The Research Of The Cross-strait Interregional Civil Parallel Litigation Problem

In China, the state of "four legal units in one country", the Mainland and Taiwan eachconstitutes an independent legal field. Due to belong to different legal areas, legislations aboutcivil jurisdiction exist differences on both sides of the Taiwan straits. And it is common thatcourts of the Mainland and Taiwan have jurisdiction over the same dispute simultaneously. Inthat case, parallel litigations emerge if parties file actions in two or more cross-strait courts.What is more, with the increase in the number of civil disputes among the cross-strait peoplein recent years, the number of the cross-strait interregional civil parallel litigations has beenrising rapidly. However, as matters stand, the Mainland and Taiwan both generally permit theexistence of the cross-strait interregional civil parallel litigations. And they don’t form asystem of regulation measures. The existing sporadic regulation measures are also difficult tomeet the need of the reality regulation. All of these factors give rise to the waste of thecross-strait judicial resources. Thus, in order to benefit the cross-strait legislative and judicialpractice, it is necessary for us to probe into the basic theory of the cross-strait interregionalcivil parallel litigations, take the experience of the abroad for reference，investigate thepresent regulation of the Mainland and Taiwan and enact the effective system to regulate thecross-strait interregional civil parallel litigations.The thesis is composed of4sections, over40,000words, covers the definition, causesand effects of the cross-strait interregional civil parallel litigations, foreign regulations ofparallel litigations,and the actuality and consummation of regulations of the cross-straitinterregional civil parallel litigations. The main contents are as follows:Section Ⅰ: the Definition ofthe Cross-strait Interregional Civil Parallel Litigations.Firstly, analyze the concept. That is cases over the same dispute are filed in by the sameparties and accepted by the cross-strait courts simultaneously or successively. Secondly,analyze its characteristics. The same parties, the same facts, the parallelism of theproceedings and the complexity of the solution are the four characteristics of the cross-straitinterregional civil parallel litigations. Finally, divide its types. According to the parties’ status,the cross-strait interregional civil parallel litigations can be classified into repetitive litigationand reactive litigation. And according to different stages of litigation, it also can be classifiedinto the parallel proceedings before the stage of entertainment, the parallel proceedingsexisting after the stage of entertainment and before the end of trail and the parallelproceedings existing after the end of one action in one jurisdiction. Section Ⅱ: the Analysis of Causes and Effects of the Cross-strait Interregional CivilParallel Litigations. The causes of the cross-strait interregional civil parallel litigations can bedivided into objective and subjective reasons. Thereinto, restrictions on the exercise of theright of appeal of the parties from the Mainland in Taiwan, differences of the legislation ofcivil jurisdiction between the Mainland and Taiwan, and the imperfection of the principle ofNon Bis Idem in the regulation of the cross-strait interregional civil parallel litigations are theobjective reasons. Meanwhile, that parties are motivated by the interests of the litigation is thesubjective reason. And in the terms of the effects of the Cross-strait Interregional CivilParallel Litigations, although it have a positive on the comprehensive protection of creditor’srights and avoiding the limitation of action expiring, it also causes defects such as thelitigation exhaustion of parties and the waste of the cross-strait judicial resources.Section Ⅲ: the Regulating Patterns of Parallel Litigations. It focuses on the three currentregulating patterns of parallel litigations from abroad. Common law countries represented bythe United States adopt the discretionary mode of which the judicial balancing of interest isthe core.In the pattern, the judges measure various interests and take a variety of ways suchas transferring cases, the principle of inconvenient court and international comity to regulateparallel litigations. And some civil law countries represented by Germany and Switzerlandadopt the recognition prognosis pattern. These countries may suspend home litigationproceedings. after they predict foreign judgments will be recognized domestically. Finally, theEuropean Union adopts the pattern of the first-claimed court, which stipulates that thefirst-claimed court exercises the jurisdiction in order to regulate parallel litigations.Section Ⅳ: the Actuality and Consummation of the Regulation of the Cross-straitInterregional Civil Parallel Litigations. This part is the emphasis of the article. First of all, theauthor will investigate the present regulation of the cross-strait interregional civil parallellitigations. On this point, the author will describe the present regulation of the cross-straitinterregional civil parallel litigations from the legislative and judicial level separately, andmake a summing up of the actuality. On this basis, the author will offer the proposal that thecross-strait interregional civil parallel litigations should be regulated by the contractualjurisdiction，the principle of inconvenient court,the first claimed approach and the lis AlibiPendens.