Keywords: perfection of foreign-related jurisdiction in civil litigation
I. Introduction
China has become a member of wto, with different advantages and disadvantages, but one thing is certain, that is, the civil and commercial exchanges between China and the international community will become more and more frequent, and the result will inevitably be more and more foreign-related civil and commercial disputes. How to handle these disputes correctly will directly affect China's international image and internationalization process. There is a significant difference between the legal handling of foreign-related civil and commercial cases and domestic civil and commercial cases: the handling of domestic civil and commercial cases mainly focuses on ascertaining the facts and applying the law, while the handling of foreign-related civil and commercial cases, in addition to the above matters, must first solve the jurisdiction problem. Because in foreign-related civil and commercial disputes, at least one of the subjects, objects or legal facts of civil legal relations involves foreign-related factors, the provisions of laws in various countries on the basis of jurisdiction are inconsistent, or even completely opposite. Therefore, in foreign-related civil and commercial disputes, whether the court accepting the case has jurisdiction has become one of the focuses of disputes among the parties. A saying of foreign lawyers: "In foreign-related litigation, jurisdiction should be dealt with first, then the restriction and application of law, and finally the discussion of facts and laws" reflects the importance of foreign-related civil jurisdiction from one side.
Two, the basis of China's foreign-related civil litigation jurisdiction
The foundation of a country's foreign-related civil jurisdiction is the core of a country's foreign-related civil litigation jurisdiction system. The determination of a country's jurisdiction over foreign-related civil cases depends on the basis of its jurisdiction. The so-called jurisdiction basis refers to the reason why a country's courts have the right to try civil and commercial cases with foreign-related factors, and it is a certain connection between the legal relationship of foreign-related civil and commercial cases and the country where the courts are located. Based on the principle of sovereignty, countries can grant jurisdiction over foreign-related civil and commercial cases to their own courts for different reasons. Therefore, the basis of foreign-related civil jurisdiction of courts in different countries is different, even completely conflicting. The basis of Chinese courts' foreign-related civil jurisdiction is mainly stipulated in People's Republic of China (PRC) Civil Procedure Law, People's Republic of China (PRC) Maritime Procedure Law, relevant judicial interpretations of the Supreme Court and other laws and regulations. To sum up, the basis of China's foreign-related civil litigation jurisdiction mainly includes the following aspects:
(1) Jurisdiction based on "region".
Jurisdiction based on "region", also known as territorial jurisdiction, means that the jurisdiction of foreign-related civil cases is based on a certain region, and the courts belonging to that region exercise jurisdiction. This is one of the bases of jurisdiction generally adopted by all countries in the world. It is also the main basis of China's foreign-related civil jurisdiction. As the basis of China's foreign-related civil jurisdiction, "region" mainly includes the following factors:
1, the defendant's domicile or habitual residence
The defendant's domicile refers to the defendant's domicile in China. The habitual residence refers to the place where the defendant left his residence and finally lived continuously for one year. According to Article 22 of the Civil Procedure Law of People's Republic of China (PRC), a civil lawsuit brought against a citizen, legal person or other organization shall be under the jurisdiction of the people's court where the defendant is domiciled. When a citizen is a defendant, if his domicile is inconsistent with his habitual residence, it shall be under the jurisdiction of the people's court of his habitual residence. According to Article 237 of the Law, the above provisions are not only applicable to domestic civil litigation, but also the basis for Chinese courts to exercise foreign-related civil jurisdiction. It is worth noting that the plaintiff's domicile in some special circumstances (mainly refers to the lawsuit about identity relationship filed against people who do not live in People's Republic of China (PRC)) can also be the basis for Chinese courts to exercise foreign-related civil jurisdiction.
