Research On Legislative Defects And Perfect Paths Of China’s Jurisdiction Of Forein-related Agreements

The foreign contractual jurisdiction is regarded as a natural extension of party autonomy in the field of international civil and commercial affairs,which reflects the struggle and coordination between the principle of state sovereignty and the principle of party autonomy in private international law.Nowadays,most of the European and American countries and major international treaties in the world have adopted a lenient approach in the formulation of laws governed by agreements.In safeguarding judicial sovereignty and ensuring the interests of party autonomy has been increasingly focused on the protection of party autonomy.However,contrary to the trend of international legislation,although the foreign contractual jurisdiction in China has been revised several times since it was established,it has always adopted the position of strict restrictions,and there are many contradictions and omissions in legislation.This paper starts with combing and analyzing the current legislative situation and legislative defects of the foreign contractual jurisdiction in China,and draws lessons from the progressive practice of the Hague Convention on the Choice of Court agreements,so as to put forward corresponding suggestions for perfecting the legislation of the foreign contractual jurisdiction in China.First of all,through a classic case,this paper puts forward three general questions in the legislation of our country,that is,the exclusiveness of the agreement on foreign jurisdiction,the question of applicable law and the practical relationship between the selected court and the disputed matter.Then it summarizes the different characteristics of the three stages of development of the jurisdiction legislation of foreign-related agreements in China,and combs the provisions on the jurisdiction of foreign-related agreements in the current legislation in detail.Secondly,this paper makes an in-depth analysis of the defects of foreign-related agreement jurisdiction in terms of scope of application,formal requirements,exclusive judgment standards,determination of applicable law and limitation of effectiveness,and points out that the current legislation of our country is too strict on the autonomy of the parties.At the same time,some important rules are missing,resulting in the uncertainty of the application of the law.Finally,by drawing lessons from the jurisdiction rules of the Hague Convention on the Choice of Court Agreement,the author puts forward some legislative suggestions in line with the actual situation of our country.This paper points out that there are mainly two deficiencies in the current legislation on the foreign contractual jurisdiction in China: first,the current legislation restricts the autonomy of the parties too strictly.It is not conducive to give full play to the positive role of agreement jurisdiction in resolving jurisdiction conflicts in international civil and commercial cases;Second,the lack of legislation of important rules,such as the exclusiveness of foreign jurisdiction agreements and the judgment standards of applicable law,leads to the uncertainty of the application of law in judicial practice.This paper holds that China’s legislation should clarify the scope of application of foreign-related agreements,exclude foreign-related consumer contracts and employment contracts,and interpret "disputes over property rights and interests" as "all disputes except disputes over identity relations." "the form of the foreign contractual jurisdiction should not be limited to written form,but can be appropriately broadened.In the aspect of the exclusiveness of the foreign jurisdiction agreement and the judgment standard of the applicable law,we can draw lessons from the practice of the Convention on the Choice of the Court,and conclude that the jurisdiction agreement is exclusive and is mainly based on the law of the selected court.The applicable law rule supplemented by the law of the court in question enhances the flexibility of this rule.Adjust the inappropriate content of exclusive jurisdiction,while adhering to the principle of practical connection,at the same time increase the standard of legal association,in order to give full play to the role of party autonomy...