From April 14 to 15, 2017, the 3rd International Civil Litigation Research Committee Seminar by Chinese Private International Law Society and the Great Judicial Forum was successfully held in Shanghai University of Political Science and Law.
The forum was hosted by the China International Private Law Society International Civil Litigation Research Committee, Shanghai School of Political Science and Law, Boss & Young Law Firm. The theme of the conference was determined by Prof. He Qisheng, deputy director of the Institute of International Law of Wuhan University, a national high-end think tank, to discuss the problems and solutions that China may encounter when it joined the Convention Abolishing the Requirement of Legalization for Foreign Public Documents (it can also be called Apostille). The participants include those who are professionals in practical filed as well some international law experts and scholars. They participated in this conference and conducted in-depth discussions and research on this topic.
On the morning of April 14, Professor He Qisheng presided over the opening ceremony of the meeting. He pointed out the significance of the study to join the Apostille, and expressed his appreciation to the experts and scholars who came to the meeting.
Professor Liu Xiaohong, the president of Shanghai University of Political Science and Law, delivered an opening speech. She pointed out that whether or not to join the Apostille is a issue concerning both the theory and practice of private international law.
In the opening speech, Deputy Director Sun Ang said in the opening speech that the current judicial forum of the great powers has three major characteristics: the combination of politics and science, the combination of the mainland and Hong Kong and Macao, and the combination of international and domestic. In addition, he also expressed some hopes for this forum that representatives will make constructive comments and suggestions on the feasibility and necessity of China's accession to Apostille in this forum.
In the opening speech, Prof. Guo Yujun, Vice President and Secretary General of China Institute of Private International Law and Professor of Wuhan University Law School pointed out that since the establishment of the International Civil Litigation Research Committee of the China Society of Private Law in 2014 some very important issues in the field of international civil litigation have already been discussed and achieved fruitful research results. So does this 3rd one.
I. The necessity and possibility of joining the Apostille
Professor He Qisheng, deputy dean of the School of Law of Wuhan University, proposed that almost all of the world's major powers are parties to Apostille. The Convention simplifies the certification process and replaces the more cumbersome consular certification process with a one-step certification procedure. China's existing certification system is not conducive to the people's cross-border exchanges, increasing the procedures and burdens of foreign citizens coming to China, and setting up unnecessary formalities and obstacles for China's import and export trade. This is undoubtedly contrary to China's deepening of the requirements of reform and opening up, and is also not conducive to the internationalization of China's foreign trade and investment. In general, the Convention has created a more relaxed environment for cross-border investment, international trade, and mobility, so it is necessary to join the Apostillen. Professor Song Xiao from Nanjing University Law School agrees with Professor He's point of view and believes that the certification procedures for public documents should be simplified. However, in judicial practice, the court should conduct hierarchical management of different types of evidence, especially foreign judicial documents.
Director Li Zhiying of the Ministry of Justice introduced the characteristics of Apostille, the simplicity of the procedure, the high efficiency and the high usage rate. She believes that China's accession to the Convention is in line with the global trend, and can also serve China's "Belt and Road" strategy. The data shows that at present, Chinese parties spend a lot of time and money to do a certification process. In contrast, the cost of certification procedures in other countries is much lower. Associate Professor Tu Guangjian of the University of Macau believes that joining Apostille will be conducive to simplifying the process of submitting complex public documents in the past and benefiting the general public; it is conducive to international investment and foreign trade on a macro level.
Sun Jin, deputy director of the International Cooperation Bureau of the Supreme People's Court, believes that the existence of Apostille is to facilitate the exchange and convenient use of international instruments. But the premise is that the documents are authentic and legal.
Professor Du Tao from East China University of Political Science and Law analyzed the impact of China's accession to Apostille on international trade from the perspective of international trade. He pointed out that a large amount of data shows that China's accession to the convention is more beneficial than harm. If China joins the convention, it will greatly facilitate import and export trade, help improve the efficiency of import and export customs clearance, and promote the rapid development of China's foreign trade economy. Associate Professor Bu Lu of the School of Law of Suzhou University believes that it is also necessary to discuss the impact of the elimination of certification on the resolution of international trade disputes.
