Study On The Conflict And Coordination Of Civil And Commercial Jurisdiction Between Mainland And Hongkong

The special"one nation, two systems, three law families, four legal regions"phenomena had formed with the practice of the policy"One nation, Two systems". Meanwhile, the special situation brought about the interregional conflict of laws of civil and commercial jurisdiction. However, jurisdiction is the key issue in interregional civil procedure. One hand, the commencement of the procedural process and the choice of the substantive law are usually based on which legal region that the direct jurisdiction belong to. The other hand, the appropriate exercise of the indirect jurisdiction is crucial to the overseas recognition and enforcement of the judgment. Because of the existence of closer economic partnership and the frequent occurrence of trading contact between Mainland and Hong Kong, a fair and foresight jurisdiction system seems to be more necessary, which could provide a guideline for the litigants of the interregional civil and commercial legal relationship. The guideline should answer the following questions: if the dispute is settled by lawsuit, he should choose which court to prosecute or be sued, how to avoid the useless prosecution and the repetition of the procedure, how to guarantee the recognition and enforcement of the judgment. As a result, the coordination of the conflicts of civil and commercial jurisdiction between the mainland and Hong Kong seems to be a pressing and practical matter of the moment.On the foundation of the analysis about the present situation and the cause of the conflict of civil and commercial jurisdiction between the mainland and Hong Kong, the article emphatically elaborates the model and way of the coordination of the conflict of interregional civil and commercial jurisdiction with the expectation to be helpful for the solution of the conflict.Chapter 1: Introduction to the interregional conflict of laws. Started with the definition of the interregional conflict of laws, the article then introduces the characteristics of the interregional conflict of laws between mainland and Hong Kong under the policy of"One nation, Two systems", which decides the direction and basic point of the solution about the interregional conflict of laws in China. Further, the relationship between constitution and interregional conflict of law are analyzed. Mainland and Hong Kong respectively possess independent legislation and jurisdiction basis on < Constitution > and .And they have no common legislature and judicial authority as well. The relation may be a new point of view for this topic.Chapter 2: Analysis of civil and commercial jurisdiction between mainland and Hong Kong. This chapter is divided into four sections to deal with it, including the definition of the interregional civil and commercial jurisdiction, the analysis of conflicts of the direct jurisdiction, the analysis of conflicts of the indirect jurisdiction, the sense of coordination and settlement of the conflicts of interregional jurisdiction. First, the article introduces the definition of direct jurisdiction and indirect jurisdiction. Secondly, the article carries on a careful dissection to the content and characteristic of mainland and Hong Kong civil jurisdiction systems according to the existing legislation and judicial practices from the aspects of general jurisdiction, special jurisdiction, exclusive jurisdiction and agreement jurisdiction. And further, it analyzes the causes of these conflicts, including the differences on jurisdiction theories and the existing systems, the different definitions on the connector, the differences on the scope and content of the connector, and so on. Thirdly, started with the comparative study on the legislation about recognition and enforcement of the judgment of foreign courts, the article further analyzes the causes of the conflicts of indirect jurisdiction, including lack of common legal basis, the difference of the legal application of judicial review, the influence of public order reservation and so on. Finally, the article confirmed the profound signification of coordination and settlement about the conflicts of direct jurisdiction and indirect jurisdiction together, which is also the theory significance and practical significance of this topic.Chapter 3: The coordination of direct civil and commercial jurisdiction."other's good qualities could remedy one's own defects."First, the article analyzes the practices and experiences of Canada, European Union and the USA in dealing with interregional civil jurisdiction conflicts for reference and considers the current development in this field in China. The author eventually concludes that interregional agreement is the best model to settle the conflict of laws between mainland and Hong Kong at the moment. Secondly, the article confirmed the feasibility of the model of interregional agreement. Further, the article put forward suggestions at eight aspects, they are: 1.The overall mentality of the agreement. A consultation on judicial assistance should be carried on between Supreme People's Court and representatives of Hong Kong. And then, the arrangement should be promulgated by Supreme People's Court through judicial interpretation in the mainland and also be implemented by Hong Kong. 2. The legislation aspect: the significance of the article 19 in . 3. The policy aspect: three basic principles of the agreement, they are: the principle of"One nation, Two systems", the principle of be advantageous to the litigants, the principle of opposition of"parallel proceeding"and"the ne bis in idem". 4.The rule aspect: four rules for regulating the "parallel proceedings", they are: the establishment of the rule of the first court wised principle, the establishment of the rule of forum non convenience and convenient litigation, the establishment of the rule of transfer jurisdiction, the expansion of the application of agreement jurisdiction.5.The standard aspect: the unity of five jurisdiction rules: standardize the general jurisdiction, special jurisdiction, exclusive jurisdiction, agreement jurisdiction to avoid the conflict among the jurisdiction rules. 6. Black list-the forbidden rules of jurisdiction.7.The avoidance of passive jurisdiction that is to add necessary jurisdiction. 8. The application sequence among those parts above.Chapter 4: The coordination of indirect civil and commercial jurisdiction. This chapter consists of three topics: the relation of direct and indirect civil and commercial jurisdiction, the legal application of judicial review of indirect jurisdiction, the legislation plan of the standard of judicial review of indirect jurisdiction. First, the article elaborates the close relation of direct and indirect civil and commercial jurisdiction, and then concludes the necessity of taking the two kinds of conflicts into consideration together. The author suggests that direct and indirect jurisdiction should been coordinated in interregional jurisdiction agreement together, which makes sure that the resolve in different conflicts are regarded as an organic whole. Secondly, the article explores and analyzes the advantage and shortage of the foreign legislation status quo on the legal application of the judicial review of the recognition and enforcement of foreign judgments. The author suggests as guidelines, we should actively refer to the successful experiences of the draft Hague Convention on Jurisdiction and so as to promote the smooth development of interregional civil and commercial area in China. Finally, it had formulated several rational and foresighted rules on indirect jurisdiction between foreign courts in .In view of that, the author puts forward the legislation plan of regulating the review standard of indirect jurisdiction in the interregional agreement.