Beijing Law Review, 2012, 3, 51-55
http://dx.doi.org/10.4236/blr.2012.32007 Published Online June 2012 (http://www.SciRP.org/journal/blr) 51
Construction of a System of Reciprocal Recognition of
Civil Case Jurisdiction among China, Japan and ROK
Yueyao Wu
Shandong University, Weihai, China.
Received April 26th, 2012; revised May 25th, 2012; accepted June 2nd, 2012
ABSTRACT
The aim of the paper is to offer advice about setting on investigating feasibility of a legal system about the reciprocal
recognition of civil case jurisdiction among East Asia region. The present conditions for the recognition of foreign ju-
risdiction in East Asia states are on the whole similar and this is an advantage for th e construction of a unified mecha-
nism. This paper gives three selected models of reciprocal recognition of civil case jurisdiction, which are bilateral judi-
cial assistance treaty, regional multilateral treaties and soften the principle of reciprocity.
Keywords: Recognition and Execution; Foreign Jurisdiction; Principle of Reciprocity
1. Introduction
In the 10 anniversary of cooperation, the second summit
among the People’s Republic of China, Japan and the
republic of Korea was held on October 10, 2009 in Bei-
jing, China. After the meeting, “The tenth anniversary of
the China, Japan and South Korea cooperation joint dec-
laration” was published, which read that: “The three coun-
tries are committed to the long-term goal—construct the
East Asian community on the base of the principle of
open, transparent, and inclusive, committed to the re-
gional cooperation, strengthen communicate and coordi-
nate in regional and in ternationa l affairs day by day.” Fo r
the first time the programmatic do cument pointed out the
direction for East Asia cooperation between the three
Kingdoms, i.e. construct East Asian community. In the
background of constructing an East Asian community, it
is critical to strengthen cooperation in judicial among the
East Asia countries, as economic and trade, finance, in-
vestment, logistics, intellectual property rights and other
fields of cooperation are inseparable from the judicial
cooperation.
The reciprocal recognition of civil case jurisdiction is
an important part of judicial cooperatio n. Once one co un-
try recognizes the civil case of other countries, the judg-
ment of other countries will have some effects on the
country. International law does not stipulate that one
country has the obligation of recognizing and executing
foreign jurisdiction. But in fact, out of the need to inter-
act with each other, most of countries recognize the civil
case jurisdiction of other countr ies in a cer tain range. It is
hard to imagine that countries will not reciprocally rec-
ognize civil case jurisdiction of other countries. Then a
country’s divorce judgment will not be admitted in other
countries, and then the parties must be charged in other
countries, otherwise maybe commit bigamy. So exists in
the other legal relation. From the point of view of the
parties or the state judicial resources, it is tremendous
loss and waste. Therefore, even though any country has
not completely recognized and enforced foreign jurisdic-
tion, but did in different scope and way.
To construct the East Asian community, it is bound to
break the “prisoners’ dilemma” in the mutual recognition
and enforcement of civil case jurisdiction. In this paper
the foreign jurisdiction of recognition and execution as
the key point, trying to set on investigating feasibility of
a legal system about the reciprocal recognition of civil
case jurisdiction among East Asia region.
The straight matter is made of three parts. Part 1 intro-
duces the principle of principle of reciprocal recognition
and the urgency and necessity of construction of a system
of reciprocal recognition. In Part 2 I clarify three selected
model of reciprocal recognition of civil case Jurisdiction,
which are bilateral judicial assistance treaty, regional
multilateral treaties and soften the prin ciple of reciprocity.
Part 3 is on the conclusions and prospect, as shows the
blueprint of the beautiful future in our East Asia.
