中国内地与香港民商事判决的承认与执行问题研究

发布时间：2019-05-29 15:08

【摘要】：自1949年中华人民共和国成立以来,内地一直保持着统一的政治制度和司法体系。而香港回归祖国后,根据“一国两制”的原则,这种局面被打破,内地与香港特别行政区形成了两个不同法域,“一国两制”也被《香港特别行政区基本法》所确认。因此,内地与香港特别行政区面临着前所未有的法律冲突问题。随着内地与香港特别行政区民商事交往的增多,两地之间的民商事案件也不断增加,因此两地的司法协助尤为重要。毫无疑问,法院民商事判决的承认与执行是内地与香港特别行政区司法协助的首要问题,只有在两地实现民商事判决的流通,才能更好的保护当事人的权利,推动两地经贸健康持续发展。目前内地和香港特别行政区在民商事案件判决的承认和执行尽管已达成《关于内地与香港特别行政区法院互相认可和执行当事人协议管辖的民商事案件判决的安排》(以下简称《安排》)但《安排》调整的范围过小,不能满足两地之间经贸往来的需要。针对这种情况,笔者认为应当对内地与香港特别行政区法院民商事判决的承认与执行进行研究,在现有研究成果的基础上结合中国的实际和其他国家和地区的做法,尝试寻找合适的协调方式和解决办法,以解决两地间在管辖权和判决的承认与执上存在的法律冲突,实现判决在两地的流通。本文借助现有国内外研究资料和已有成果,对两地民商事案件判决承认与执行所涉及的诸多问题进行了较为全面、深入和系统的探讨。文章正文主要分六个部分,首先介绍了区际司法协助中法院判决与承认的基本问题,分析了内地与香港特别行政区判决承认与执行的现状。然后,逐一分析了内地与香港特别行政区法院判决承认与执行的条件。接下来,笔者通过对相关国际条约与其他多法域国家区际法院判决承认与执行,又在我国学者的现有研究基础上得出我国内地与香港特别行政区当前应选择区际协议的模式解决两地判决承认与执行的问题。最后对解决内地与香港民商事判决承认与执行进行了一些具体建议。本文试图根据我国的实际情况以及国外的相关经验,结合理论总结出若干原则,在原则的框架下建构解决内地与香港判决承认与执行的模式。
[Abstract]:Since the founding of the people's Republic of China in 1949, the mainland has maintained a unified political system and judicial system. After Hong Kong's return to the motherland, according to the principle of "one country, two systems", this situation has been broken, the mainland and the Hong Kong Special Administrative region have formed two different jurisdiction, and "one country, two systems" has also been confirmed by the basic Law of the Hong Kong Special Administrative region. Therefore, the mainland and the Hong Kong Special Administrative region are facing unprecedented conflicts of law. With the increase of civil and commercial exchanges between the mainland and the Hong Kong Special Administrative region, the number of civil and commercial cases between the two places is also increasing, so mutual legal assistance between the two places is particularly important. There is no doubt that the recognition and enforcement of court civil and commercial judgments is the primary issue of mutual legal assistance between the mainland and the Hong Kong Special Administrative region. Only by realizing the circulation of civil and commercial judgments between the two places can the rights of the parties be better protected. We will promote the healthy and sustainable development of economic and trade between the two places. At present, the recognition and enforcement of judgments in civil and commercial cases between the mainland and the Hong Kong Special Administrative region, although they have reached an agreement between the mainland and the Hong Kong Special Administrative region on the mutual approval of the courts of the mainland and the Hong Kong Special Administrative region and the enforcement of judgments in civil and commercial cases governed by the agreement of the parties Arrangement > (hereinafter referred to as "arrangement") but the scope of the adjustment of "arrangement" is too small, Can not meet the needs of economic and trade exchanges between the two places. In view of this situation, the author believes that the recognition and enforcement of civil and commercial judgments in the courts of the mainland and the Hong Kong Special Administrative region should be studied, and on the basis of the existing research results, combined with the actual practices of China and the practices of other countries and regions, This paper tries to find a suitable coordination way and solution to solve the legal conflict between the two places in the recognition and enforcement of jurisdiction and judgment, and to realize the circulation of judgment between the two places. Based on the existing research data and achievements at home and abroad, this paper makes a comprehensive, in-depth and systematic discussion on many problems involved in the recognition and enforcement of civil and commercial cases in the two places. The main body of the article is divided into six parts. Firstly, it introduces the basic problems of court judgment and recognition in interregional mutual legal assistance, and analyzes the present situation of recognition and enforcement of judgment in mainland and Hong Kong Special Administrative region. Then, the conditions of recognition and enforcement of court judgments in mainland and Hong Kong Special Administrative region are analyzed one by one. Next, the author recognizes and implements the relevant international treaties and the decisions of other multi-jurisdiction national interregional courts. On the basis of the existing research of Chinese scholars, it is concluded that the mainland of China and the Hong Kong Special Administrative region should choose the mode of interregional agreement to solve the problem of recognition and enforcement of judgments between the two places. Finally, some concrete suggestions are made to solve the problem of recognition and enforcement of civil and commercial judgments in mainland and Hong Kong. According to the actual situation of our country and the relevant experience of foreign countries, this paper attempts to sum up some principles and construct a model to solve the problem of recognition and enforcement of judgments in mainland and Hong Kong under the framework of the principles.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997

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