2. The location of the subject matter or the location of the defendant's property
The international community generally accepts the location of the subject matter or the defendant's property as the basis for the court to exercise its jurisdiction. Our country is no exception. In China, this principle is mainly embodied in Article 243rd of the Civil Procedure Law of People's Republic of China (PRC). Through the investigation of this paper, it is not difficult to find that taking the location of the subject matter or the location of the property as the basis for the courts to exercise jurisdiction in China is subject to the following restrictions: ① The application should be limited to the defendant's domicile, and only when the defendant has no domicile in China can the subject matter or the defendant's property be allowed as the basis for jurisdiction; (2) The above-mentioned "region" as the basis of jurisdiction only applies to contract disputes or other property rights disputes, that is to say, personal disputes without property content, such as disputes over personality, identity rights and parental rights, can only be based on domicile; (3) Jurisdiction is only applicable to disputes arising from tangible property rights (including movable and immovable property rights), not to disputes arising from intangible property; (4) Taking the location of the defendant's property as the basis of jurisdiction also emphasizes that the property can be seized before it can be applied. It should also mean that if the defendant's property in the country where the court intends to exercise jurisdiction cannot be seized according to law or the value is too low to be lower than the amount of the subject matter in dispute, it is not appropriate to use the location of the property as the basis for exercising jurisdiction.
3. The place where the legal facts occurred
According to Article 243rd of the Civil Procedure Law of People's Republic of China (PRC) and other laws and regulations and relevant judicial interpretations, the place where the legal facts occur, as the basis for the courts in China to exercise jurisdiction, generally occurs in the fields of contracts, torts and other debt relations, and generally does not apply to disputes of the nature of property rights. The place where the legal facts occur not only refers to the place where the behavior occurs, but also includes the result of the behavior. As long as one of the acts or results occurs in our country, it is considered that our courts have jurisdiction. Generally speaking, the place where legal facts occur includes the place where the contract was signed, the place where the contract was performed, the place where the infringement occurred, and the place where the infringement occurred. It must also be made clear that taking the place where legal facts occur as the basis of China's foreign-related jurisdiction is based on the premise that the defendant has no domicile in China.
In short, the territorial jurisdiction system determined by the current laws in China is a legislative model based on the domicile or habitual residence, supplemented by the location of the subject matter or property and the place where the legal facts occur.
(2) Jurisdiction based on "the will of the parties"
Jurisdiction based on "the will of the parties" is also called agreement jurisdiction. It refers to a system in which the parties to a foreign-related civil lawsuit decide which country's court shall have jurisdiction over the dispute through agreement before or after the dispute occurs, so that the selected court can enjoy exclusive jurisdiction over the disputed cases between the two parties. Articles 244 and 245 of the Civil Procedure Law of People's Republic of China (PRC) clearly stipulate "express agreement jurisdiction" and "implied agreement jurisdiction" respectively. This kind of jurisdiction is essentially a natural extension of the principle of "freedom of contract" in the field of private international law. However, we must note that our country's laws not only confirm the jurisdiction effect of the agreement, but also make many restrictive provisions on it, mainly in the following aspects: ① controversial restrictions. Not all disputes can be governed by agreement, only cases involving property nature and contract cases can be applied. In other words, personal disputes or other disputes do not apply; (2) the restriction of "actual contact", that is, the court of jurisdiction chosen by both parties must have actual contact with the disputed facts of the case; (3) Due to the limitation of form, the jurisdiction agreement can only be made in written or implied form, and oral or other forms of jurisdiction agreement are invalid; (4) The jurisdiction by agreement shall not violate the provisions of China law on exclusive jurisdiction and hierarchical jurisdiction.
