Studies On Contractual Jurisdiction Of Civil Procedures Involving Foreigns Elements

Contractual jurisdiction is the expression of the party autonomy principle of civil procedures involving foreigns elements, and it is much significant for dealing with the conflicts in jurisdiction and assuring the foreseeability of the results of procedures. Nowadays most countries make the legislations and judgements, permitting the client to choose a court by agreement under certain condition. Hague Conference on Private International Law passed the Convention on Choice of Court Agreements on its 20th meeting on June 30th, 2005, which is much significant for dealing with the conflicts in jurisdiction of civil procedure involving foreigners elements. This thesis makes a comparative study on the legislations and practice of contractual jurisdiction in most countries, analyses the problems connected with contractual jurisdiction and aims at finding a right way for contractual jurisdiction in our country.This thesis consists of four chapters.Chapter One is the introduction of the system of contractual jurisdiction. It includes the origin and development, the jurisprudence analysis and the importance of contractual jurisdiction. It was believed that contractual jurisdiction was a negation to public policy, and it was harmful to the authority of judicature. It was not until the middle of the 20th century that most countries began to admit the validity of contractual jurisdiction. Contractual jurisdiction is a natural development and concert expression of the party autonomy of the will in the problems of jurisdiction. The right of the client to choose a court by agreement originates directly from the right of civil process choices. The admission of contractual jurisdiction is not only helpful to realize the justice and efficiency of procedures but also is favorable to assure the foreseeabitity of the results of the law application, so as to ensure the security of international trade, which is an inexorable demand of the development of international civil and commercial relation in depth.Chapter Two is on the problems of contractual jurisdiction. It includes the ways, the types and the range of contractual jurisdiction. The expressed jurisdiction agreement is an effective way of civil procedure involving foreigners elements, while the implied jurisdiction agreement is a kind of constructive right based on the doctrine of the most significant relationship in court. The latter can not be applied in the contractual jurisdiction of civil procedure involving foreigners elements. There are two types of contractual jurisdiction, that is, exclusive jurisdiction and inclusive jurisdiction. The range of contractual jurisdiction can be divided into subject, object and cases. As far as subject is concerned, the country, acting as the principle part, can enjoy the privilege and immunity, and whether the branch of a legal person is a principle part or not is decided by the court according to the laws of each country. As far as the object is concerned, the client should choose a court by agreement on the condition that it should be convenient for the court to work. The court should not be required relating to the case no matter whether it is at home or aboard. And extending the case range of contractual jurisdiction is much significant for dealing with the conflicts of civil procedure involving foreigners elements.Charter Three is on the validity of contractual jurisdiction. It includes the connotation, the restriction and application law of the validity. The validity of contractual jurisdiction is the legal binding force based on a legislation and effective contractual jurisdiction, including the validity of both clients, the validity of the court and the validity of the admission and execution of court decision. The realization of the validity is closely tied to a country's public policy, the principle of exclusive jurisdiction and forum non conveniens, the protection on the weak, and the justice of the agreement. The applicable law of the validity of contractual jurisdiction is lex fori and the law choose by the parties.Chapter Four is on the system of contractual jurisdiction in our country. It includes the present situation of the legislation, the drawback and the perfecting of contractual jurisdiction in our country. The rules for jurisdiction in our country is too simple, obscure and difficult to operate. Therefore the system of contractual jurisdiction can be perfected in legislative forms and contents. In form, we should unite the legislation and cancel the two-way system while the system and the stylistic rules and layout should be reformed. Contractual jurisdiction should play its role as an independent chapter in legislation. In content, we should add the forms of contractual jurisdiction, extend the application range of contractual jurisdiction, weaken the relationship between the case and the court choose by agreement, strengthen the reasonable restriction of contractual jurisdiction and abolish the unreasonable requirement to level jurisdiction.