The Application Of The Doctrine Of Forum Non Conveniens In China

The doctrine of Forum Non Conveniens is not only a principle applied widelyin the common law system but also applied gradually in the civil law system with thedevelopment of international civil and commercial exchanges, whose existingpurpose is to solve the positive jurisdictional conflicts in international civillitigations. The biggest striking feature of the doctrine of Forum Non Conveniens isits flexibility which embodies the discretionary power of the judge sufficiently.Based on this striking feature of the doctrine of Forum Non Conveniens, there are agreat dispute between the theory circle and the practice circle whether the doctrine ofForum Non Conveniens can be applied in China. A few Chinese scholars disapprovethat the doctrine of Forum Non Conveniens can be applied at present in Chinabecause the current judicial environment is not appropriate for applying this doctrine.But most scholars approve that this doctrine can be applied now in China, especiallyin the year of2012when the Civil Procedural Law of PRC was amended, the articleof the doctrine of Forum Non Conveniens embodied in Article496of2012theExpert Proposal Draft of the Civil Litigation Law of PRC., though it is not passedfinally, it also shows the positive attitude of China legislature toward applying thisdoctrine in China. This thesis mainly adopts the methods of documentary analysis,historical study and comparative analysis to research and analyze the theories andpractices of the doctrine of Forum Non Conveniens in the civil law countries and thecommon law countries, and combines current legislating situation in the PRC todiscuss the necessities and feasibilities of introducing the doctrine of Forum NonConveniens to the PRC.，and offer proposals to add the doctrine of Forum NonConveniens to the Civil Litigation Law of PRC finally.The thesis is divided into three parts: Part one mainly introduces the conceptionof the doctrine of Forum Non Conveniens and various viewpoints of the scholarshome and abroad about the conception of the doctrine of Forum Non Conveniens,then traces back its origination and analyze the theoretical basis of the doctrine ofForum Non Conveniens: the principle of International Comity, the principle ofclosest connection and the theory of discretional power.Part two focuses on introducing the application of the doctrine of Forum NonConveniens in two legal system countries in the world. There are mainly three types of the doctrine of Forum Non Conveniens in the common law system countrieswhich include the British mode, the American mode and the Australia mode. TheBritish mode and the American mode can also be called the more appropriate forummode and the most appropriate forum mode, the Australia mode can also be calledthe obviously inappropriate forum mode. Then, it introduces the application ofthree types of modes. The application of the doctrine of Forum of Non Conveniensin the continental system countries include the consideration of specialcircumstances in Japan, the exceptional situations in Quebec district of Canadaand the hybrid of the statutory laws and case laws in the Netherlands. In addition, italso introduces the provisions of the doctrine of Forum of Non Conveniens in thedraft of the Hague Convention on International Jurisdiction and Foreign Judgmentsin Civil and Commercial Matters briefly.Part three is the focus of this thesis. Firstly, it analyzes the necessities which thedoctrine of Forum of Non Conveniens should be applied in China in detail from fiveaspects including the need of the international exchanges in civil and commercialmatters, the need of maintaining the state sovereignty, the need of internationaljudicial assistance, in accord with the need of perfection of the jurisdictional systemof P.R.C.. Then, it illustrates concretely the feasibilities which the doctrine of Forumof Non Conveniens should be applied in China from three aspects including theprinciple of being convenient to both, the judicial practices of the application ofthe doctrine of Forum of Non Conveniens in China and the stipulation of thedoctrine of Forum of Non Conveniens in the Model Law of International PrivateLaw of P.R.C.. Finally, the suggestions which the doctrine of Forum of NonConveniens should be introduced to the Civil Procedural Law of P.R.C. are givenfrom four aspects including the option of the mode, the applying conditions, theanalyzing methods and applying procedure of the doctrine of Forum NonConveniens applied in China.