CAJ | 학술논문

目前两岸互相认可与执行民事判决的规定仍有诸多分歧与差异，表现在对民事确定裁判的概念与内容、国际管辖权、保障法定听审以及两岸法院认可判决的程序和效力等问题之上。本文认为，人民法院的确定判决应有既判力，人民法院作成的调解书应属“民事确定裁判”的指涉范围。解决这些问题的最佳方式，系两岸就民事判决的相互认可与执行签署共同协议。
목전량안호상인가여집행민사판결적규정잉유제다분기여차이，표현재대민사학정재판적개념여내용、국제관할권、보장법정은심이급량안법원인가판결적정서화효력등문제지상。본문인위，인민법원적학정판결응유기판력，인민법원작성적조해서응속“민사학정재판”적지섭범위。해결저사문제적최가방식，계량안취민사판결적상호인가여집행첨서공동협의。
In the light of pertinent regulations, courts across the strait have recognized and enforced many civil and commercial judgments delivered by the other side. However, Taiwan＇s Su- preme Court issued a judgment in 2007 which held that civil judgments issued by courts in mainland China, even they are recognized by courts in Taiwan, shall only be entitled to enforcement without the effect of Res Judicata. This decision not only calls for some theoretical doubts, but al- so is a backlash in terms of cross--strait recognition of judgments. The final and binding civil and commercial judgments include all the rulings of courts issued according to legal procedure and concerning to substantive issues of concerned parties at dispute. However, the judiciaries across the strait disagree on what shall be considered as final and bind- ing. This article contends that mediation documents issued by courts in mainland China should fall within the scope of final and binding civil judgments. However, composition reached only by par- ties themselves during litigant process in mainland China should not be regarded as judgments and therefore should not be recognized and enforced in Taiwan. Nevertheless, in accordance with § 380 of Taiwanese Civil Procedure, a final composition should be a final and binding judgment, which should be recognized by courts in mainland China. Furthermore, temporary rulings of preliminary enforcement of debts against defendants issued by courts in Taiwan and rulings of prelim- inary execution issued by courts in mainland China should be recognized and enforced in the fu- ture, because they have stronger Rechtskraft des Urteils. In terms of the recognition procedure, the mainland side has accepted the reality of the judi- cial powers across the strait and recognized the Res Judicata of Taiwanese judgments. However, on Taiwan＇s side, a recognition procedure is required to recognize judgments issued by courts in mainland China. This differs from the recognition of foreign judgments, which is an automatic process. Since the separate regulations enacted by each side on cross--strait recognition and en- forcement of judgments have resulted in many confusions and disagreements, this article suggests to sign a cross--strait agreement on mutual recognition and enforcement of civil and commercial judgments to address these problems.