2002年中国国际私法的司法实践
Chinese Judicial Practice in Private International Law:2002
黄进 杜焕芳
【摘要】Table of Contents
I. Introduction
II. Review of Judicial Interpretations concerning Private International Law
II.A. Judicial Interpretation concerning Jurisdiction
II.B. Judicial Interpretation concerning Service abroad
II.C. Judicial Interpretation concerning Insolvency
III. Statistics of Foreign-related Cases
Table 1: Statistics of Cases
Table 2: The Ascertainment-of-Jurisdiction Methods
Table 3: The Choice-of-Law Methods
IV. Analysis of the Ascertainment-of-Jurisdiction Methods
IV.A. Common Jurisdiction and Special Jurisdiction
IV.B. Selective Jurisdiction and Presumptive Jurisdiction
IV.C. Exclusive Jurisdiction
V. Analysis of the Choice-of-Law Methods
V.A. The Principle of Party Autonomy
V.B. The Principle of the Most Significant Relationship
V.C. Application of Dépeçage Method
【全文】
Chinese Judicial Practice in Private International Law ：2002
Huang Jin* and Du Huanfang**
I. Introduction
The year of 2002 is the first one after the entry of the China into the World Trade Organization (WTO), which signifies the country’s further integration into the mainstream of world economy. It means that the China will participate in international competition and cooperation in broader areas and in a more in-depth way. It not only quickens Chinese reform in trade mechanism but also brings huge economic effect to China. Meanwhile, the WTO entry has brought about unprecedented opportunities and challenges to the adjudication of foreign-related civil or commercial cases in China. Under a climate of relatively light legislation, the judicial practice plays an important role in the modern process of Chinese Private International Law.
This article reviews and analyses Chinese judicial practice in private international law in 2002. It is divided into four parts principally. The first part examines some judicial interpretations concerning private international law issued by the Supreme People’s Court of the People’s Republic of China (PRC). The second part investigates some foreign-related civil and commercial cases through three statistical tables. The third part analyses different ascertainment-of-jurisdiction methods, and the last part analyses different choice-of-law methods.
II. Review of Judicial Interpretations concerning Private International Law
II.A. Judicial Interpretation on Jurisdiction
With a view to correctly adjudicating foreign-related civil and commercial cases, and protecting the legitimate rights and interests of Chinese and foreign parties concerned, the Supreme People’s Court decided to implement centralized jurisdiction as to the particular cases, and then issued the Rules on Certain Issues Relating to Jurisdiction over Proceedings of Foreign-Related Civil and Commercial Cases [hereinafter referred to as “Rules”] on December 25, 2001, which has been in force since May 1, 2002. The principal contents of the Rules are following:
Art. 1 The First-instance adjudication of foreign-related civil and commercial cases shall be governed by the following People’s Courts: (1) People’s Courts in the Economic and Technological Development Areas (ETDA) approved by the State Council; (2) Intermediate People’s Courts in the provincial capital cities, the capital cities of autonomous regions and municipalities under the Central Government; (3) Intermediate People’s Courts in the Special Economic Zones and cities under the State planning; (4) Other Intermediate People’s Courts designated by the Supreme People’s Court; and (5) Higher People’s Courts. The regional jurisdiction of the above Intermediate People’s Courts shall be determined by their own Higher People’s Courts.
Art. 2 Where the parties concerned refused to accept a first-instance judgment or ruling given by a People’s Court in the ETDA established with the approval of the State Council, the second-instance trial of the case shall be under the jurisdiction of the local Intermediate People’s Court.
Art. 3 This set of Rules shall be applicable to the following cases: (1) Cases of disputes over foreign-related contracts or rights infringement; (2) Cases of disputes over letters of credits; (3) Cases of application for the cancellation, recognition or enforcement of international arbitral decision; (4) Cases of application for verifying the binding force of foreign-related civil and commercial arbitration clause; and (5) Cases of application for the recognition or enforcement of civil or commercial judgments or rulings given by foreign courts.
Art. 4 This set of Rules shall not be applicable to cases of border trade disputes taking place in frontier provinces bordering foreign countries, cases involving foreign-related real estate and cases of foreign-related disputes over intellectual property.
Art. 5 For jurisdiction over cases of civil and commercial disputes involving parties concerned from the Hong Kong Special Administrative Region, the Macao Special Administrative Region or Taiwan Region, this set of Rules shall be referred to in application.
Art. 6 Higher People’s Court shall exercise the supervision over jurisdiction over foreign-related civil or commercial cases. Where a foreign-related civil or commercial case has been accepted by a court in excess of jurisdiction, the court concerned shall be told to transfer the case to a People’s Court with jurisdiction over it, or there shall be a ruling that the court concerned should transfer the case to the People’s Court with jurisdiction over it.
Art. 7 This set of Rules shall go into force on March 1, 2002. For cases that were accepted by People’s Courts before the entry into force of this set of Rules, they shall still be adjudicated by the same People’s Courts on a continued basis.
At the same time, the Supreme People’s Court also issued the Notice on Earnest Study and Implementation of the Rules on Certain Issues Relating to Jurisdiction over Proceedings of Foreign-Related Civil and Commercial Cases [hereinafter referred to as “Notice”]. For coordination with the Rules, Wan E’xiang, the president in charge of this service, gave an important speech at the press conference [hereinafter referred to as “Speech”] to further explain the Rules. As follows mainly analyses the Rules combining with the Notice and the Speech.
II.A.1.The Background and Significance of Centralized jurisdiction
Along with China’s entry into the WTO, full-scale promotion of the country’s open-up process, continued expansion of global economic cooperation and continued enhancement of China’s international competitiveness, its economic and trade exchange with other countries will become more and more frequent.
Accordingly, various types of disputes in business activities will keep increasing, and then the People’s Courts will be under an increasingly heavy burden of adjudicating foreign-related civil and commercial cases. Relevant rules of the WTO require members to abide by the principles of judicial independence, unity of the legal system, non-discrimination and transparency. They also require that the laws, regulations and other measures, as well as judicial interpretations and judgments affecting trade or foreign exchange control, be not in contradiction with the rules of the WTO; that government behavior and the administration of justice be open and transparent, and conform to international conventions; and that court judgments and decisions concerning foreign-related commercial cases be promulgated at officially designated publications. However, the adjudication of foreign-related civil and commercial cases in China is still not up to the requirement of the rules of the WTO.
In faithfully fulfilling China’s commitments to the WTO entry and in reforming the judicial system, the Supreme People’s Court of the PRC, in accordance with Article 19 of the Civil Procedural Law of the People’s Republic of China (the Civil Procedural Law) , greatly redefined the jurisdiction over foreign-related civil and commercial cases by issuing the Rules as a set of judicial interpretations, bringing foreign-related civil and commercial cases under the centralized jurisdiction of a small number of intermediate or grassroots courts. According to the Rules, foreign-related civil and commercial cases are now shifted in a centralized way to a small number of intermediate or grassroots courts, which take more such cases and are relatively highly capable of adjudicating such cases, from ordinary intermediate or grassroots courts. This means optimization of judicial resources in China and a major move to reform the judicial system of the country.