(3) Jurisdiction based on "national interests"
Jurisdiction based on "national interests" is usually called "exclusive jurisdiction" in theory. Among all kinds of disputes in social life, some disputes are closely related to the important political interests of a country, the interests of state institutions or the public policies of the country. If it is not stipulated that it enjoys exclusive jurisdiction, the state may lose the possibility of protecting relevant rights and interests and its sovereignty may be challenged. Therefore, almost all countries have stipulated exclusive jurisdiction. So is our country. The provisions on exclusive jurisdiction in China are mainly embodied in Articles and of the Civil Procedure Law of People's Republic of China (PRC) and Article of the Special Maritime Procedure Law of People's Republic of China (PRC). To sum up, there are mainly the following situations: ①. Lawsuits brought by real estate disputes; (2) Disputes arising from the operation of coastal ports; (3) Lawsuits brought due to inheritance disputes; (4) Lawsuits arising from disputes arising from the performance of Sino-foreign joint venture contracts, Sino-foreign cooperative operation contracts and Sino-foreign cooperative exploration and development contracts in People's Republic of China (PRC); (5) Litigation on pollution damage in the sea area caused by the discharge, leakage and dumping of oil or other harmful substances by ships, offshore production operations or ship dismantling and repairing operations; ⑥ Lawsuits arising from disputes over contracts for marine exploration and development performed in the territory of People's Republic of China (PRC) and the sea areas with jurisdiction shall be under the jurisdiction of the maritime court of the place where the contracts are performed.
To sum up, the jurisdiction of foreign-related civil litigation in China must be determined in the following order: ① exclusive jurisdiction; (2) agreed jurisdiction; The jurisdiction of the court of the defendant's domicile or habitual residence; (4) the location of the subject matter or property and the jurisdiction of the court where the legal facts occur. The above order is legally binding. Only when there is no jurisdiction basis for the first order can the jurisdiction court be determined according to the jurisdiction basis for the second order, and so on. If there are multiple courts with jurisdiction in the same order, each court has jurisdiction.
Thirdly, the perfection of China's foreign-related civil litigation jurisdiction system.
Judicial power is the embodiment of national sovereignty in judicial trial. Therefore, in order to safeguard national sovereignty, every country wants to expand its jurisdiction as much as possible, which will inevitably lead to the conflict between jurisdiction and Israel. The conflict of foreign-related jurisdiction is not only conducive to the settlement of disputes between the parties, but also to international civil and commercial exchanges and cooperation, and even leads to comprehensive contradictions and oppositions between countries, thus affecting the stability of international relations. Therefore, when formulating and perfecting their own jurisdiction system of foreign-related civil litigation, countries should not only proceed from their own interests, but also limit their jurisdiction to a certain extent based on the principle of international comity, so as to minimize the adverse consequences caused by jurisdiction conflicts. China's accession to the WTO means the beginning or deepening of all-round cooperation between China and the international community. In the perfection of the jurisdiction system of foreign-related civil litigation, we should adhere to the principle of safeguarding national sovereignty and minimizing conflicts, and make necessary adjustments and improvements to China's jurisdiction system of foreign-related civil litigation with reference to relevant international treaties or international practices and some mature practices of developed countries to meet the legal requirements after China's entry into WTO. The author believes that the perfection of China's foreign-related civil litigation jurisdiction system should at least include the following aspects:
(a), standardize the residence confirmation system. Taking the defendant's domicile as the basis of jurisdiction is a common method adopted by all countries. However, different countries have different systems to confirm the relevant residence. In the theoretical circle, the determination of residence is mainly composed of two factors. First, the intention of permanent residence; The second is the fact of long-term residence. In China, domicile refers to the domicile of the party concerned. Not to mention that the household registration system is unique to China, and there is no corresponding legal concept in other countries. As far as the development trend of China's current household registration system is concerned, China's household registration system is constantly softening. It can be predicted that in the near future, the household registration system will cease to exist and become a rootless source based on the location of household registration. From the perspective of international legislative practice, since the 1950s, there has also been a trend of replacing residence with habitual residence. Morris once pointed out: "It is possible that if the domicile cannot be perfected well, the habitual residence will eventually replace it as a connecting factor and a jurisdictional factor." In view of the above reasons, the current system of confirming residence in China has not adapted to the requirements of the times. It is necessary to re-establish the criteria for determining residence in China. The author thinks that the Inter-American Convention on the Residence of Natural Persons in Private International Law, signed by American countries in Montevideo in May 1979, has a good reference significance for perfecting the residence confirmation system in China. Article 2 of the Convention stipulates that the domicile of a natural person shall be confirmed in the following order: 1, the location of his habitual residence; 2. The location of its main office; 3. If there is no such place, its simple residence; 4. Where are people without a simple place to live?
