美国承认与执行外国判决的正当程序审查及中国的因应

Due Process Review of Recognition and Enforcement of Foreign Judgments of the United States and China Response

摘要: 来源于自“自然正义”的正当程序理念，被广泛运用于各个领域，并逐渐发展作为审查外国判决的条件。美国对外国判决的正当程序审查细化了诸多标准，体现在：外国司法系统是否符合正当程序、是否充分保护当事人的诉讼权利、是否存在欺诈行为等。然而美国各州没有统一的立法，导致了在外国当事人和法院申请承认与执行时“走后门”的现象。我国对外国判决正当程序的审查只有抽象的原则性规定，应当在立法上加以细化，使得更具有可操作性。同时，我国在申请美国法院承认与执行我国判决时，可以通过“挑选法院”增加成功的概率。

Abstract: The concept of due process which is derived from “natural justice”, has been widely applied in various fields and has gradually developed as a condition for reviewing foreign judgments. Due process review of foreign judgments in the United States details many criteria, such as whether the foreign judicial system conforms to due process, whether the litigant’s litigation rights are fully protected, and whether there is fraud. However, there is no uniform legislation in states of the US, leading to the phenomenon of pulling strings when foreign parties and courts apply for recognition and enforcement. The review of due process of foreign judgments in China has only abstract principles, which should be refined in legislation to make it more operable. At the same time, China can increase the probability of success by “selecting courts” when applying for recognition and enforcement of Chinese judgments by American courts.