Verbürgung der Gegenseitigkeit als verfassungswidrige Voraussetzung für die Anerkennung und Vollstreckung ausländischer Urteile in Japan

Abstract

This article deals with the principle of reciprocity as a requirement for the recognition of foreign judgments in Japan. For a foreign judgment to be recognised, Japanese law, similar to the German provision, requires not only jurisdiction of the state in which the judgment was rendered, service of the documents by which the proceedings were initiated as well as compatibility with public policy, but also that the requirement of reciprocity is met by the other state. Whereas Japanese courts have seldom refused recognition of foreign judgments in the past, there have been several cases in the last couple of years where Chinese judgments have not been recognised because of lack of reciprocity.

The author begins by giving a historical overview of the development of the legal requirements and the goals of the legislator. Building on these findings, the author analyses the Japanese judicial practice of interpreting the legal requirement of reciprocity since the reform of 1926. The article then goes on to discuss the principle of reciprocity in relation to China and compares the Japanese with the differing German practice. The author concludes by arguing that the requirement of reciprocity in Japanese law is violating the Japanese Constitution because it is irreconcilable with the protection of property by Article 29.

(The Editors)