2. Principle of Reciprocal Recognition and
Convict’s Dilemma
2.1. Principle of Reciprocal Recognition
In accordance with the sovereignty principle of interna-

Construction of a System of Reciprocal Recognition of Civil Case Jurisdiction among China, Japan and ROK
52
tional law, a country’s case jurisdiction acts as its laws
enacted by the legislature, which is only effective in its
own territory. If the jurisdiction would come into effect
in other countries, then it must get the consent of the
other countries, which is called “recognition”; if to be
carried out, it must get other countries’ exequatur. Re-
ciprocal recognition can save related national judicial
cost, maintain the stability of the legal relationship, and
promote the development of civil and commercial con-
tacts. Therefore, nowadays most countries in the world
have recognition and enforcement of foreign civil case
jurisdiction. However it is different in the rang e and con-
ditions of the recognition and enforcement [1]. To sum
up, Chinese, Japonic and South Korean laws on the rec-
ognition of foreign civil case jurisdiction generally pre-
scribe the following: 1) A case judgment made by the
court which has jurisdiction over it; 2) The judgment
must have be effective; 3) It must be a fair trial process;
4) There is no litigation competition; 5) It does not vio-
late the public order of the admitting country .Besides,
the South Korean law adds an element, as is the foreign
judgment must be applied to the law guided by private
international law of South Korea [2].
In addition, the three countries’ law also provides
other special conditions on the recognition and enforce-
ment, namely the principle of reciprocity. The so-called
principle of reciprocity also is called “equivalence prin-
ciple”. It is considered as a basic principle of interna-
tional law, and even is considered as an independent pil-
lar of international law.
The principle of reciprocity is considered as the condi-
tion of recognizing and enforcing the foreign case judg-
ment by many countries. In particular, the principle of
reciprocity includes two aspects of meaning: first of all,
one country refuses to recognize and execute another’s
case jurisdiction, the country will also refuse to acknowl-
edge its. Secondly, the conditions of recognition and en-
forcement must be equal with domestic conditions, that is,
if in the same situation, one country’s conditions on the
recognition and enforcement of the foreign court’s deci-
sion is consistent or more loose than its domestic own
provisions, it will recognize and enforce the foreign judg-
ments. Otherwise, the native will refuse to admit and
enforce the foreign judgments [3].
China civil procedure law article 266 and 265, Japan
civil procedure law article 118 and South Korea civil
procedure law article 217 all provide the principle of
reciprocity as the premise of recognition of foreign case
jurisdiction.
2.2. The Urgency and Necessity of Construction
of a System of Reciprocal Recognition
From what has been said above, it could be known that
China, South Korea and Japan all provide “the principle
of reciprocity” in the civil procedure law. Therefore, if
the three Kingdoms pushed “the principle of reciprocity”
to extreme, a kind of game theory—“prisoner’s di-
lemma” could be caused in the mutual recognition of
civil case jurisdiction among the three countries. In in-
ternational social interactions, the mutual recognization
and enforcement of civil case jurisdiction between two
countries is a typical example.
For example, in the case “a Japanese wuweihuang ap-
plying Chinese court for recognition and enforcement of
the Japanese jurisdiction”, the Japanese made lending
disputes with the Japanese Japan-China products Com-
pany, Ltd. [4] Hereby the Japanese applied to Dalian
intermediate people’s court, China for recognizing and
enforcing the judgment made by Japan Yokohama Dis-
trict Court Tian Yuan branch, and seizure order and
transfer of creditor’s rights made by Japan Kumamoto
District Court Tamara branch. Dalian Intermediate Peo-
ple’s court rejected the request, in respect that Japan has
neither concluded any international treaty on the mutual
recognition and enforcement of case jurisdiction, nor set
up reciprocal relationship.
Because of Chinese refusal in the above case, Osaka
Cour, Japan in 2003 also refused to recognize a Chinese
case judgment for the reason of lacking reciprocal rela-
tionship. According to the prisoner’s dilemma theory, the
two countries actually get into a kind of “mutual break”
double scrapes, which both parties should have avoided.
In the light of the game theory, the best choice is that
both countries take the countermeasures of mutual coop-
eration to achieve a win-win.
The widely known “Shuqin Xia Case” could be used
as an evidence of scathe resulting from the lack of recip-
rocal relationship. On the August 23, 2006 morning,
Nanjing Xuanwu Court heard the case, in which the one
party, Shuqin Xia, a survivor in the Nanjing massacre
accused three Japanese defendants of infringing on her
reputation. The court judged that the defendants in-
fringed plaintiff’s reputation, apologized for Xia and
compensated for all the losses. However, although the
Xia won in China, but the Japanese court would refuse to
recognize and enforce Chinese jurisdiction. Finally, the
Xia had got to charge to the Japanese court. On February
5, 2009 the Japan Supreme Court made a final judgment
that the plaintiff won again. The case finally did succeed.
