海峡两岸民事裁判认可与执行之研究
发布时间：2018-09-10 20:41
【摘要】：随着海峡两岸愈来愈密切的联系与往来,无可避免的就是因此产生许多民商事纠纷。从两岸人民福祉之考虑,维护其合法权益,处理衍生之法律案件,大陆地区和台湾地区陆续颁布相关法律文件,并以此为依据相继有认可与执行对岸民事裁决之案例。但由于两岸在法律制度、司法程序等方面存在明显差异,加之政治因素所涉较多,在相互认可与执行民事裁判方面较为复杂与繁琐,且随着认可对岸民事裁决之实务案例增多,矛盾与问题亦随之凸显。相互认可与执行对岸民事裁决中的要件问题尤其是公序良俗的适用问题、认可之客体是否包括民事调解书、支付令、公证书等文书、认可之民事裁决究竟具备何种效力问题、以及认可与执行对岸仲裁裁决所涉及之相关法律问题等,均引起两岸理论界与实务界之关注与讨论,这也是本文研究之重点,将从多方面多角度对此进行考察和分析,期冀获致合理的结论以及妥适的解决问题意见和方法,以促进两岸间的交流与合作。本文共分六章,全文约四万字。 第一章为问题的提出,首先阐述两岸认可与执行对岸民事裁决之法律依据并加以分析,引用相关案例以说明认可与执行之实况,以及就此衍生之相关问题。 第二章两岸民事裁判相互认可与执行的要件问题进行剖析,首先对两岸认可与执行之要件进行比较研究,而后就其中最为争议之部分即公序良俗原则的适用问题,以实务做法、学者观点为切入点加以研究与讨论。 第三章就争议最大的两岸民事裁判相互认可与执行之效力问题进行剖析,从浙纺V.长荣.海运案入手,对台湾最高法院96年度台上字第2531号判决的判决意旨以及台湾理论界、实务界之观点与做法进行深入的思考与分析,提出经裁定认可之大陆民事裁判应当有与台湾判决同一效力的论点,并从多方面进行论证和确认。 第四章重点讨论对法院调解书和支付令的承认与执行问题,同时对公证文书、民间机构所作之调解书是否属于认可之对象亦进行分析。 第五章则就仲裁裁决的特殊性,对其在认可与执行中所产生的问题进行反思与修正,主要是临时仲裁问题、忽略差异性的简单套用问题以及仲裁机构之调解书问题。 第六章阐述了本文之结论与建议,即消除两岸民事裁判认可与执行障碍的机制,从完善两岸之单边立法、签订两岸之双边协议两个角度构建与完善两岸相互认可与执行之制度。
[Abstract]:As the two sides of the strait become more and more close, it is inevitable that many civil and commercial disputes will arise. Considering the welfare of the people on both sides of the strait, safeguarding their legitimate rights and interests, handling derivative legal cases, the mainland and Taiwan have promulgated relevant legal documents one after another, and on the basis of this, there have been cases of recognizing and executing civil rulings on the other side. However, due to the obvious differences between the two sides in terms of legal system, judicial procedures, and political factors, the mutual recognition and enforcement of civil judgments are more complicated and cumbersome, and with the increasing number of practical cases of approving civil rulings across the Taiwan Strait, Contradictions and problems are also highlighted. The important elements in mutual recognition and enforcement of civil awards, especially the application of public order and good customs, whether the object of approval includes civil mediation documents, payment orders, notary certificates, and what kind of effect does the approved civil award have, And the related legal issues involved in the recognition and enforcement of the cross-bank arbitration award have aroused the attention and discussion of the theoretical and practical circles on both sides of the strait. This is also the focus of this study, which will be examined and analyzed from many aspects and angles. We hope to obtain reasonable conclusions and appropriate solutions to promote cross-strait exchanges and cooperation. This article is divided into six chapters, the full text about 40,000 words. The first chapter is the question of the legal basis and analysis of cross-Strait recognition and enforcement of civil awards, citing relevant cases to illustrate the reality of recognition and enforcement, as well as the related issues arising therefrom. The second chapter analyzes the requirements of mutual recognition and execution of civil adjudicators on both sides of the strait. Firstly, it makes a comparative study on the requirements of mutual recognition and enforcement, and then applies the most controversial part, the principle of public order and good custom, to practice. Scholars point of view to study and discuss. The third chapter analyzes the validity of mutual recognition and enforcement of civil referees on both sides of the Taiwan Strait, from the point of view of Zhejiang Textile. Evergreen. Starting with the maritime transport case, this paper makes a deep thinking and analysis of the meaning of the judgment of the Supreme Court of Taiwan's judgment No. 2531 of 1996, as well as the viewpoints and practices of Taiwan's theoretical and practical circles. This paper puts forward the argument that the mainland civil adjudication should have the same effect as the Taiwan judgment, and proves and confirms it from many aspects. The fourth chapter focuses on the recognition and enforcement of the court mediation and payment orders, and also analyzes whether the notarization documents and the mediation statements made by civil institutions belong to the approved object. The fifth chapter is about the particularity of the arbitration award, which reflects and corrects the problems arising from the recognition and enforcement of arbitration award, mainly the temporary arbitration problem, the simple application of ignoring the difference and the mediation document of the arbitration institution. The sixth chapter expounds the conclusions and suggestions of this paper, that is, the mechanism of removing the obstacles to the recognition and execution of civil adjudication on both sides of the strait, and from the perspectives of perfecting the unilateral legislation of the two sides of the strait and signing the bilateral agreements between the two sides, the system of mutual recognition and enforcement between the two sides of the strait is constructed and perfected.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D925.1;D997
