The Perfection Of Contractual Jurisdiction System

Civil proceeding is defined as a course of settlement on the disputes between litigants, which demands that the element of"private"shall impregnate abundantly in civil procedure. As in China, during the transformation of litigation mode from inquisitorial to adversarial, to ensure the litigants'autonomic will and to legitimatize their sufficent rights to participate in, to control , to lead, to choose and to alternate the procedure shall be recognized as the original intention in the transformation. Contractual jurisdiction qualifies the litigants with right to select a court under mutual consent to settle their disputes, which certainly manifests the right to choose the procedure. This choice of procedure not only pefects the legal jurisdiction and reduce the harm of the"parochialism"to the juridical justice, but also help to settle their disputes effectively, sufficently and economically, so as to save the judicial resources and actualize the principle of"convenient for the court to try the case and for the litigant to sue". In the year of 2008, the civil procedure law was amended in China, in which some systems were modified in a large extent, but contractual jurisdiction was excluded and ignored, leaving the jurisdiction conflicts and parochialism unsettled. Therefore, perfection of contractual jurisdiction is desiderated and significant at present. This article exerts itself to find the essential value of contractual jursdiction system by studying its relevant theoretical basis, summarizes the characteristics of the related system in some countries in the two main legal system and international treaties in a method of comparative analysis, in order to perfect our own system by proper adoption. The article contains three chapters:In chapter one, the writter perspicuously sums up the general direction and rule of modification for the perfection of the system from the expatiation on three principles: the Autonomy of the Will, Procedural Justice and Benefit, and the Principle of Procedural Subjectivity.The legislative exemplifications on contractual jurisdiction in civil law system, common law system and international treaties are set forth respectively in the second chapter. With an explicit explanation on their features, the writter provides a series of substantial clauses for the perfection of contractual jurisdiction in China.Through the analysis of the shortages of the system in China, the last chapter expatiates on how to perfect the system in two aspects, the scale and the restriction of application.Then it puts forward reasonable suggestions on the criterion for ascertaining acquiescent contractual jurisdiction and its procedural arangement in a single section.