Associate Professor Wang Chengzhi of Sun Yat-sen University analyzed the necessity of joining the Apostille from the perspective of lawyer practice. He believes that the existence and abolition of the certification process reflects the contradiction and unification of the "legality" and "authenticity" of the evidence. Retaining the certification process reflects the requirement of “legality” of the form of evidence; the cancellation of the certification process reveals the search for the “authenticity” of the evidence. For this problem, Professor Yuan Faqiang of East China University of Political Science and Law believes that the dual certification does not involve the authenticity of the certification content. The dual-certified documents are not necessarily true and legal, and they are not necessarily proof.
Qian Zhenqiu, a doctoral student at Wuhan University, took the fragmentation of the flow of EU public documents as an entry point and introduced the EU's exemption from identity document certification to promote mobility. Dr. Zhang Wenliang from Renmin University of China believes that the fragmentation of the flow of public documents in the EU deserves our reflection.
The Director of the Ministry of Foreign Affairs, Mi Bin, analyzed the problems faced by Apostille from the perspective of factual affairs. The introduction of the instrument represents the certification of the instrument on behalf of the state. The certification is the signature and seal of the instrument, not the specific content of the instrument. In the future, it will be a future trend for consular certification between the Apostille members to be replaced by a simpler additional certificate.
Mr. Brody Warren, Legal Officer of the Permanent Office of the Hague Conference on Private International Law, introduced the Hague Convention on De-certification and its recent developments. Brody Warren pointed out that the Apostille is the largest and most widely applicable Hague Convention currently ratified and acceded to. Regarding the Electronic Additional Certifications Program, Mr. Brody Warren stated that the Electronic Additional Certifications Program was officially launched in 2006 and will be more conducive to promoting the global mobility of public documents.
Lawyer Xu Baoru of the Department of Justice of the Hong Kong Special Administrative Region introduced the application of Apostille in Hong Kong. The Convention began to apply to Hong Kong in 1965 and has been in operation for more than 50 years. In 2016, Hong Kong issued more than 40,000 additional certificates. In addition, Mr. Xu Baoru also introduced that Hong Kong can inquire about documents by means of written, e-mail and information networks to prevent counterfeiting and fraud of additional certificates.
Director Qiu Xianzhe of the Legal Affairs Bureau of the Macao SAR Government introduced the application of the Hague Convention on De-certification in Macao. He introduced the implementation of the Hague Convention on De-certification since its application in the Macao SAR on February 4, 1969. Subsequently, Director Qiu Xianzhe also exchanged views on the issues in practice and the delegates.
Associate Professor Tu Guangjian also briefly introduced the operation of the Apostille in Macao. He believes that if China joins the Hague Convention on the Elimination of Certification, it can draw on the provisions of Articles 356 and 358 of the Macao Civil Code regarding the validity of public documents and the validity of foreign public documents.
2. Issues and suggestions for joining the Convention on the Apostille
Deputy Director Sun Ang of the Ministry of Foreign Affairs proposed that negotiations to join international treaties are legislative acts, not judicial acts. It is equivalent to the development of a new law and is not subject to the current law. Most of the major developed countries today are parties to the Apostille, so we need to seriously consider the issue of accession to the Convention.
The Deputy Director of the Supreme People's Court Sun Jin put forward five points: First, from the practical level, joining the Apostille is a change in procedures; secondly, from a legal perspective, joining the Apostille will not be related to notarization. And the issue of evidence conflicts. Third, the accession to Apostille for foreign embassies and consulates is still a minority of important political issues to be resolved. Fourth, the current treatment of certification issues has already had some judicial preparations; Fifth, the purpose of joining the Apostille is to facilitate the people and at the same time to promote the development of China's diplomacy.
Professor He Qisheng conducted a countermeasure analysis on the conflicts that may be encountered when joining the Apostille. After combing and analyzing the legal documents, regulations, departmental rules and other legal documents that may be affected by the Convention, Professor He Qisheng believes that the first thing to consider is the possible conflict between the current law and the Convention. For example, Article 264 of the Civil Procedure Law, Article 33 of the Notarization Law and Article 21 of the Adoption Law. Secondly, laws and regulations related to dual certification will also be partially conflicted with the accession to the Apostille; diplomatic and consular institutions need to be exempt from certification, and the other party directly uses the additional certificate and does not need certification. Finally, if China joins the Apostille, some administrative regulations requiring documents issued abroad may also be in conflict with the Convention. In addition, Professor He Qisheng also said that in the face of the conflicts that may be encountered when joining the Apostille, China needs to adhere to the basic principles of treaty priority, and the issue that cannot be resolved by the principle of priority of the treaty can be resolved by issuing legal rules.
