Validity Analysis Of The Agreement Jurisdiction Article In Form Contract

In the development process of modern economy, the common use of form contracts and the development of e-commerce bring more convenience for people’s life. At the same time, disputes relating to the validity of the agreement jurisdiction article in form contracts are becoming more and more. With respect to the validity of the agreement jurisdiction article in form contracts, some main countries and regions have different legislations. In 2015, the Supreme Court of people’s Republic of China issued the judicial interpretation of Civil Procedure Law, in which the aforementioned problem has been regulated. On the basis of the discussion of the relevant theories of agreement jurisdiction、agreement jurisdiction article in form contracts、the legislation and judicial practice of other counties and regions on the validity of the agreement jurisdiction in form contracts、the legislation and judicial practice in China, this dissertation comments on Article 31 of the judicial interpretation, and makes some proposals according to its shortcomings. The article is divided into four chapters:The first chapter summarizes the agreement jurisdiction, discusses the concept、theoretical basis、legal nature and the validity of agreement jurisdiction. Jurisdiction is the responsibilities and powers of first instances in courts, and it is the first problem to face and solve before enter into proceedings. Besides, agreement jurisdiction system is an important part of jurisdiction system. Jurisprudence defines agreement jurisdiction in a similar way. Agreement jurisdiction, also known as consensual jurisdiction, is that two parties agree on the complement court in advance in the form of agreement. This system has deep legal theoretical basis, reflecting the principle of autonomy、principle of disposition and principle of procedure subjective. It is also the requirement of litigation reform, in line with the development trend of current contractual litigation. In terms of the legal nature of agreement jurisdiction, some scholars advocate that the validity of jurisdiction agreement is the content provided on contract law, and should be reviewed according to substantive law. Therefore, contract invalid that is stipulated in General Rule of Civil Law and Contract Law can be used to exam the validity of agreement jurisdiction article in form contract. In addition, the German Civil Procedure Law stipulates that jurisdiction agreement did not create jurisdiction, but only to make a court has or has no jurisdiction, therefore agreement jurisdiction is litigation contract essentially and only produce effects on procedural law. What effect agreement jurisdiction will have on courts and parties is the validity of it, usually divided into exclusive and coexistence validity. Under the former situation, it excludes other courts outside of the agreed court when the agreement jurisdiction is reached; the latter situation does not rule out the legal jurisdiction, but identify additional alternative court, increase the chances of parties to choose. Comparatively speaking, the coexistence jurisdiction allow the parties to establish "agreement connection point" to prosecute, which can make parties choose more suitable court based on their trade-offs.The second chapter discusses the agreement jurisdiction article in form contracts, including the basis of form contracts 、 the necessity to regulate the agreement jurisdiction in form contracts、the regulation patterns in some main countries and regions and the significance of these regulation patterns to our provision. The unfairness of parties’ economic strength、theory of contract freedom and the theory of transaction cost saving are all basis that form contracts generated. As an important part of form contacts, agreement jurisdiction exists as articles in tickets、insurance contracts、communication contracts、heating contracts and so on. And nowadays the service agreements of e-commerce sites are the most common form. In addition, agreement jurisdiction article has important characteristic that is different from other content in a contract, namely independence, which means that the change、termination and invalid of contract will not affect the validity of agreement jurisdiction article in the contract. The agreement jurisdiction articles in form contracts are usually not consulted equally by two parties, and the disadvantaged party has no chance and ability to bargain, which all make more disparity in power of two parties. Besides, the basis to regulate the agreement article in form contracts also include the common use of form contracts、abuse and departure of contract freedom and the principle of weak protection.Some counties and regions have regulations about the validity of agreement jurisdiction article in form contracts in their laws or judicial practice. For example, Taiwan Civil Procedure Law added to the content of agreement jurisdiction in twice. It makes provisions for agreement jurisdiction in small claim procedure and general procedure respectively. Based on the principle of weak protection, Germany and France limited the agreement jurisdiction between merchants, which excludes the possibility to impose unfair jurisdiction article to vulnerable consumers. Unlike other countries(regions) that make clear provisions in law, the United States has formed a perfect “fundamental fair rule” to investigate the validity of the agreement jurisdiction article in form contract. “Fundamental fair rule” review the validity of agreement jurisdiction article by examine whether parties can identify the jurisdiction article, whether they have an reasonable opportunity to read the article and whether they have the “termination refund freedom”, which shows more respect for the true wishes of parties and make the review more workable. In addition, the Brussels Convention is the earliest international legislation to limit the agreement jurisdiction article in form contracts. It is regulated that the jurisdiction article should only be reached after a dispute in the protective jurisdiction field which has consensus agreement, and it excludes the use of form contract.The third chapter discusses the laws and judicial practice relating to agreement jurisdiction in form contracts in China. Before the judicial interpretation was released, the courts usually adopt substantive laws to deal with such cases, which mean that they investigate jurisdiction article according to Article 39 and Article 41 of Contract Law or Article 24 of Consumer Protection Act. Article 31 of judicial interpretation made special provision relevant to the validity of form agreement jurisdiction, which makes up our legal loophole, in line with the current international development trend of easing, meets the requirement of principle of fair. However, there is only one article relating to the validity of agreement jurisdiction in form contract, and it is inevitably that it has many flaws. Firstly, it is too brief and lack of maneuverability. It does not provide the period to exercise rights and how to deal with the follow-up affairs, besides, the provision that “a reasonable way to draw attention” is too general. Secondly, this provision encourages operators to adopt the agreement jurisdiction in form contracts in practice. Thirdly, this article is narrow limited. In the part of judicial practice of China, it lists two typical cases before the release of judicial interpretation. Although the courts made the final adjudication that the agreement jurisdiction article is invalid, the review is based on Contract Law and Consumer Protection Law. This is the typical model to deal with such cases before. However, it can be based on the judicial interpretation after it has been released.The forth chapter discusses the measures to improve Article 31 of the judicial interpretation. After comparative study of the laws in Germany、France、Taiwan region and the judicial practice in the United States, this text put forward three proposals: Firstly, publish detailed provisions to enhance maneuverability. Define the period to exercise rights、how to handle follow-up affairs and refine the content and review criteria of “a reasonable way to draw attention”, which can learn from Article 39 of Contract Law Interpretation and the “fundamental fair rules” in United States. Secondly, in reference to the legislations in Taiwan, exclude the application of agreement jurisdiction in form contract between non-merchants in small claim procedure;And in general procedure, approve the validity of agreement jurisdiction article in form contracts conditionally. Finally, expand the scope of Article 31, not only limited to operators and consumers, but also to business owners and workers. Then it can be applied to the three areas under the Brussels Convention and eventually expand to other contracts which has obvious strength contrast. In addition, the reasons to advocate invalid of agreement jurisdiction article in form contracts cannot be limited to failure to remind consumer, consumers can also bring a lawsuit when the article is unfair and unreasonable. This can protect the legitimate rights and interests of consumers better, and achieve the legislative intent of the provisions.