后ECFA時期兩岸司法協助問題探析
發(fā)布時間：2019-01-05 21:32
【摘要】：在一個中國的原則下,在ECFA剛剛簽訂完成的兩岸經貿合作新時期,海峽兩岸在經濟文化方面進一步的合作交流必然帶來司法互助合作的展開。由于歷史和政治的原因,海峽兩岸有著政治上的特殊性,兩岸政府尚未正式的官方接觸,因此兩岸雙方司法機關未能建立正式的磋商渠道和有效地司法協作機制。而ECFA的簽訂成為一個良好的契機,來共同構建兩岸的司法協助制度體系,司法協助制度構建的跟進可以與兩岸具體經貿協定的簽訂相伴隨,根據具體的經貿政策和協定來創(chuàng)建最符合雙方具體情況的法律規(guī)定。針對ECFA簽訂所為我們帶來的機遇和挑戰(zhàn),有必要完善兩岸的司法協助體系,并借此契機推進兩岸司法協助制度體系的構建,為海峽兩岸的經濟貿易投資合作提供良好的法律環(huán)境。 兩岸司法協助主要包括三方面內容:即文書的送達、調查取證以及判決和仲裁協議的承認和解決。這三方面在目前兩岸的立法中,進度各不相同,同時也存在各自的問題。本文致力于分析三方面目前的現狀及存在的問題,并根據各自的現有程度和各自特性提出解決和完善的建議。 在調查取證方面,兩岸達成了《兩岸公證書使用查證協議》在兩岸互涉案件的審理中發(fā)揮了重要的作用,但該協議規(guī)定適用性仍然非常有限,僅涉及當事人自行舉證情況下,對該證據的查證和適用問題,沒有涉及法院委托對方取證的情況,可以取其進行一定的鞏固和完善,可以在其基礎之上將取證范圍進一步的擴大,增加兩岸法院自行查證須委托對方法院并獲得協助的相關內容。 臺灣地區(qū)僅對文書送達問題進行了較為簡單的原則性規(guī)定,不僅在送達途徑上過于局限,而且規(guī)定歸于空泛,不易與法院的實際操作,而大陸地區(qū)的規(guī)定則沒有體現雙方送達協助的“互動性”。針對目前涉臺民商事案件送達難的問題,人民法院應當采取各種新的措施以提高送達效率。還可以充分的利用兩岸的海協會與�；鶗�,幫助雙方法院完成送達協助的工作。 臺灣地區(qū)對大陸判決的承認與執(zhí)行規(guī)定較為原則,沒有就申請的審查條件、申請的程序等問題做出具體的規(guī)定作,而大陸的規(guī)定則具體務實,便于法院和當事人操作,但還有很多有待完善的細節(jié)之處。鑒于海峽兩岸之間的政治因素尚未完全穩(wěn)定,目前兩岸雙方采取單向立法的模式進行司法協助不可避免,但我們可以在完善各自單向立法并能相互融合統(tǒng)一標準的過程中,為兩岸司法協助的制度化做出貢獻。
[Abstract]:Under the principle of one China, in the new period of cross-strait economic and trade cooperation that ECFA has just signed, the further economic and cultural cooperation between the two sides of the Taiwan Strait will inevitably lead to the development of mutual legal cooperation. Due to historical and political reasons, the two sides of the Taiwan Strait have political particularities, and the governments of the two sides have not yet made official contacts, so the judicial organs of both sides of the strait have failed to establish formal channels of consultation and effective judicial cooperation mechanism. And the signing of ECFA has become a good opportunity to jointly construct the mutual legal assistance system of the two sides of the strait. The follow-up of the establishment of the mutual legal assistance system can be accompanied by the signing of specific economic and trade agreements between the two sides of the strait. According to specific economic and trade policies and agreements to create the most consistent with the specific circumstances of the legal provisions. In view of the opportunities and challenges brought to us by the signing of ECFA, it is necessary to perfect the mutual legal assistance system between the two sides of the strait, and take this opportunity to promote the establishment of the system of mutual legal assistance between the two sides of the strait. To provide a good legal environment for economic, trade and investment cooperation between the two sides of the Taiwan Strait. Cross-strait judicial assistance mainly includes three aspects: the service of documents, the investigation and collection of evidence, and the recognition and settlement of judgments and arbitration agreements. These three aspects in the current cross-strait legislation, the progress is different, but also has their own problems. This paper is devoted to analyzing the present situation and existing problems in three aspects, and puts forward some suggestions on how to solve and perfect them according to their existing degree and characteristics. In the area of investigation and collection of evidence, the two sides of the strait reached a "Agreement on the use of notaries on both sides of the Strait" and played an important role in the trial of cross-Strait cases involving mutual involvement. However, the applicability of the provisions of the agreement is still very limited, and only involves the case of the parties presenting evidence on their own. The investigation and application of the evidence does not involve the case of the court entrusting the other side to collect evidence, so it can be consolidated and perfected to a certain extent, and the scope of the evidence can be further expanded on its basis. Increase the cross-straits court self-examination must entrust the other party court and obtain the relevant content of assistance. The Taiwan region has only made a relatively simple principled provision on the issue of document service. Not only is it too limited in the way of service, but the provisions are too general and not easy to deal with the actual operation of the court. However, the mainland regulations do not reflect the "interaction" of the two parties' service and assistance. In view of the difficulty of service in civil and commercial cases involving Taiwan at present, the people's court should take all kinds of new measures to improve the efficiency of service. We can also make full use of the ARATS and the SEF to help the courts of both sides complete the service and assistance work. Taiwan's provisions on the recognition and enforcement of mainland judgments are more principled and do not make specific provisions on the conditions for examination of applications, the procedures for applications, etc., while the provisions of the mainland are specific and pragmatic, facilitating the operation of courts and parties. But there are still a lot of details to be perfected. In view of the fact that the political factors between the two sides of the Taiwan Strait are not yet fully stable, it is inevitable that the two sides will adopt a one-way legislation model for judicial assistance at present, but we can, in the process of perfecting their respective one-way legislation and being able to integrate the unification standards with each other, To make a contribution to the institutionalization of judicial assistance between the two sides of the strait.
