后ECFA时期两岸司法协助问题探析
发布时间：2019-01-05 21:32
【摘要】：在一个中国的原则下,在ECFA刚刚签订完成的两岸经贸合作新时期,海峡两岸在经济文化方面进一步的合作交流必然带来司法互助合作的展开。由于历史和政治的原因,海峡两岸有着政治上的特殊性,两岸政府尚未正式的官方接触,因此两岸双方司法机关未能建立正式的磋商渠道和有效地司法协作机制。而ECFA的签订成为一个良好的契机,来共同构建两岸的司法协助制度体系,司法协助制度构建的跟进可以与两岸具体经贸协定的签订相伴随,根据具体的经贸政策和协定来创建最符合双方具体情况的法律规定。针对ECFA签订所为我们带来的机遇和挑战,有必要完善两岸的司法协助体系,并借此契机推进两岸司法协助制度体系的构建,为海峡两岸的经济贸易投资合作提供良好的法律环境。 两岸司法协助主要包括三方面内容:即文书的送达、调查取证以及判决和仲裁协议的承认和解决。这三方面在目前两岸的立法中,进度各不相同,同时也存在各自的问题。本文致力于分析三方面目前的现状及存在的问题,并根据各自的现有程度和各自特性提出解决和完善的建议。 在调查取证方面,两岸达成了《两岸公证书使用查证协议》在两岸互涉案件的审理中发挥了重要的作用,但该协议规定适用性仍然非常有限,仅涉及当事人自行举证情况下,对该证据的查证和适用问题,没有涉及法院委托对方取证的情况,可以取其进行一定的巩固和完善,可以在其基础之上将取证范围进一步的扩大,增加两岸法院自行查证须委托对方法院并获得协助的相关内容。 台湾地区仅对文书送达问题进行了较为简单的原则性规定,不仅在送达途径上过于局限,而且规定归于空泛,不易与法院的实际操作,而大陆地区的规定则没有体现双方送达协助的“互动性”。针对目前涉台民商事案件送达难的问题,人民法院应当采取各种新的措施以提高送达效率。还可以充分的利用两岸的海协会与海基会,帮助双方法院完成送达协助的工作。 台湾地区对大陆判决的承认与执行规定较为原则,没有就申请的审查条件、申请的程序等问题做出具体的规定作,而大陆的规定则具体务实,便于法院和当事人操作,但还有很多有待完善的细节之处。鉴于海峡两岸之间的政治因素尚未完全稳定,目前两岸双方采取单向立法的模式进行司法协助不可避免,但我们可以在完善各自单向立法并能相互融合统一标准的过程中,为两岸司法协助的制度化做出贡献。
[Abstract]:Under the principle of one China, in the new period of cross-strait economic and trade cooperation that ECFA has just signed, the further economic and cultural cooperation between the two sides of the Taiwan Strait will inevitably lead to the development of mutual legal cooperation. Due to historical and political reasons, the two sides of the Taiwan Strait have political particularities, and the governments of the two sides have not yet made official contacts, so the judicial organs of both sides of the strait have failed to establish formal channels of consultation and effective judicial cooperation mechanism. And the signing of ECFA has become a good opportunity to jointly construct the mutual legal assistance system of the two sides of the strait. The follow-up of the establishment of the mutual legal assistance system can be accompanied by the signing of specific economic and trade agreements between the two sides of the strait. According to specific economic and trade policies and agreements to create the most consistent with the specific circumstances of the legal provisions. In view of the opportunities and challenges brought to us by the signing of ECFA, it is necessary to perfect the mutual legal assistance system between the two sides of the strait, and take this opportunity to promote the establishment of the system of mutual legal assistance between the two sides of the strait. To provide a good legal environment for economic, trade and investment cooperation between the two sides of the Taiwan Strait. Cross-strait judicial assistance mainly includes three aspects: the service of documents, the investigation and collection of evidence, and the recognition and settlement of judgments and arbitration agreements. These three aspects in the current cross-strait legislation, the progress is different, but also has their own problems. This paper is devoted to analyzing the present situation and existing problems in three aspects, and puts forward some suggestions on how to solve and perfect them according to their existing degree and characteristics. In the area of investigation and collection of evidence, the two sides of the strait reached a "Agreement on the use of notaries on both sides of the Strait" and played an important role in the trial of cross-Strait cases involving mutual involvement. However, the applicability of the provisions of the agreement is still very limited, and only involves the case of the parties presenting evidence on their own. The investigation and application of the evidence does not involve the case of the court entrusting the other side to collect evidence, so it can be consolidated and perfected to a certain extent, and the scope of the evidence can be further expanded on its basis. Increase the cross-straits court self-examination must entrust the other party court and obtain the relevant content of assistance. The Taiwan region has only made a relatively simple principled provision on the issue of document service. Not only is it too limited in the way of service, but the provisions are too general and not easy to deal with the actual operation of the court. However, the mainland regulations do not reflect the "interaction" of the two parties' service and assistance. In view of the difficulty of service in civil and commercial cases involving Taiwan at present, the people's court should take all kinds of new measures to improve the efficiency of service. We can also make full use of the ARATS and the SEF to help the courts of both sides complete the service and assistance work. Taiwan's provisions on the recognition and enforcement of mainland judgments are more principled and do not make specific provisions on the conditions for examination of applications, the procedures for applications, etc., while the provisions of the mainland are specific and pragmatic, facilitating the operation of courts and parties. But there are still a lot of details to be perfected. In view of the fact that the political factors between the two sides of the Taiwan Strait are not yet fully stable, it is inevitable that the two sides will adopt a one-way legislation model for judicial assistance at present, but we can, in the process of perfecting their respective one-way legislation and being able to integrate the unification standards with each other, To make a contribution to the institutionalization of judicial assistance between the two sides of the strait.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925;D997
