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论文作者:英语论文论文属性:短文 essay登出时间:2014-03-27编辑:caribany点击率:31882
论文字数:17445论文编号:org201403180951005525语种:英语 English地区:英国价格:免费论文
关键词:situation of conflict冲突的情况Commercial Contract商业合同Types of contract
摘要:On a more general level, it is feasible for the Chinese law to adopt some of the maturely developed doctrine as principle of its international private law, such as forum non convenniens, lis pendens and double jeorpardy. And counting on these principles, the court would not be restrained by the specific rules in cases they cannot be foreseen at the moment. Further suggestions shall be proposed always for the improvement of the jurisdiction rules in combination of the tendency of international civil procedure law and problems raised from judicial practice. 在更广泛的层面,它为中国的法律采纳了一些发展成熟的学说作为其国际私法是合适的,如论坛,非国际惯例,待决案件和双重审理的原则。并依靠这些原则,法院现在不会在他们不能预见的具体规则约束。更深层次的建议,提出的管辖权规则在国际民事诉讼法和司法实践中提出的问题的倾向相结合从而进行改进。
1.2合同的类型
Contract, is one of the most commonly used forms for legal relationship in binding parties and brings many kinds of disputes. There are particular types of contracts, such as contract of employment, consumer contract, insurance contract, commercial contract and so on, some of which are subject to their own specialized rules of law and detailed legislation.[4] In this piece of work, issues relating to jurisdiction over commercial contract will be dealt with.
1.3 Applicable legislations
1.3适用法例
Whenever a case is brought or not brought in the courts of a Member State of the European Community, the starting point will be considering the impact of the Brussels I Regulation (Council Regulation (EC) 44/2001,(2001 OJ L 12/1) for this is the fundamental jurisdictional provision fro all proceedings instituted on or after 1 March 2002.(Art 66&76) Therefore, for pragmatic reasons, the Brussels I Regulation will be taken to represent the Brussels/Lugano system and for reason of space. This dissertation will not deal with the English traditional rules on jurisdiction over contract. Since it is ruled that the Brussels I Regulation should be interpreted in the light of the substantial body of case law and decided under the Brussels Convention[5], and courts of Member States have made numerous references to the Court of Justice in relation to the interpretations, the European system is deemed to be more comprehensive and developed than the Chinese system.
For many foreigners, despite the fact that China has been opening up to the outside world for more than twenty years, the Chinese People’s Courts are mysterious, particularly when dealing with international civil litigation.[6] Questions such as “what are the bases for a Chinese People’s Court to assert jurisdiction over foreign parties” and “what are the standards to determine judicial competence” are frequently asked by foreign parties and these issues are making them hesitate in commencing business in China or even with Chinese partners. At first glance, it is simpler for the Chinese law to have most provisions in dealing with jurisdictional issues within the Chinese Civil Procedural Law of the People’s Republic of China[7] and its judicial interpretation.[8] Moreover a few provisions concerning special contract which scattered in other Acts could be applicable in cases relating to foreign related commercial contract.[9] However, the Chinese rules on jurisdiction are not sufficiently as systematic as that of civil law of other countries, for it does not have an individual Act or Regulation integrated with official opinion of the Chinese Supreme Court specifically governing international jurisdiction issues. Additionally, while implicit interpretation is demanded, the situation of legal power in China is blocking the way for judges to further interpret law after making decisions.
1.4 Tasks of the dissertation
1.4论文的任务