，
本文编号：2235555
[Abstract]:As the two sides of the strait become more and more close, it is inevitable that many civil and commercial disputes will arise. Considering the welfare of the people on both sides of the strait, safeguarding their legitimate rights and interests, handling derivative legal cases, the mainland and Taiwan have promulgated relevant legal documents one after another, and on the basis of this, there have been cases of recognizing and executing civil rulings on the other side. However, due to the obvious differences between the two sides in terms of legal system, judicial procedures, and political factors, the mutual recognition and enforcement of civil judgments are more complicated and cumbersome, and with the increasing number of practical cases of approving civil rulings across the Taiwan Strait, Contradictions and problems are also highlighted. The important elements in mutual recognition and enforcement of civil awards, especially the application of public order and good customs, whether the object of approval includes civil mediation documents, payment orders, notary certificates, and what kind of effect does the approved civil award have, And the related legal issues involved in the recognition and enforcement of the cross-bank arbitration award have aroused the attention and discussion of the theoretical and practical circles on both sides of the strait. This is also the focus of this study, which will be examined and analyzed from many aspects and angles. We hope to obtain reasonable conclusions and appropriate solutions to promote cross-strait exchanges and cooperation. This article is divided into six chapters, the full text about 40,000 words. The first chapter is the question of the legal basis and analysis of cross-Strait recognition and enforcement of civil awards, citing relevant cases to illustrate the reality of recognition and enforcement, as well as the related issues arising therefrom. The second chapter analyzes the requirements of mutual recognition and execution of civil adjudicators on both sides of the strait. Firstly, it makes a comparative study on the requirements of mutual recognition and enforcement, and then applies the most controversial part, the principle of public order and good custom, to practice. Scholars point of view to study and discuss. The third chapter analyzes the validity of mutual recognition and enforcement of civil referees on both sides of the Taiwan Strait, from the point of view of Zhejiang Textile. Evergreen. Starting with the maritime transport case, this paper makes a deep thinking and analysis of the meaning of the judgment of the Supreme Court of Taiwan's judgment No. 2531 of 1996, as well as the viewpoints and practices of Taiwan's theoretical and practical circles. This paper puts forward the argument that the mainland civil adjudication should have the same effect as the Taiwan judgment, and proves and confirms it from many aspects. The fourth chapter focuses on the recognition and enforcement of the court mediation and payment orders, and also analyzes whether the notarization documents and the mediation statements made by civil institutions belong to the approved object. The fifth chapter is about the particularity of the arbitration award, which reflects and corrects the problems arising from the recognition and enforcement of arbitration award, mainly the temporary arbitration problem, the simple application of ignoring the difference and the mediation document of the arbitration institution. The sixth chapter expounds the conclusions and suggestions of this paper, that is, the mechanism of removing the obstacles to the recognition and execution of civil adjudication on both sides of the strait, and from the perspectives of perfecting the unilateral legislation of the two sides of the strait and signing the bilateral agreements between the two sides, the system of mutual recognition and enforcement between the two sides of the strait is constructed and perfected.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D925.1;D997
，
本文编号：2235555
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