【學位授予單位】：中國政法大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D925;D997
本文編號：2402334
[Abstract]:Under the principle of one China, in the new period of cross-strait economic and trade cooperation that ECFA has just signed, the further economic and cultural cooperation between the two sides of the Taiwan Strait will inevitably lead to the development of mutual legal cooperation. Due to historical and political reasons, the two sides of the Taiwan Strait have political particularities, and the governments of the two sides have not yet made official contacts, so the judicial organs of both sides of the strait have failed to establish formal channels of consultation and effective judicial cooperation mechanism. And the signing of ECFA has become a good opportunity to jointly construct the mutual legal assistance system of the two sides of the strait. The follow-up of the establishment of the mutual legal assistance system can be accompanied by the signing of specific economic and trade agreements between the two sides of the strait. According to specific economic and trade policies and agreements to create the most consistent with the specific circumstances of the legal provisions. In view of the opportunities and challenges brought to us by the signing of ECFA, it is necessary to perfect the mutual legal assistance system between the two sides of the strait, and take this opportunity to promote the establishment of the system of mutual legal assistance between the two sides of the strait. To provide a good legal environment for economic, trade and investment cooperation between the two sides of the Taiwan Strait. Cross-strait judicial assistance mainly includes three aspects: the service of documents, the investigation and collection of evidence, and the recognition and settlement of judgments and arbitration agreements. These three aspects in the current cross-strait legislation, the progress is different, but also has their own problems. This paper is devoted to analyzing the present situation and existing problems in three aspects, and puts forward some suggestions on how to solve and perfect them according to their existing degree and characteristics. In the area of investigation and collection of evidence, the two sides of the strait reached a "Agreement on the use of notaries on both sides of the Strait" and played an important role in the trial of cross-Strait cases involving mutual involvement. However, the applicability of the provisions of the agreement is still very limited, and only involves the case of the parties presenting evidence on their own. The investigation and application of the evidence does not involve the case of the court entrusting the other side to collect evidence, so it can be consolidated and perfected to a certain extent, and the scope of the evidence can be further expanded on its basis. Increase the cross-straits court self-examination must entrust the other party court and obtain the relevant content of assistance. The Taiwan region has only made a relatively simple principled provision on the issue of document service. Not only is it too limited in the way of service, but the provisions are too general and not easy to deal with the actual operation of the court. However, the mainland regulations do not reflect the "interaction" of the two parties' service and assistance. In view of the difficulty of service in civil and commercial cases involving Taiwan at present, the people's court should take all kinds of new measures to improve the efficiency of service. We can also make full use of the ARATS and the SEF to help the courts of both sides complete the service and assistance work. Taiwan's provisions on the recognition and enforcement of mainland judgments are more principled and do not make specific provisions on the conditions for examination of applications, the procedures for applications, etc., while the provisions of the mainland are specific and pragmatic, facilitating the operation of courts and parties. But there are still a lot of details to be perfected. In view of the fact that the political factors between the two sides of the Taiwan Strait are not yet fully stable, it is inevitable that the two sides will adopt a one-way legislation model for judicial assistance at present, but we can, in the process of perfecting their respective one-way legislation and being able to integrate the unification standards with each other, To make a contribution to the institutionalization of judicial assistance between the two sides of the strait.
【學位授予單位】：中國政法大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D925;D997
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