本文编号：2402334
[Abstract]:Under the principle of one China, in the new period of cross-strait economic and trade cooperation that ECFA has just signed, the further economic and cultural cooperation between the two sides of the Taiwan Strait will inevitably lead to the development of mutual legal cooperation. Due to historical and political reasons, the two sides of the Taiwan Strait have political particularities, and the governments of the two sides have not yet made official contacts, so the judicial organs of both sides of the strait have failed to establish formal channels of consultation and effective judicial cooperation mechanism. And the signing of ECFA has become a good opportunity to jointly construct the mutual legal assistance system of the two sides of the strait. The follow-up of the establishment of the mutual legal assistance system can be accompanied by the signing of specific economic and trade agreements between the two sides of the strait. According to specific economic and trade policies and agreements to create the most consistent with the specific circumstances of the legal provisions. In view of the opportunities and challenges brought to us by the signing of ECFA, it is necessary to perfect the mutual legal assistance system between the two sides of the strait, and take this opportunity to promote the establishment of the system of mutual legal assistance between the two sides of the strait. To provide a good legal environment for economic, trade and investment cooperation between the two sides of the Taiwan Strait. Cross-strait judicial assistance mainly includes three aspects: the service of documents, the investigation and collection of evidence, and the recognition and settlement of judgments and arbitration agreements. These three aspects in the current cross-strait legislation, the progress is different, but also has their own problems. This paper is devoted to analyzing the present situation and existing problems in three aspects, and puts forward some suggestions on how to solve and perfect them according to their existing degree and characteristics. In the area of investigation and collection of evidence, the two sides of the strait reached a "Agreement on the use of notaries on both sides of the Strait" and played an important role in the trial of cross-Strait cases involving mutual involvement. However, the applicability of the provisions of the agreement is still very limited, and only involves the case of the parties presenting evidence on their own. The investigation and application of the evidence does not involve the case of the court entrusting the other side to collect evidence, so it can be consolidated and perfected to a certain extent, and the scope of the evidence can be further expanded on its basis. Increase the cross-straits court self-examination must entrust the other party court and obtain the relevant content of assistance. The Taiwan region has only made a relatively simple principled provision on the issue of document service. Not only is it too limited in the way of service, but the provisions are too general and not easy to deal with the actual operation of the court. However, the mainland regulations do not reflect the "interaction" of the two parties' service and assistance. In view of the difficulty of service in civil and commercial cases involving Taiwan at present, the people's court should take all kinds of new measures to improve the efficiency of service. We can also make full use of the ARATS and the SEF to help the courts of both sides complete the service and assistance work. Taiwan's provisions on the recognition and enforcement of mainland judgments are more principled and do not make specific provisions on the conditions for examination of applications, the procedures for applications, etc., while the provisions of the mainland are specific and pragmatic, facilitating the operation of courts and parties. But there are still a lot of details to be perfected. In view of the fact that the political factors between the two sides of the Taiwan Strait are not yet fully stable, it is inevitable that the two sides will adopt a one-way legislation model for judicial assistance at present, but we can, in the process of perfecting their respective one-way legislation and being able to integrate the unification standards with each other, To make a contribution to the institutionalization of judicial assistance between the two sides of the strait.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925;D997
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