On The Defects Of The Doctrine Of Forum Non Conveniens And The Counter Measures In China

As an important principle of the common law jurisdiction system, forum non conveniens play an important role in solving positive conflict of international civil and commercial jurisdiction, realizing the rational allocation of judicial resources, balancing the original defendant litigation right and achieving justice and efficiency of litigation. However, historical tradition of the continental legal system country law decides that the continental legal system country is more inclined to the legal system of logic and making a clear, predictable rules on legal system, instead of solving the existing problems in the system of jurisdiction by suitable inconvenient court principle with discretion and flexible way.After a debate of academic world and judicial circles,the Supreme People’s Court admitted this legal institutions with the judicial interpretation of civil procedure law. It means that judges will solve jurisdiction positive conflict and balance litigious right with this law. However, every coin has two sides, we need to notice the negative things of this legal institutions.The first chapter of the thesis will introduce the concept, historical development process and theory basis of the forum non conveniens. This chapter introduces the development process and applicable standards on basis of the Anglo-American countries and expounds the law philosophy basis of forum non conveniens which solves the conflict of jurisdiction.The second part combines the legislation and judicial practice of Anglo-American law system and continental law countries and particularly elaborates the effect of forum non conveniens. Which different is that this principle was cold in the continental law system countries. Its related to the property of forum non conveniens and the history of continental countries law. However, with the development of unification of private international law and appearance of the positive conflicts of jurisdiction, to eliminate negative from jurisdiction legal system and the close of the lag, some continental law countries build up the principle like forum non conveniens that suit to themselves. Forum non conveniens which they adopted are not the true one in the strict sense, I will use Germany and Japan as samples.In the third part, I will talk about the problem and solution of forum non conveniens in China.Here I will discuss the reason from three aspects:the present situation of cold that forum non conveniens meet in civil law countries, the case of abuse in practice and the feasibility of forum non conveniens in China. As a written law country, China has a great similarity with the continental legal system. The problems that the continental law system meet in process of using forum non conveniens, we also have. In this paper, combined with the reasons for forum non conveniens to get short shrift in continental law countries, analogy analysis of this principle is suitable for the introduction of our country. This paper also uses the dialectical point of view, analyzes the judicial practice in the widely used forum non conveniens of common law countries, there is not forum non conveniens abuse problems, resulting in discrimination against foreign plaintiff, judicial protectionism and other hazards. The last part, I will talk about the problem and solution of forum non conveniens in China.