Yet it is apparent that the plaintiff had to charge again
and again at home and abroad, and it is a gratuitous
waste of a body of work, a lot of time, money and other
judicial resources, because the two countries had not
built reciprocal relationship.
The “prisoner’s dilemma” will become serious obsta-
cles on the civil and commercial communication among
East Asian countries. It is also not conducive to main-

Construction of a System of Reciprocal Recognition of Civil Case Jurisdiction among China, Japan and ROK 53
taining the legitimate interests of all countries. Because
of the financial crisis in 2008, a large number of South
Korean enterprises in China unlawfully evacuated our
country to welch. Therefore, Chinese General Office of
the Ministry of Commerce, Ministry of foreign affairs,
the Ministry of public security office, general office of
the Ministry of Justice jointly issued “The unlawful pull-
out of foreign investment from China stakeholders trans-
national investigation an d litigation work instructions”. It
specified in the article 4: “Once the civil lawsuit brought
by the Chinese party to our courts recovered, if the for-
eign party has no property for execution in China, the
prevailing could request foreign jurisdictional court rec-
ognize and enforce the Chinese judgment according to
the civil and commercial leg al assistance treaty sign ed by
China and other corresponding countries, or according to
the relevant provisions of the losing party’s foreign prop-
erty seat legal.” China and South Korea signed “a treaty
about civil and commercial legal assistance between the
People’s Republic of China and South Korea” in 2003.
The treaty became effective on April 27, 2005. Unfortu-
nately, this treaty does not include the content about the
mutual recognition and execution on the civil and com-
mercial judgment. Besides, China and South Korea did
not set up the reciprocal relations in practice. Thus even
China’s creditors recovered in Chinese court, it will be
difficult to carry out the Chinese judgment in South Ko-
rea. The only choice is to charge again in Korea, which
costs a lot of time and money. So few party will do.
3. Selected Model of Reciprocal Recognition
of Civil Case Jurisdiction among China,
Japan and ROK
3.1. Bilateral Judicial Assistance Treaty
For China, Japan and South Korea, the most effective
way is to conclude bilateral judicial coop eration treaty to
strengthen judicial cooperation in order to get out of the
“prisoner’s dilemma”. So far, the bilateral judicial assis-
tance agreement between China and Japan still has not
come on. Owing to historical factors, big difference ex-
ists in the reciprocal recognition of civil case jurisdiction
between China and Japan, so it is hard to conclude a bi-
lateral treaty on a short term. And, it is not reality that
China and South Korea would reciprocally recognize or
enforce the civil case jurisdiction by emending bilateral
treaty to revise the judicial assistance. But we should
keep optimistic, after all, by the end of June, 2009, China
has already signed 107 treaties of judicial assistance with
63 countries, including more than 40 civil judicial assis-
tance treaties. In East Asia, China has sign ed bilateral ju di-
cial assistance treaty with South Korea and Mongolia.
In addition, China and many countries, (such as France,
Italy, Russia, Mongolia, Kyrgyzstan, and Tajikistan, Uz-
bekistan, etc) signed bilateral civil and commercial legal
assistance treaty, which all includes the provisions of
reciprocal recognition of civil case jurisdiction. The con-
dition as follows: 1) According to the requested party’s
law, a case judgment made by the court which has juris-
diction over it; 2) According to the applicant party’s law,
the judgment must have be effective or with execution; 3)
According to the applicant party’s law, it must be a fair
trial process, that is to say the party failed to appear in
court has got legal summoned or proper agency; 4) There
is no litigation competition; 5) It does not violate the
public order of the admitting country. What is worth to
draw lessons from is that China with France, Spain and
other few countries concludes the judicatory agreement,
which demands a party’s judgment must be applied to the
law guided by private international law of the requested
party [5].
Unfortunately, the bilateral treaty on the judicial assis-
tance between China and South Korea is not stated the
mutual recognition or execution of the civil and com-
mercial case judgment. China and Japan even have not
signed any civil and commercial judicial assistance
agreement so far. In view of so close economic and trade
ties between China, Japan and South Korea, all shall put
some differences aside. Since China and a lot of coun-
tries in Western Europe can achieve such agreements,
what problems could not be solved among so close East
Asian countries?
