试论内地、香港、澳门法院判决承认与执行的依据

On the Gist of Legal Recognition and Enforcement of Judgments between Mainland China, Hong Kong SAR and Macau SAR

摘要: 2008年4月30日，香港特别行政区通过了《内地判决(交互执行)条例》，至此，香港特区现行的认可和执行域外法院判决制度有了“内地判决”和“外地判决”之分，这表明香港特区法制有所变化，是香港特区与内地进行相互认可和执行法院判决的新起点。然而，这并没有改变香港特区承认和执行域外法院判决的法律制度。实际上，香港特区认可和执行内地判决要比认可和执行外地判决在范围上更小，在条件上更严格和繁琐。另外，内地与香港、澳门特区之间开展法院判决承认与执行活动的依据问题上有明显的国际因素。但是，内地与香港特别行政区、澳门特别行政区进行的民商事判决承认与执行活动，属于一国之下的区际司法协助问题，不宜参照“国际”做法，也不应墨守成规。三地开展区际法院判决承认与执行活动的重要原因或依据主要有三个方面：一是经贸关系；二是公民权利；三是法律体系。

Abstract: Mainland Judgments (Reciprocal Enforcement) Ordinance was passed by the government of Hong Kong SAR in April 30, 2008. So far, there are “mainland judgments” and “foreign judgments” in current legal system of the recognition and enforcement of the extraterritorial judgments in Hong Kong, which means that changes are happening in the legal institution of Hong Kong SAR and that a new starting point is arising in the activities of legal recognition and enforcement of judgments between Hong Kong and Mainland China. However, the legal system of the recognition and enforcement of the extraterritorial judgments in Hong Kong SAR has not been transformed. In fact, in Hong Kong, the scope of the recognition and enforcement of mainland judgments is narrower than foreign judgments and the conditions are more rigorous and complex. In addition, the gist in terms of the recognition and enforcement by the courts between Mainland and Hong Kong, Mainland and Macau exhibits evident “international” elements. Nonetheless, the activity of the legal recognition and enforcement of commercial settlement between Hong Kong SAR and Mainland China and between Macau SAR and Mainland China belongs to the scope of regional judicial assistance within PRC. It can’t be referred to the “international” practice and shouldn’t be a stick in the mud. The three significant reasons of the activity of legal recognition and enforcement between three regions are as below: a) the relationship of economy and trade; b) the civic right; c) the legal system.