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UM E-Theses Collection (澳門大學電子學位論文庫)

Title

International jurisdictional rules in China : with reference to Hague Negotiation

English Abstract

How to improve international jurisdictional rules in China is based on true understanding of current Chinese rules. True understanding depends on two important issues. One is exact interpretation of legislation and the other is judicial practice which, as the author suggests, is even more valuable than interpretation. By analysing the two issues, a relative clear picture of Chinese international jurisdictional rules in action will be shown. After that, comparisons with 1999 Draft would be meaningful which on one hand, tell the reasons and insights behind the difference; on the other hand, identify the advantages and find out the way for improvement. Part I has four sections. The first section introduces the overall background of Hague Conference on negotiating harmonized international jurisdictional rules worldwide. Under this background, the author finds it quite necessary to improve Chinese international jurisdictional rules which will make China more attractive for investment and trade. The second section clarifies the author's aim in working on this thesis. This thesis is designed to achieve two aims. One is mutual recognition and enforcement of foreign judgment and the other is indirectly to enhance investment and trade. The third section lays out the structure of this thesis. The fourth section, for the convenience of readers, makes three brief explanations without which readers may feel confused about the personal jurisdiction, why author would like to cite legal documents issued by Chinese Supreme Court of Justice and invoke so many judicial cases. Part II focuses on international jurisdictional bases in China and comparisons with jurisdictional bases in 1999 Draft. Comparisons in term of the six jurisdictional bases, general jurisdiction, special jurisdiction, choice of court, appearance by defendant, exclusive jurisdiction and protective jurisdiction are carefully made one by one. During the comparisons, especially jurisdiction on contract and tort, the author finds out many discrepancies and space for improvement. Part III concentrates Article 241 of Chinese Civil Procedure Law which is suspicious of being excessive jurisdiction. Firstly, the author collected three theories as to excessive jurisdiction in the history and finally chose the theory of objective and subjective tests to examine jurisdictional bases in Article 241. Except the place of performance, the other jurisdictional bases in Article 241 fail in the tests. Besides, the judicial practice demonstrates that these jurisdictional bases go even farther and their use deviates from normal meanings. To cure the excessive jurisdiction, the best method is not deleting them but setting limitation on them and using them properly. Part IV keeps eyes on two methods of declining jurisdiction, Forum non conveniens and Lis pendens. Both methods in China are quite interesting. Forum non conveniens grows in China under a particular background which is closely related to "one country, two systems". Gradually, it is accepted and used by few Higher Courts. Meanwhile, Chinese Supreme Court of Justice issued a legal document expressly stating that Forum non conveniens is not applied unless seven conditions are satisfied. After the document, there are only two cases found using the Forum non conveniens. The author holds the opinions that Forum non conveniens will not be widely accepted in short time and actually it is hard to tell in the far future. Lis pendens in China is also in a special fashion. Strictly speaking, China refuses Lis pendens to a large extent. After making clear what the circumstances of both methods, the author compares both methods with those in 1999 Draft. Part V draws conclusions of the problems from all the analysis in the preceding Parts. These problems are analysed from judicial and academic perspectives and finally the author makes several recommendations. Key Words: International Jurisdiction, General Jurisdiction, Special Jurisdiction, Excessive Jurisdiction, Forum Non Conveniens, Lis Penden

Issue date

2011.

Author

Xie, Bin

Faculty

Faculty of Law

Degree

LL.M.

Subject

Jurisdiction (International law)

Jurisdiction -- China

Supervisor

涂廣建

Files In This Item

TOC & Abstract

Location
1/F Zone C
Library URL
991006254189706306