity that is similarly provided in the current law. The author surveys then the Japanese case law concerning the reciprocity requirement after the reform of 1926. The author focuses further on the reciprocity between Japan and China and compares the Japanese practice with the German one that led to a different result. Last, it is concluded that the reciprocity requirement is contrary to the protection of human rights under Japanese constitution.
This article discusses the rules for recognition and enforcement of foreign judgments in the Republic of Korea (hereinafter referred to as “South Korea” or “Korea”). Articles 217 and 217-2 of the Civil Procedure Act of Korea and Articles 26 and 27 of the Civil Enforcement Act of Korea provide for the recognition and enforcement of foreign judgments respectively. Korea has not entered into any bilateral or multilateral treaties regarding the recognition and enforcement of foreign judgments and is not a party to the Convention on Choice of Court Agreements. The article also considers the current undesirable status of recognition and enforcement of judgments in the region consisting of China, Japan and South Korea (hereinafter referred to as “Region”) and suggests a course of action to be taken to improve the situation. The author believes that the experts of the Region should embark upon a project to improve the current situation and that the first step should be to exchange and gather information on the current legal regime of the countries in the Region on the recognition and enforcement of judgments. The author looks forward to future cooperation among the experts in the Region on this topic and is confident that the reciprocity requirement, which currently is a major obstacle to the mutual recognition and enforcement of foreign judgments in the Region, will be overcome in the near future.
In December 2016, the Nanjing Intermediate People’s Court in China issued its ruling in the Kolmar v. Sutex case, where a monetary judgment from Singapore was recognized and enforced against a local textile company. The case confirms that once a foreign country has taken the initiative, Chinese courts will follow up to enforce judgments from that country reciprocally. This is the doctrine of de facto reciprocity adopted by some Chinese courts. The paper surveys the judicial practice of Chinese courts and finds that this area of law is full of confusion and uncertainties due to the lack of applicable rules. Recent developments suggest that China may move away from this approach and adopt a relaxed version of reciprocity, which is worthy of close attention.
Transboundary recognition and enforcement of judgments is of increasing practical significance and it draws a great deal of efforts at various levels. However, the efforts already made are predominantly in relation to cross-border movement of monetary judgments, leaving non-monetary judgments beyond recognizability. Investigation into China’s legislation and adjudication reveals that there is no distinction made between recognition of monetary and non-monetary judgments, and practice also ignores such a distinction. Following the trend of embracing non-monetary judgments within the scope of recognizablility, China’s standpoint seemingly appears to be desirable, although the long-standing non-differentiation of monetary and non-monetary judgments is not presumed to be originally out of promoting recognition and enforcement of foreign non-monetary judgments in China. It is submitted that for promoting recognition and enforcement of foreign non-monetary judgments, China shall introduce independent rules in order to facilitate the circulation of such judgments, which merits a special treatment. For parties to seek the recognition and enforcement of such judgments, prior to any overhauling of the current legal regime, they have to follow China’s persisting general legal regime and judicial practice regarding recognition and enforcement of all categories of foreign judgments, and a special call is made for particular attention to the reciprocity requirement and due service requirement.
Unlike statutory and discretionary jurisdiction, jurisdiction by choice of court agreement concluded in foreign-related civil and commercial matters should be decided by the parties. As a special contract, the choice of court agreement is so independent that its validity is governed by the law chosen by the parties or by the law of the country where the chosen court is situated in case that the choice of law is invalid. Amendments to the Civil Procedure Law (hereinafter referred to as “CPL”) of People’s Republic of China (2012) should not only include the jurisdiction by choice of court agreement with foreign-related elements, but also stipulate it in a more standardized way, rather than simply refer to provision of jurisdiction by choice of court agreement in domestic cases. At the same time, the CPL should make the scope of application of choice of court agreement more clear, and provide choice of law clause and its confirmative elements when deciding its effectiveness.
Nowadays, the complexity of financial products makes it difficult for retail clients to identify investment risks, and there is an increasing tendency for firms, stipulated by the maximum profits, to recommend or enter into unsuitable transactions to or for retail clients while providing services of investment advice and portfolio management, which causes great losses to a significant number of investors. So, in the contemporary society, the investor suitability rules through which retail clients can purchase suitable financial products are the indispensable legal basis of investor protection. Currently, the regulations concerning investor suitability management in China have several problems, including the chaotic legal system, low effectiveness level and defective contents, which may make it difficult for suitability to be applied in justice and managed effectively. Since the UK’s investor suitability rules in the Conduct of Business Sourcebook that apply to retail clients whose contents include requirements of obtaining retail clients’ information, requirements of information to be provided to retail clients and criteria of assessing suitability are clear and comprehensive, the authors believe that the UK’s experiences can provide a great enlightenment for China to better investor suitability management rules, including integrating legal documents and optimizing effectiveness level, rationalizing application scope, adding criteria of assessing suitability and revising specific clauses.
All three forms of constructive delivery, namely, traditio brevi manu, traditio longa manu, and constitutum possessorium exist in both Chinese law and English law with notable differences in each form. As regards traditio brevi manu, the current unique requirement of the transferee’s prior possession being “legal” under Chinese law cannot be found in or deduced from its English counterpart. As regards traditio longa manu, the major difference between the two jurisdictions is that the third-party possessor’s attornment is necessary condition for a valid traditio longa manu in English law whereas it is not in Chinese law. As regards constitutum possessorium, while English law accepts a wider scope of scenarios than Chinese law, passing of property in English law by way of constitutum possessorium is only effective between the parties themselves but not viz a viz third parties whereas it is effective in both respects in Chinese law. Compared to a mess in English law regarding the issue of symbolic delivery, the simple, clear and negative attitude towards symbolic delivery in Chinese law is to be applauded, and is to be regarded as a Chinese voice that should be insisted on and be brought into the upcoming Book of Property of the Chinese Civil Code.