(2) Apply the jurisdiction of the agreement to the maximum extent. Jurisdiction by agreement has many advantages in solving foreign-related civil disputes. First of all, agreement jurisdiction is the most convenient and effective way to solve the active conflict of jurisdiction; Secondly, the jurisdiction of the agreement is conducive to the reasonable foresight of the parties' dispute handling; Third, the jurisdiction of the agreement facilitates the final execution of the judgment. Because the court chosen by agreement is usually the court trusted by the parties, and the applicable law of this court is generally familiar to both parties, these factors are conducive to the parties' automatic execution of the court's judgment; Fourth, the jurisdiction by agreement is generally accepted all over the world. 1965 article 5, paragraph 1 of the Hague convention on the choice of court stipulates: "unless otherwise agreed by the parties, only the selected court shall have jurisdiction". However, Article 4 of the preliminary draft of the Convention on International Jurisdiction and the Validity of Foreign Judgments in Civil and Commercial Cases put forward by the Permanent Bureau of The Hague Conference on Private International Law 1997 stipulates the form of the agreement. This article stipulates that a jurisdiction agreement agreed by both parties can be reached in the following ways: a. Any other means of communication proved in writing or in writing; Or b, oral and confirmed in writing or any other communication method that can be proved in writing; Or c, in line with the usual habits of the parties, or they realize or should realize that in a particular trade or related business, this form is the form that the parties usually abide by for contracts of the same nature. American Restatement of the Second Conflict of Laws, Model Law on Choice of Court, Italian Private International Law System Reform Act and Japanese Civil Procedure Law also have provisions similar to the above conventions or drafts. Comparatively speaking, there are too many restrictions on the jurisdiction by agreement in China, which is not conducive to giving full play to the positive role of jurisdiction by agreement. Accordingly, the author believes that the key to perfecting the jurisdiction system of China's foreign-related civil litigation is to minimize the improper restrictions on the jurisdiction of the agreement, mainly in the following aspects:
1. Extend the nature of disputes under the jurisdiction of the agreement to all disputes except exclusive jurisdiction. As long as it does not belong to the exclusive jurisdiction, it is allowed to be governed by agreement, but it cannot be limited to disputes of a property nature:
2. Expand the form of "jurisdiction agreement" to written form, oral form and all other reasonable forms, instead of being limited to written form and implied form. This is not only the requirement of coordinating with international common practices, but also the objective requirement of coordinating China's domestic laws. Because the "jurisdiction agreement" is a contract in the final analysis, whether it is a clause in the contract or a formal independent agreement, and China's "Contract Law" clearly stipulates that the form of a contract can be written, oral or other forms. Of course, the "jurisdiction agreement" should also be established orally or in other forms. Furthermore, China's current laws allow the effect of implied agreements with weak formal meaning and deny oral jurisdiction agreements, which is also untenable in jurisprudence.
