内地与香港婚姻家事判决认可与执行的二元分化困境及化解  

The Dichotomy Dilemma of the Reciprocal Recognition and Enforcement of Civil Judgments on Matrimonial and Family Matters between the Hong Kong and the Mainland

作　　者：张淑钿[1] Zhang Shudian

机构地区：[1]深圳大学法学院

出　　处：《国际法研究》2019年第4期117-128,共12页Chinese Review of International Law

摘　　要：部分婚姻家事判决可以认可执行,部分婚姻家事判决不能认可执行的二元分化现象是内地与香港婚姻家事判决流通制度的突出特征,实践中造成内港婚姻家事案件的诉讼困局。2017年《关于内地与香港特别行政区相互认可和执行婚姻家庭民事判决的安排》尽力化解两地婚姻家事领域条约、实体法、程序法和冲突法的差异,详尽的适用范围列举和有进有退的审查事项,将大部分婚姻家事判决纳入安排适用范围。2019年《内地与香港相互认可和执行民商事案件判决的安排》进一步接纳了个别的婚姻家事判决。但仍有小部分婚姻家事判决无法根据两项安排获得认可执行,内港婚姻诉讼困局得以舒缓但未能完全解决。安排之外的内港婚姻家事判决能否得到认可和执行将取决于两地对安排与域内法之间效力关系的认识。基于安排的性质和以往的实践,可以考虑借助司法解释出台的时机,规定参照安排适用条款从而一揽子解决内港婚姻家事判决的认可和执行。There is a dichotomy that some matrimonial and family civil judgments can be recognized and enforced while others cannot, which is a prominent feature of reciprocal recognition and enforcement of civil judgments on matrimonial and family matters between Mainland and Hong Kong. In practice, it has put the matrimonial and family matter litigation between mainland and Hong Kong in dilemma. The Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region which was signed in 2017 tries to resolve the differences among the treaties, substantive laws, procedural laws and conflict laws in the field of matrimonial and family matter between the Hong Kong and the Mainland. The detailed scope of application and censorship clauses which can both advance and retreat enable most of the matrimonial and family judgments to be included in the arrangement. However, some matrimonial and family judgments could not be recognized and enforced according to the arrangement. The lawsuits dilemma of matrimonial and family between Hong Kong and the Mainland was eased but not fully resolved. Whether the matrimonial and family matter judgments which are excluded from the arrangement can be recognized and enforced depends on the Hong Kong and the Mainland’s understanding of the relationship between the arrangements and the intra-regional law. Based on the nature of the arrangement and the precedents, especially when the Supreme Court issues the judicial interpretation of the arrangement,in the short run it is a good time to consider to stipulate the provisions of application of the arrangement to find a comprehensive solution to the recognition and enforcement of the domestic and foreign matrimonial and family judgments. In the long run, it is necessary for Mainland and Hong Kong to reach consensus and conclude a comprehensive recognition and enforcement of Civil Judgments arrangement as soon as possible.

关 键 词：区际司法协助 判决认可与执行 内港婚姻家事判决 区际私法 

分 类 号：D923.9[政治法律—民商法学]