The Application Of The Doctrine Of Forum Non-conveniens In China

The doctrine of forum non-conveniens is an effective approach to solving the problem of positive conflict of international civil and commercial jurisdiction, so it has become a big concern in the world. It refers to the situation in which a national court, which has the jurisdiction to adjudicate the international civil and commercial dispute, but considering the interests of the litigants, the court and the country, refuses to exercise the jurisdiction if it thinks it is more convenient and appropriate for the foreign court to try this lawsuit.The doctrine is obviously positive. It can relieve the conflict of international civil and commercial jurisdiction, balance the lawsuit interest rights and interests between the plaintiff and the defendant and reduce the workload of the court. But because of its flexibility, it has lots of disadvantages in theory and in practice. At present, the manner of it in law circle is quite different in its adoption.The author tries to introduce its origin and development, research into its theoretical basis, state its positive significance and function, and analyses its different patterns in various countries. At last, the author puts forward a construction of the enforcement of the doctrine of forum non-convenience in China.The paper is divided into four parts.Part one: This part introduces the concepts and theoretical basis of the doctrine. First, compare several different concepts and define the doctrine of forum non-conveniens all-sidedly. And then summarize the characteristics .In addition ,the author expounds its origin and development in countries of common law and civil law and points out its wide acceptance in the countries .Eventually , the author researches into its theoretical basis .Although the doctrine of forum non-conveniens mainly prevails in the common law countries ,it originated in some deep theories. The existence and development of the doctrine is based on some theories ,especially the theory of international comity ,the most significant relationship and power of discretionary. Further more, analyze its reasonable and scientific application in theory.Part two: This part compares and analyzes the function of the doctrine and emphasizes the function in the international coordinating, justice, reasonable lawsuit and judicial assistance.At the same time, it puts forward the negative effects of the doctrine ,and makes an objective comment on it.Part three: This part introduces the application of the doctrine of forum non-conveniens in different countries in detail, especially compares and analyzes its application patterns in common law countries and civil law countries. It stresses three approaches: more suitable forum approach in England, most suitable forum approach in America and evidently improper approach in Australia. It also analyzes the similarities and differences of them .Finally, it focuses on the limited practice of the doctrine and the reasons for the restricted application in the civil law countries.Part four: This part is the focus of the paper. First, the author introduces the different attitudes towards the doctrine in law circle in China, and points out most scholars and judicial professionals support its adoption. Then, the author elaborates the necessity of establishing the doctrine according to the aspects such as excessive jurisdiction and the positive roles of the doctrine. Next , the author further states the possibility of its application in China .in the following aspects : the legislative foundation laid by the"two convenience"principles of civil procedure law of PRC ,the adoption of judicial practice , the need of inter-regional private law and the breakthrough and trial of civil legislation. Finally, the author specifically puts forward the value orientation, the choice of patterns, the starting of process, standard conditions and means of adjudication about the application of the doctrine in China. Besides, the author analyzes and reveals some situations where the doctrine must not be applied and some problem to be paid attention to in the hope that the doctrine can be made full use of in China.