(3) Establish the principle of the jurisdiction of the first-level court. In addition to agreement jurisdiction, exclusive jurisdiction and territorial jurisdiction will also have the problem of "parallel litigation" because of the different jurisdictional basis stipulated by national laws. The so-called parallel litigation, also known as "double litigation", includes the following two situations: one is the litigation of the same party, that is, the same plaintiff brings a lawsuit against the same defendant in domestic and foreign courts for the same dispute; The other is the lawsuit of the other party, that is, the plaintiff in the domestic court becomes the defendant in the foreign court for the same litigation object. The jurisdiction conflict caused by parallel litigation is the most common situation in the jurisdiction conflict of foreign-related civil litigation. The so-called "principle of court jurisdiction that accepts cases first" means that in the event of parallel litigation, in principle, the court that accepts cases first should exercise trial jurisdiction. There is no provision on the determination of parallel litigation jurisdiction in our legislation. In judicial practice, the handling of this issue is mainly based on Articles 15 and 306 of Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC) issued by the Supreme Court 1992. Article 15 stipulates: "One of the citizens of China lives abroad and the other lives in China. No matter which party brings a divorce lawsuit to the people's court, the people's court at the domicile of the domestic party has jurisdiction. If a foreign party brings a lawsuit to the national court of its domicile and a domestic party brings a lawsuit to the people's court, the sued people's court has jurisdiction. " Article 306 stipulates: "People's Republic of China (PRC) courts and foreign courts have jurisdiction. If one party brings a suit in a foreign court and the other party brings a suit in a people's court in People's Republic of China (PRC), the people's court can accept it." . After the judgment, if a foreign court applies or the parties request the people's court to recognize and enforce the judgment or ruling made by a foreign court in this case, it shall not be allowed, unless it is otherwise stipulated in an international treaty that both parties jointly participate in or sign. "It can be seen that China's judicial practice affirms parallel litigation and unilaterally emphasizes the jurisdiction of domestic courts. This legal arrangement is unreasonable in practice and theory. For example, it is not in harmony with the parallel litigation system in domestic civil litigation (parallel litigation is prohibited in China); It is not conducive to the protection of the rights of the parties and the stability of international civil and commercial relations; Waste national litigation resources and increase the litigation burden of the parties; It is not conducive to the smooth progress of international judicial assistance and so on. Moreover, this provision runs counter to the international common practice of handling parallel litigation, and also contradicts the treaty practice of parallel litigation between China and other countries. It can be seen that the jurisdiction system of parallel litigation in China is extremely imperfect. The key to perfecting parallel litigation is to adhere to the practice generally accepted by the international community when dealing with such conflicts, that is, to establish the jurisdiction principle of the court that receives the complaint first.
(4) Establish the principles of "inconvenient court" and "convenient". The so-called "inconvenient court" principle refers to the court that has jurisdiction over foreign-related civil cases. Because it is seriously inconvenient to hear the case itself, it refuses to exercise jurisdiction and allows the plaintiff to file a lawsuit in another more convenient court. The principle of "convenience" means that when there is no jurisdiction over a specific foreign-related case according to the legislative provisions of the jurisdiction country, and the parties urgently demand legal relief in that country because of the convenience of litigation, the competent court should decide that the country enjoys trial jurisdiction from the perspective of convenience for the parties. There is no such provision in our legislation about these two principles. But in fact, these two principles are completely in line with the basic starting point of determining jurisdiction in China-the principle of convenience (even if the court exercises jurisdiction, it is convenient for the parties to sue). In addition, these two principles have been generally recognized internationally. In addition, these two principles have been applied in China's judicial practice. For example, on February 27th, 1983, 1983, the Ministry of Foreign Affairs, the Supreme People's Court, the Ministry of Civil Affairs, the Ministry of Justice, and the Overseas Chinese Affairs Office of the State Council jointly promulgated the Provisions on Handling Marriage Issues by China's Embassies and Consulates Abroad, in which the third paragraph of Article 2 stipulates: "Both husband and wife are overseas Chinese living abroad, and if they want a divorce, they should, in principle, apply to the relevant authorities in their place of residence. The same article stipulates: "A divorce case of a person who originally registered a marriage or held a marriage ceremony in a foreign marriage registry shall not be accepted in China". This provision actually adopts the principle of "inconvenient court". Therefore, it is reasonable to establish the principles of "inconvenient court" and "convenient" in foreign-related jurisdiction no matter from the memory value orientation of law, judicial practice or international legislative practice.
[References]
① Study on Jurisdiction of Foreign Maritime Litigation in China, Zhang Xiaomei, Application of Law, July 2000.
(2) On the conflict of jurisdiction in foreign-related civil cases and its solution, Huang Songyou, Application of law, September 2000.
③ Selected Papers on Private International Law, Ma Hanbao, Taiwan Province Province, Wu Nan Book Publishing Company, 1984.