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Agreed Jurisdiction research in China's foreign-related civil action

Author: ZhuJunHua
Tutor: ChenLi
School: Fudan University
Course: Legal
Keywords: International Civil Procedure Jurisdiction Jurisdiction by agreement Autonomy
CLC: D925.1
Type: Master's thesis
Year: 2010
Downloads: 113
Quote: 0
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Abstract


International civil litigation in the jurisdiction by agreement of the parties \Currently, the vast majority of countries through legislation and case law, to allow the parties to choose a court of competent jurisdiction in the agreement under certain conditions. June 30, 2005, the Hague Conference on Private International Law in its 20th Diplomatic Conference adopted Convention on Choice of Court Agreements, has far-reaching significance of the settlement of international civil jurisdiction agreement jurisdictional conflicts. In this paper, the contents of the 2005 Convention on Choice of Court Agreements, legislation and practice, a comparative study of the jurisdiction of national agreement, author of our foreign agreements under the jurisdiction of the form of elaborate analysis of the specific issues of the scope, effectiveness and limitations for the system and try to perfect to provide specific and constructive comments. Proceed from the origin of the system of foreign jurisdiction by agreement, the the foreign agreements under the jurisdiction of the legal basis and institutional value; foreign agreements under the jurisdiction of the way, the type, scope. Foreign jurisdiction by agreement is a natural extension of the principle of party autonomy on the issue of the International Civil Procedure Jurisdiction and concrete manifestation of the autonomy of private law, the product of the principle of freedom of contract and the national judicial sovereignty and the principle of mutual compromise. The principle of autonomy is the theoretical foundation, just its value orientation, the establishment and development of the system has a positive and practical significance of the court, the parties and society. The paper pointed out that the current Civil Procedure Law on foreign agreements under the jurisdiction of law is too general provisions on many issues are unclear, the lack of maneuverability. The content of legislation, the agreement under the jurisdiction of the form should be relaxed, to broaden the scope of jurisdiction by the agreement, dilute the agreement between the court and the case of ties, strengthen reasonable restrictions under the jurisdiction of the agreement, cancel improper level jurisdiction. Mean there are two kinds of express agreement of jurisdiction and the jurisdiction of the tacit agreement express agreement, the jurisdiction of the jurisdiction of the agreement should not be limited to writing. As long as there is no forum non conveniens, regardless of the agreement between the parties to choose the national court or foreign court selected court cases should not require actual contact. Agreements under the jurisdiction of the parties may in addition to the exclusive jurisdiction of the foreign-related civil and commercial disputes. Effective jurisdiction not only the agreement, either party can not discard, and should be respected by national courts. If there are no parties express agreement is not exclusive, so effective exclusive jurisdiction by agreement. Our lack of reasonable restrictions on the foreign jurisdiction by agreement, the urgent need to increase the public policy shall not be in violation of the principle of the system, and to establish the principle of forum non conveniens and weak protection principles, to redefine the scope of the exclusive jurisdiction to change the level of mandatory jurisdiction, to make it more has elasticity.

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CLC: > Political, legal > Legal > Chinese law > Procedural Law > Civil Procedure Law
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