3.2. Regional Multilateral Treaties
In the long run, the solution is to sign a multilateral in-
ternational treaties on the reciprocal recognition of civil
case jurisdiction among China, Japan and South Korea. It
can draw experience of negotiation from the “Brussels
Convention” and the Hague Conven tion .
On September 27, 1968, Germany, France, Italy, Lux-
embourg, the Netherlands in Brussels signed the “Brus-
sels Convention”. Then Eu ropean Union was established.
It has been committed to make it uniform the reco gnition
of the civil case judgment system in European countries.
Finally on 2 October 1997 the Amsterdam treaty was
passes, and “the judicial cooperation in civil field “was
taken into the European Union’s jurisdiction. On De-
cember 22, 2000 it passed the ordinance on civil and
commercial cases jurisdiction and the recognition and
enforcement of judgment (GVO), which replaced the
1968 “Brussels convention”, and would become effective
on March 1, 20 02.
In 1971, Hague Conference on Private International
Law passed the Convention on Recognition and En-
forcement of Foreign Judgments in International Civil
and Commercial Cases. But only three states including
the Netherlands took part in the convention. And so far,

Construction of a System of Reciprocal Recognition of Civil Case Jurisdiction among China, Japan and ROK
54
it did not take effect. Hague Conference on Private In-
ternational Law has devoted to conclude a more exten-
sive convention on recognition of civil and commercial
case jurisdiction since 1992. Because of disagreements
between the European nations and the USA, just June 30,
2005 Choice of Court Agreement Convention passed on
June 30, 2005, after 10 years’ efforts. This convention
only applies to the international case with exclusive
choice of court agreement in civil and commercial fields,
not to cases about consumer contracts and employment
contracts. China, Japan and South Korea all took an ac-
tive part in the formulation of the convention, and signed
the convention. Although East Asian countries did not
officially ratify the convention, but they could make use
of the experience in negotiation and specific regulations
of the convention.
In fact, International Convention on Civil Liability for
Oil Pollution Damage jointly joined by China, Japan and
South Korea in the 1969 years has the terms about mu-
tual recognition and enforcement of the other’s judgment.
Article 10 of the conv ention provides: “1) Any judgment
given by a Court with jurisdiction in accordance with
article 9 which is enforceable in the State of origin where
it is no longer subject to ordinary forms of review, shall
be recognised in any State Party, except: a) where the
judgment was obtained by fraud; or b) where the defen-
dant was not given reasonable notice and a fair opportu-
nity to present his or her case. 2) A judgment recognised
under paragraph 1 shall be enforceable in each State
Party as soon as the formalities required in that State
have been complied with. The formalities shall not per-
mit the merits of the case to be re-opened.” And accord-
ing to the provisions of article 9 of the convention, the
jurisdictional court is the contracting party court of “oil
pollution damage incidents occurred seat” or of “take
preventive measures to prevent or minimize pollution
damage in such territory”. This shows that it is not im-
possible to sign an international regional convention
among China, Japan and South Korea such as Hague
Choice of Court Agreement Convention.
3.3. Soften the Principle of Reciprocity
From the most feasible measures to see, China, Japan and
South Korea had better soon provide the other two coun-
tries the reciprocal treatment on precognition and en-
forcement of the civil case jurisdiction.
It suffers more and more criticism in the world that
requesting reciprocal treatment on precognition and en-
forcement of the foreign civil case jurisdiction. Recent
legislation and practice in many countries of the world
are beginning to give up the requirements of mutual be-
nefit.
In the United States, although the “Hilton V. Guyot
case” established the principle of reciprocity as early as
in 1895, the principle had been critical since established.
Now most states in the USA have abandoned the re-
quirements of reciprocity, and no longer request recip-
rocity on the recognition and enforcement of foreign
judgment. In particular, California Federal Appeals Court
made a ruling on July 22, 2009, agreeing to implement
the civil judgment made by Hubei Province High Peo-
ple’s Court in China, asking the US Robinson helicopter
Company Ltd make about $650,000 compensation to Chi-
nese Hubei Ggezhouba Sanlian Industrial Co., limited. It
is the first case that the United States recognized and
implemented Chinese court ruling, which is of historic
meaning. In the present case, the USA court, according
to the “uniform foreign money judgment recognization
law”, did not review Chinese law’s mutual benefits to its
courts [6].