Deputy Director of the Ministry of Foreign Affairs, Mr. Si Chengyan, believes that joining the Apostille is equivalent to exempting the embassies and consulates in China, mainly affecting Chinese embassies and consulates abroad. Although the consular certification is not responsible for the content, from the practical point of view, the embassy or consulate has strictly controlled it to determine whether it is obviously illegal, harming national interests or social public interests. Joining the Apostille places higher demands on the courts and related units.
Ms. Tong Yan, Consul of the Ministry of Foreign Affairs, believes that joining the Apostille will not have too much impact on the existing domestic system. The cancellation will only cancel the certification of the embassies and consulates in China. The certification link still exists, but it has become Additional certificate. For our citizens, this change has almost no harm, and the reduction of the certification process has greatly improved the efficiency of the people.
Mr. Zhou Yong, the Secretary of the Ministry of Foreign Affairs, believes that the biggest problem facing the Apostille is the change of concept. First, to change the understanding of the concept of certification, we should recognize that the certification in the consular certification scheme and the certification in the Convention are two different concepts. The definition of certification should be based on Article 2 of the Convention. The identification of the signature identity, not the text itself, is determined; secondly, we should be aware that the relationship between the certification and the legal document is the relationship between the skin and the hair, and the skin will not be preserved. However, the expectations of the courts and some substantive departments far exceed the meaning of the certification itself.
Zhang Wei, the investigator of the Notary Public Work of the Ministry of Justice, raised some concerns. First, the notary industry is not familiar with the Apostille, and joining the convention will have a profound impact on the entire notary industry. Secondly, joining the Apostille will make the consular certification responsibility relatively weak, which will increase the pressure on the frontline notary. Finally, joining the Apostille requires the relevant departments to introduce supporting measures. He also said that joining the Apostille is a measure to benefit the country and the people, and the Ministry of Justice will actively promote related work.
Judge Sun Mingjuan of the Supreme People's Court held that the accession to Apostille requires that the relevant laws clearly stipulate the scope of application and the strength of the certificate of the competent authority. At the same time, the court should actively study the convention and provide better judicial protection.
Associate Professor Li Jing of East China University of Political Science and Law believes that there is no obvious conflict between Apostille and the laws of our country, and legal obstacles do not exist. The "Certification Convention" can facilitate civil and commercial exchanges and will produce good practical results. At the same time, she also said that although there are some flaws in the Census Convention, there is no public security issue.
Mr. Hu Runtian from the Ministry of Civil Affairs discussed the impact and impact of joining the convention from the practical level, especially in the field of marriage and family. He said that at present, in the aspects of foreign marriage registration, adoption and inheritance, it is necessary to go to the civil affairs system for certification in terms of marital status certificate and personal identification, or to provide additional documents such as additional certificates.
Xu Guojian, a lawyer at Shanghai Boss & Young Law Firm, believes that scholars have adopted a false presumption of notarizing and certifying the documents, that is, prescribing the documents as false, and then seeking truth, instead of envisaging all the instruments. True, taking false documents as a case. Joining Apostille requires a change in this concept.
Mr. Sun Changgang, a lawyer from Beijing W & H Law Firm, based on his own experience in handling cases, believes that joining the Apostille will solve the cumbersome certification problems in practice from the source, bring convenience to practice, improve efficiency, reduce time and cost.
Mr. Li Chenyang from Shanghai Putuo Notary Office discussed the impact of joining the Apostille on existing practices from the perspective of the practice of consular certification. He believes that electronic certification can solve the problem that the certification efficiency in underdeveloped areas is difficult to improve.
At the closing ceremony, Professor He Qisheng gave a summary of the forum. He pointed out that this forum mainly discussed two issues, namely the necessity and feasibility of joining the Apostille and the problems and suggestions after joining the Apostille. During the meeting, delegates conducted full research and debate on various details. They expressed their views and reached a consensus to some extent: joining Apostille is not only an important measure for decentralization, but also conducive to reducing transnational personnel. Barriers to mobility and international trade. And for the problems that may exist in joining the convention, you can organize the power to conduct in-depth research.
Written by: Qian Zhenqiu
