A Study On The Judicial Application Of The Principle Of Actual Connection In The Jurisdiction Of Foreign-related Agreement In China

In the Civil Procedure Law of 1991,the Principle of Actual Connection is defined as one of the legal requirements for the entry into force of foreign jurisdiction agreement,which highlights the important position of the Principle of Actual Connection in the field of foreign jurisdiction.As a restrictive means of jurisdiction by agreement,the Principle of Actual Connection plays an important role in preventing domestic jurisdiction from being improperly excluded and safeguarding the interests of the weak.Throughout the past foreign-related judicial practice in China,the application of the Principle of Actual Connection is confused and the judgment is unreasonable.The concrete manifestation of the dilemma of application is that the criteria of “Actual Connection” are not unified and the objective identification is rigid.Exploring the causes,we can see that there are deficiencies in the legislative and judicial level,which affect the accurate application of the Principle of Actual Connection.The legislative cause lies in the difficulty of grasping the legislative purpose,the imperfection of the legislative content and the irrationality of the legislative mode,while the judicial cause lies in the lack of judicial interpretation and guidance of cases,and the lack of supervision on the exercise of judicial power by judges.The judicial application dilemma of the Principle of Actual Connection seriously weakens the effective exertion of its own function,which leads to the judicial trial result deviating from the due track of the Principle of Actual Connection in the jurisdiction system of foreign-related agreements.In order to ensure the reasonable application of the Principle of Actual Connection in foreign-related trials in the future and give full play to the legislative value of the Principle of Actual Connection,it is necessary to base on the needs of China’s actual development,reasonably learn from the value concept of some foreign countries to restrict the jurisdiction by agreement,and seek a way out to solve the problems and causes of the application of the Principle of Actual Connection in foreign-related cases.At the legislative level,the legislative purpose of the Principle of Actual Connection in the jurisdiction of foreign-related agreements is to prevent judicial sovereignty from being improperly excluded and take into account the interests of the weak.We should refine the legal provisions,improve the legislative clarity of the objective contact standard,and eliminate the legal choice standard.In order to avoid confusion in understanding,we should change the current unreasonable legislative mode of merging.At the judicial level,judicial interpretation and guiding cases should be followed up in a timely manner,and the substantive interpretation method should be used to define the connotation of “Actual Connection”,and the judgment concept of flexible identification of Actual Connection should be clarified.In addition,we should strengthen the restriction and supervision of the judge’s exercise of judicial power,promote the judge to accurately understand the Principle of Actual Connection,and improve the ability of foreign-related trials,so as to promote the reasonable application of the Principle of Actual Connection in foreign-related trials.