Research On Contractual Jurisdiction Of Civil Procedures Involving Foreign Elements Of China

Contractual jurisdiction is the reflect of will autonomy in the international civil and commercial litigation. It plays an important role in the avoiding of conflict of jurisdiction and increasing the predicability of litigation itself, etc. Contractual jurisdiction, as important as personal jurisdiction and territorial jurisdiction, has been accepted as an world-wide recognized principle in the modern international community. Contractual jurisdiction of civil procedures involving foreign elements of China was born in the planned economy era, many drawbacks appear in today's market economy, the value orientation of its legislation and content are faced with many challenges. As a result, it was not only of great significance in theory but also quite valuable in the administration of justice that how to improve contractual jurisdiction system in our civil procedure law to embody the values of fairness, justice and efficiency better under the globalized society. The article does a quite thorough research into it and points out the shortcomings from the view of comparative law to give some constructive suggestions for the improvement of the existing system of contractual jurisdiction in our civil procedure law.The dissertation takes the specific issues from our country's legislation and judicial practice as a beginning, elaborating its intrinsic legal theoretical basis,value orientation. Then its origin and historical development are explored, taking the trend of international legislation and the judicial practice in our country into consideration, the article analyzes the challenges contractual jurisdiction of civil procedures involving foreign elements of China meets from the perspective of comparative law. Finally the author carries on the elaboration to the concrete issues of contractual jurisdiction ,analyses the disadvantage of the relevant system of China ,and puts forward some basic ideas and concrete suggestions perfected further.This paper consists of the preamble, the conclusion and the body which includes five parts.The introduction, based on the true case from the judicial practice, draws the reflections on the issues and the challenges we encounter,not only in theory but aslo in the judicial practice. The main leitmotiv and significance of the paper are pointed out.Part I elaborates the basic rationale for contractual jurisdiction which is the extension and embodiment of autonomy of will doctrine in the field of international civil and commercial disputes.It comes into being just because of the principle compromised between private law autonomy and the country's judicial sovereignty. The rule of autonomy of the will is its theoretical basis, justice and efficiency are its value orientation. The development of the system of agreement jurisdiction has a very positive significance for courts, the parties and the society.Part II introduces the historical evolution of contractual jurisdiction.The author analyzes the dual challenges we meet theoretically, as well as in the judicial practice under the conditions of market economy and puts forward the basic ideas to consummate the contractual jurisdiction system of our country. Economic rapid development of the world and struggle for human rights make accelerating to bring about contractual jurisdiction system. Our contractual jurisdiction system, born in the era of planned economy, is facing enormous challenges under the impact of economic globalization.Our domestic political and economic situation, cultural traditions and legal system as well as legislative purpose should be considered for perfecting our relevant legislation in the framework of the existing system to bring its value and function of contractual jurisdiction into full play. In addition, We should learn advanced legislation idea and practical experience from other states.Part III mainly analyzes the legal form and the scope of our contractual jurisdiction. Considering the legislative purpose and function of contractual jurisdiction system as well as the latest trend of international legislation, the article focuses on the disadvantage of the relevant system of China in legislation and judicial practice and comes out the related suggestions perfected further.Part IV discusses the essential legal effect of our foreign-related contractual jurisdiction system and its applicable law,legal effect is its core and the concrete embodiment of its value. The legal effect of contractual jurisdiction can impact on the parties, the courts and the recognition and enforcement of judgments.the article focuses on the lacks of the relevant system in China and arouses the perfect suggestionsPart V points out that the reasonable legal restrictions should be put on the contractual jurisdiction which may have momentous effects on litigants' rights and interests as well as state sovereignty and public interests. The reservation of public order, forum non conveniens doctrine, exclusive jurisdiction court are often adoped by the legislatures of various countries and the international conventions.However such reasonable restrictions are legislative blank in our country. It's urgent to legislate for urther improvement in many aspects.