The Application Of Forum Non Conveniences In China

Forum non conveniences was originated in Scotland, containing to Civil LawSystem, in17th century. Then, it was absorbed and developed rapidly in CommonLaw System. As existed in the form of exceptions without any reasonable system,the doctrine of forum non conveniences become more and more perfect in CommonLaw System. With the development of global economy and changes at home andabroad, our country change his negative attitude to forum non conveniences, andconsidering the introduction of it. In recent years, the most representative case in theuse of forum non conveniences in our country is GuoYe Solicitors, concerningchallenge of jurisdiction. This article defined forum non conveniences with the useof that case, and analyze its application in China.First, there are many defects in our jurisdiction system at present stage, and inorder to make up for the deficiency and blank of laws, we must introduce forum nonconveniences to carry out our judicial principle better. Second, some researchersthink that forum non conveniences could not be implemented in our country becauseit is an outcome of Common Law System. Contrary to this question, this articlestarting with three points to analyze the feasibility of the doctrine of forum nonconveniences in China. On the one hand, inconvenient court principle could beimplemented in Civil Law System. On the other hand, we have suitable legal systemand there have been many practices on forum non conveniences in China. Thoughformed as a result of Common Law System, the doctrine of forum non conveniences also exist in Civil Law countries with similar forms. Discretion is the basic ofinconvenient court principle, and it is contained in our legal system. There are alsomany successful practices of forum non conveniences in China. All of those provedthat forum non conveniences could grow up and carry out in China. At last, inorder to design a reasonable system of forum non conveniences, containingprerequisites, qualification, factors and judgment modes, we must use experiences ofCommon Law System for reference, and make some changes combined with ourspecial circumstances. The prerequisites of forum non conveniences in China issimilar to Common Law countries. The court that accepts the case must havejurisdiction which hinder the interest of the defendant. Apart from this, there must bea more suitable court abroad. I think we should follow England on the qualificationof forum non conveniences. On the first step, the defendant need to adduce evidenceto prove that the court that accepts the case is unsuitable obviously and there is amore suitable court abroad. On the second step, the plaintiff must adduce evidence toprove that the court abroad is injustice. In order to protect the lawsuit right of theparties, the Chinese court should discontinue the suit if he is unsuitable to hear thecase. The factors about whether to use forum non conveniences or not are drew fromCommon Law countries, and we must consider our actual situations when usingthem. Of course, the court should consider but not limit to those factors on makingdecisions, so as to leave much space to discretion.Any system has advantages and disadvantages, the doctrine of forum nonconveniences is not an exception either. We must pay more attention to thedisadvantages of forum non conveniences when using it to solve international civilconflict of jurisdiction, and make it better to reduce its negative impacts. Thedisadvantages of forum non conveniences could not be an excuse for refusing it, wemust get an objective view on it. In actual operations, we should make full use of itsadvantages and design the system legitimately in order to reduce or avoid itsdisadvantages.