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A Study Of The Negative Conflicts Of Jurisdiction From The Perspective Of Human Rights

Posted on:2020-03-04Degree:MasterType:Thesis
Country:ChinaCandidate:M Y ZhengFull Text:PDF
GTID:2416330596980569Subject:International Law
Abstract/Summary:PDF Full Text Request
The issue of negative conflicts of jurisdiction has not received enough attention from the academic community for a long time.Therefore the academic community has not noticed that the traditional concept of negative conflicts of jurisdiction has lagged far behind the needs of the protection of human rights.Narrowly,negative conflicts of jurisdiction means that all the countries do not have jurisdiction over an international civil case.However,in the usual sense,negative conflicts of jurisdiction,which is mentioned as traditional negative conflicts of jurisdiction in this article,has a broader meaning.It refers to the situations in which countries refuse to accept and hear an international civil case,leading to nowhere the parties can bring their lawsuit and no judicial relief they can access to.From the perspective of the reasons of the refusal of hearing the case,it can be divided into two types: no jurisdiction basis or under the discretion.The right of access to justice is closely related to the issue of international civil jurisdiction.The goal of this right is to help the parties obtain effective judicial relief,and the acceptance of international civil cases in a country's courts is the premise of the parties to obtain judicial relief.In order to pursue the effectiveness of judicial remedies,we need to ensure that there is a court of one country,which would accept and hear the international civil litigation.And also,the right of access to justice requires that an international civil litigation need to be heard fairly in the court,and the judgment of the court could be recognized and enforced.When these requirements come to the issue of international civil jurisdiction,they can be translated into: first,an international civil litigation should be governed and heard in a court;second,it should be heard in a court where the procedure is fair;third,it should be heard in a court whose judgment could be recognized and enforced.If these requirements are not met,the parties will not be able to obtain effective judicial remedies and there will be nowhere they can make a litigation virtually.According to the above requirements of the right of access to justice,more factors should be considered in determining the competent courts of international civil litigation to help the parties obtain effective judicial remedies.However,the traditional theory of negative conflicts of jurisdiction only pays attention to the problem that the parties can not make a litigation in any court because of the rejection of each country.This leads to certain defects in the aspect of human rights: neglecting the goal of effective judicial relief,andlag behind the requirements of the development of human rights law.From the perspective of protecting the right of access to justice,and thinking in combination with the actual problems in judicial practice,in addition to the traditional negative conflicts of jurisdiction,the real negative conflicts of jurisdiction should also include other situations in which the parties will actually can not obtain effective judicial remedies.those situations can be called : negative hidden conflicts of jurisdiction.There are mainly hidden concealed negative conflicts in judicial practice: First,objective factors hinder the parties from accessing to the only court with jurisdiction.The objective factors here include: warfare and other irresistible factors,and the risk of suffering injury when appear in the country of the only court,and the lack of necessary legal aid in the only court.Second,the proceedings of the only court with jurisdiction are unfair,including excessive delays or judicial corruption.And third,the only court with jurisdiction will reject the plaintiff's substantive claim inevitably.For example,when the domestic law of the country where the only court is located prohibits divorce,the plaintiff's request for divorce in the court will inevitably be rejected.In addition,in theory,if the judgment of the only court with jurisdiction cannot be recognized and enforced,the parties cannot receive effective judicial relief either.However,in judicial practice,this situation is very rare.In the first case,the parties are objectively unable to sue,and in other cases,the litigation taken by the parties will also have no practical significance,and it is not reasonable to expect the parties to take a lawsuit in a court that cannot provide effective relief.All of these situations constitute an infringement of the right of access to justice and belong to hidden negative conflicts of jurisdiction.In addition,since the right of access to justice is not absolute,as long as there is a legitimate purpose,a proportional principle,and no injury for the essence of the right,the restriction on the right can be a reasonable one.Therefore,those situations that constitute traditional or hidden negative conflicts of jurisdiction may,on the contrary,do not constitute any violation of the parties' right of access to justice because of certain factors.At this time,these seemingly negative conflicts of jurisdiction no longer belong to any "problems" that need to be resolved for the protection of human rights,but belong to the false negative conflicts of jurisdiction.For example,the absence of jurisdiction due to state immunity,the negative conflicts of jurisdiction caused by the parties themselves,and so on.Finally,the real negative conflicts of jurisdiction under the human rights perspective can basically be solved through the establishment of necessity jurisdiction and the supervision of international human rights protection mechanisms.Therefore,every countryshould apply the theory of necessity jurisdiction and support the development and improvement of international human rights protection mechanisms.
Keywords/Search Tags:Negative Conflicts of Jurisdiction, Human Rights, Access to Justice, Judicial Relief, Necessity Jurisdiction
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