Research On The Exclusive Jurisdiction System Of Real Estate Dispute

It originated from the contemplation of "the lawsuit brought about by the real estate disputes and the jurisdiction of the people's Court of the real estate," and from1982 to 2015,the legislative provisions on the exclusive jurisdiction of the real estate disputes have always been warm in our country.In 2015,the twenty-eighth article of "the interpretation of the Supreme People's Court on the application of the Civil Procedure Law of the people's law of the people's Republic of China"(hereinafter referred to as the twenty-eighth article)stipulates the scope of the exclusive jurisdiction of the real estate disputes.The twenty-eighth article defines the scope of the exclusive jurisdiction of the "real estate dispute",and points out that the scope of the real estate disputes mainly includes the real right disputes and the four types of contract disputes.Among them,the "real right dispute" is the real property disputes,such as the recognition,division and adjacent relations of the real property rights;the "four types of contract disputes" include the disputes on the contracted management contract of rural land,the dispute of the housing lease contract,the construction contract dispute and the dispute over the contract of the policy building.Therefore,in the application of law,there will be a collision between the two main points of "strict literal interpretation" and "theory of distinction between substance and debt".Standing on the shoulders of predecessors,theoretical inquiry and empirical research are the necessary paths to improve the exclusive jurisdiction system of real estate disputes in China.This article is divided into three parts.The first part is about the exclusive jurisdiction theory of real estate disputes in China.Taking the twenty-eighth part as the breakthrough point,the legislative issue of the exclusive jurisdiction of real estate is thrown out.Then,from the relationship between exclusive jurisdiction and special jurisdiction,under the full discussion of the theory of "exclusive jurisdiction and special jurisdiction convergence" and "exclusive jurisdiction and special jurisdiction",it is suggested that our country should retain exclusive jurisdiction and explain the reasons.Secondly,studying the exclusive jurisdiction system of the real estate in the countries and regions of the continental law system,summarizing the legislative model and the legislative content,considering the exclusive jurisdiction system of the real estate disputes in our country,and putting forward the lack of the system of the parties in our country.The second part: the empirical study of the exclusive jurisdiction of real estate disputes.The life of the law lies in the implementation,benefiting from the practical experience written by the second intermediate people's court in Shanghai and the analysis of the loopholes in the judicial application,so that the statistical analysis of the civil ruling has been collected to find out the problems.First of all,in civil cases as the main line,to explore the relationship between civil cases and litigation jurisdiction.The civil case can not be regarded as the sole element of determining the jurisdiction,but the litigation jurisdiction should be jointly determined by the object of the litigation and the civil case.Secondly,we collect and analyze the data of civil jurisdiction decisions,and find the following problems: first,the disputes between house lease contracts and housing sales contracts.In the data analysis of the disputes between house lease contract and housing sales contract,it shows the collision between strict literal interpretation and the theory of differentiated application of material debt.The dispute over the jurisdiction of the house lease contract has a high incidence and the trend of high incidence.We can get the rent of the house,and fall into the "strictinterpretation theory" of the old dispute with the dispute.On the contrary,data analysis of disputes in housing sales contracts reveals "the theory of distinction between matter and obligation".The two is to exclude nuisance disputes.It is doubtful that the exclusive jurisdiction of property claim should be applied in data analysis that excludes the jurisdiction of disputes.The claim for real right is the request basis to exclude the nuisance dispute,and the dispute of the nature of the claim of real right becomes the root of eliminating the applicable jurisdiction of the nuisance dispute.Three,there is an identity dispute.We choose four time node's identity disputes to analyze the contradiction between exclusive jurisdiction provisions in legal system and identity relationship.The third part: the exclusive jurisdiction of real estate disputes is perfect.The problems raised in theoretical research and empirical research are solved one by one.One is to establish the principle of the application of the matter debt.For real estate disputes,exclusive jurisdiction is not applicable to real property disputes.From the theory of civil law and the civil case,we should determine the scope of the application of the exclusive jurisdiction of the real property dispute: ownership,usufructuary right and possession.Two,the establishment and effectiveness of the system of the parties.Based on the German system,we set up the system of selecting the parties involved in real estate disputes and the real property disputes.After studying the legislative provisions of exclusive jurisdiction in Taiwan area,we can complement the effectiveness of exclusive jurisdiction system in China.The three is the dispute of the real estate creditor's rights.Taking the dispute of housing lease contract as an example,we should emphasize the problems that should be paid attention to when applying the exclusive jurisdiction of contractual claims.The four is to exclude nuisance disputes.After discussing the claim right on matter,we can make corresponding reasoning about whether exclusive jurisdiction is applied to exclude the cases of nuisance disputes.Finally,there is an identity dispute.