Theoretical and practical aspects on the procedure of recognition and execution of the foreign judgments in Private International Law
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StatusThe thesis was presented on the 12 May, 2007Approved by NCAA on the 20 September, 2007 Abstract – 0.44 Mb / in romanianThesisCZU 341.98 : 341.981
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Keywords
international private law; international civil process; conflict of laws; conflict of jurisdictions; foreign judgment; the origin of the foreign judgment; the object and the nature of the foreign judgment; provisional and conservative measures in the international private law; substantial efficiency; compulsory execution of the judgment; factual effect; the intrinsic and extrinsic aspects of the probative force; executory force; the extinctive limitation as an substantial or procedural issue; applicable law to the extinctive limitation; conditions of the international regularity; control criterions; jurisdictional competence; exclusive competence; conventional prorogation of the competence; irrevocable and executorial character of the foreign judgment; public order: substance and procedure; the condition of the mutuality; law fraud; lis alibi pendens; voluntary recognition; extrajudicial recognition; judicial recognition; exequatur suit; obtaining of the exequatur: conditions and procedure; rejection reasons; concerning the recognition and execution of the foreign judgmentSummary
During the last decades the qualitative changes of the private international law are tightly bound with the development of the international economic relations and of all relations with a foreign element have brought about reorientations in the doctrine and practice. The new changes of conceptions reflected in the court practice and in the continuous improvement of the laws naturally have caused concerns in the research of the procedure of recognition and execution of the foreign judgments by the legislature of the Republic of Moldova. This research is an attempt to make a complex scientific analysis of the phenomenon both from the theoretical and practical points of view.
Taking in account the topical interest of the theme, the complexity and multilateral character of this research, I have set myself as an object a complex research of stating the legislation of the states in the field of recognition and execution of the foreign judgments, of the means of implementation of the international conventions, of the mechanisms and national legal instruments that are to be applied in order to protect the rights and obligations of the participants in the international circuit.
As an object purposed, the situations in which the foreign judgments may be estimated are multiple. For execution considered having the most important and complex effect, a special procedure known as exequatur was instituted in our legislation. But, when in a country one refers to the foreign judgment in order to estimate a legal situation or of a right accrued from the respective judgment, the problem of execution is not always posed. Sometimes, the foreign judgments cannot be executed, for example non-property judgments, but their number has grown considerably, especially in the field of family relations. Regardless of the nature and the object of the judgment, to be valid on the territory of the other state, it must be recognized.
The interest in delimitation of the matter of recognition of execution has grown rapidly during the last decades and this is reflected in the acts of private international law, in the new codes of civil procedure, in the international conventions, in the court practice and in the doctrine. Although, it is not a novelty internationally, the regulation of the institution of recognition and execution of the foreign judgments is rather new in the laws of the Republic of Moldova. This research is partly to fill up this gap; our contribution results in the novel character through the delimitation and clear and unambiguous classification of the terms and notions used in the text. Thus, already from the structure of the thesis and the names of the chapters we may understand clearly what aspects are suggested to be examined. This helps us to avoid the amalgamation of the perceptions and manifestations, which some researchers use, describing the institution of recognition and execution of the foreign judgments. In each chapter, which has research of a strictly defined problem as its object, using the same method I proceeded to the accurate description of all relevant legal aspects for the theme to be researched.
In the framework of the brief analysis of the methodological and the theoretical scientific base, we shout point out that all these methods were used as a methodological totality, comprising the newest methods and research techniques.
The arguments invoked and conclusions that have been made from the complex analysis are based first of all on the national and international legal regulations as well as on the theses of the legal scholars. Basing on the general principle, according to which the practice is a unique criteria of verification of any hypothesis and theory, the theoretical and scientific conclusions formulated pursuant to the results of the research are supported by the national and international practice, thus acquiring new dimensions, which I hope will be useful in the process of studying the institution of recognition and execution of the foreign judgments.
Oficial Reviewers
- Eugenia Cojocari
doctor habilitat, professor, Moldova State University - Ioan Macovei
doctor în drept, prof. univ, Universitatea „Al. I. Cuza”, Iaşi, România - Augustin Fuerea
doctor în drept, prof. univ, Universitatea din Bucureşti, România
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