Inter-district Civil And Commercial Judicial Assistance Legal Issues Research

This dissertation consists of 8 chapters as follows:Chapter 1: On the basis category of the interregional judicial assistance in civil andcommercial matters.In the first part of the chapter, the conception, the generation and the classificationof judicial assistance are expatiated. On this ground, the interregional judicial assistancein civil and commercial matters is defined, including the area of "interregional", the areaof "civil and commercial matters", what the acts of "the judicial assistance in civil andcommercial matters" refer to, and the definition of the behavioral agent etc. In thischapter, the theoretical and legal basis, as well as legal nature of the interregional judicialassistance in civil and commercial matters is explored and analyzed. The dissertationholds that in the legal nature, the interregional judicial assistance in civil and commercialmatters is neither the ordinary acts of procedure, nor the administrative acts, but thejudicial acts developed by the judicial power that the judicial organs exercise. As regardsto the theoretical basis of the interregional judicial assistance in civil and commercialmatters, there are mainly three academic doctrines: comitas gentium, the doctrine ofreciprocity, and the doctrine of legal obligations. The dissertation holds that the doctrineof legal obligations is more persuasive in the field of the interregional judicial assistancein civil and commercial matters, while the other two are chiefly employed to construe theacts of international judicial assistance. This chapter, by combining the legislativepractice of China and other composite legal district states, comes to conclude that thelegal basis of the interregional judicial assistance in civil and commercial matterscontains the constitutional sources, the uniform legislations of interregional judicialassistance of the states, the agreements of the interregional judicial assistance in civil andcommercial matters and the local legislations in the legal districts.Chapter 2: on the generation of the interregional judicial assistance in civil andcommercial matters by comparison and analysis.This chapter explores the formation of the structure of composite legal district inseveral representative states and regions which are composite legal district and the mainstudies of their interregional judicial assistance systems. And the dialectical relationshipof the co-existence of the uniform state sovereignty and the composite legal district in theinterregional judicial assistance in civil and commercial matters and the view that theindependent right of jurisdiction is the essential expression of the co-existence ofcomposite legal district are also demonstrated in this chapter, which concludes that theco-existence of the composite legal district in the states with uniform sovereignty is theprecondition and the fundamental reasons of the existence of the interregional judicialassistance in civil and commercial matters.Chapter 3: on the key factors which influence the development of the judicialassistance system in civil and commercial matters in China.The author holds that the level of integrity of the interregional judicial assistance incivil and commercial matters in China is affected by the factors as follows: the economicfactor, the coordinated extent of the interregional jurisdiction in civil and commercialmatters, the similarities and differences of the interregional legal culture and theapplication of reservation of public order. The relations between the interregional judicialassistance and the factors mentioned above, as well as the associated practice in effect arealso analyzed. Besides, the chapter further explores the ways of making the positiveeffect on the improvement of the interregional judicial assistance in civil and commercialmatters by exploiting the factors mentioned above.Chapter 4: on the research and studies as regards to the pattern selection of theinterregional judicial assistance system in civil and commercial matters.The patterns of judicial assistance include legislative pattern and enforcementpattern. (The former is usually the subject investigated when we discussing the judicialassistance.) In the first part of the chapter, the typical legislative pattern of judicialassistance that other composite legal district states in the world apply and the suggestionsfrom Chinese scholars on what pattern China is supposed to apply are expatiated andtheir merits and faults analyzed as well. On this ground, the author explores the particularissues that should be taken into consideration and the fundamental principles that shouldbe insisted on in the selection of legislative patterns of interregional judicial assistance inChina, following which the feasibility of the application of "separated legislative pattern","arrangement pattern" and the "model law pattern" in China is further discussed.Chapter 5 to Chapter 8: on the research on the concrete systems of theinterregional judicial assistance in civil and commercial matters in China, focusing on thediscussion as regards to the merits and faults and the improvement of the existentsystems.Each chapter analyzes the judicial assistance systems concerning the service of theinterregional judicial records in civil and commercial matters, the obtain of theinterregional evidences from abroad, the recognition and enforcement of the interregionaljudgments and the recognition and enforcement of the interregional arbitration awardsfrom the aspects of the fundamental theories of the system, the associated legislative andjudicial practice in the legal districts in China, the associated advanced legislation in theinternational society and the ways to be used to improve the associated system in Chinaetc.