In recent years, German scholars put forward “the prin-
ciple of cooperative reciprocity”, that is, as long as it can
determine the foreign no precedents of refusing to ac-
knowledge their courts, Germany would presume the
existence of reciprocity. The court also put it into prac-
tice. In 2006, Berlin High Court recognized a civil judg-
ment made by Wuxi Intermediate People’s Court in
China in accordance with the article 328 of German Civil
Procedure Law. What is worth to pay close attention to is
German court’s explanation of the principle of reciproc-
ity: “Because there no exists any international treaty on
the mutual recognition of civil case jurisdiction between
Germany and China, specific judicial practices act as the
basis for such cases. If both parties only waits for the
other party’s first step, and then follows up to take its
first step, finally mutual reciprocity will be never possi-
ble and could only be thought just, as is no t lawmakers or
law enforcers hope to see. In order to drive the case ju-
risdiction forward without the internation al treaty of mu-
tual recognition the court’s decision, what to consider is
that when one party takes the first step, whether the other
party will follow up or not. According to the develop-
ment of international trade and economic now, China
probably follows up”; “Chinese corresponding provisions
in the law conform to the article 328, paragraph 1 of
German Civil Procedure Law. Therefore Germany should
not give s uspicion on re ci procity”.
Switzerland 1987 “the federal law on private interna-
tional law” also completely giv es up reciprocity, with the
only exception of foreign bankruptcy. Venezuela 1998
“Private International Law and Belgium 2004 Private
International Code no longer require the mutually bene-
ficial relations.
4. Conclusions and Prospect
In East Asia, it has been a consensus among government

Construction of a System of Reciprocal Recognition of Civil Case Jurisdiction among China, Japan and ROK
55
leaders to build an East Community. Against this back-
ground, we should learn from the European experience to
reach at a multilateral agreement. Under the framework
of East Asia community, the prospect of civil judicial
cooperation among China, Japan and South Korea may
follow the track.
Firstly, China, Japan, South Korea and other East Asian
countries and regions could strengthen the negotiations
on bilateral or multilateral free trade area, and at the
same time, actively carry out the negotiations of civil and
commercial legal co-operation. East Asian countries could
as early as possible conclude an international treaty simi-
lar to the Brussels Convention. Now that China, Japan
and South Korea have made it as a common goal to build
an East Asian community, we ought to instantly make
such an international treaty. Because China, Japan and
South Korea all took part in the negotiating process of
the Choice of Court Agreement Convention, we are rather
experienced to conclude such an international treaty.
Secondly, East Asian countries could continue to ne-
gotiate the bilateral judicial assistance, before formally
carrying out the international treaty. China, Japan and
South should try to reach tacit understanding, lay the
foundation for the international convention in the future.
The conditions of recognition of foreign civil judgment
are basically consistent in the East Asian countries,
which is very favorable for negotiation on the judicial
assistance.
Thirdly, it is imperative to reach a consensus action to
cancel the reciprocal request on recognition and enfo rce-
ment of civil case jurisd iction by the Supreme Cou rt case
or judicial interpretation.
In East Asia, it has been a consensus among govern-
ment leaders to build an East Community. Against this
background it is required to set on investigating feasibil-
ity of a legal system about the reciprocal recognition of
civil case jurisdiction among East Asia region. The pre-
sent conditions for the recognition of foreign jurisdiction
in East Asia states are on the whole similar and this is an
advantage for the construction of a unified mechanism.
But the East Asia Countries generally ask for most fa-
vored status, and this may give use to convicts’ dilemma.
For its solution, we should learn from the European ex-
perience to reach at a multilateral agreement. As a start,
to reach a consensus action to cancel the reciprocal re-
quest on recognition and enforcement of civil case juris-
diction, and then negotiate the bilateral judicial assis-
tance, finally East Asian countries could as early as pos-
sible conclude an international treaty.
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[3] M. Whincop, “The Recognition Scene: Game Theoretic
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bourne University Law Review, Vol. 22, No. 2, 1999, p.
421.
[4] R. J. Weintraub, “Conflict of Laws: Cases and Materials,”
2nd Edition, Thomson Reuters and Foundation Press,
New York, 1972.
[5] Kammergericht Berlin, “Kamergericht-Berlin-Beschluss,”
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[6] A. Samuel, “The New Swiss Private International Law
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