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Inconvenient court doctrine

2018-10-09 来源: 51due教员组 类别: Essay范文

下面为大家整理一篇优秀的essay代写范文- Inconvenient court doctrine,供大家参考学习,这篇论文讨论了不方便法院原则。不方便法院原则,指的是当具有管辖权的法院认为案件在另一个具有管辖权的法院审理对当事人更方便时,可依自由裁量权拒绝行使己管辖权的一种原则。美国将这一原则推广到国际诉讼领域,极大地丰富了该原则的内容,所以不方便法院原则又成为普通法系国家解决国际民事诉讼管辖权积极冲突的一项基本原则。

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The inconvenient court principle is a basic principle for common law countries to resolve the active conflict of international civil litigation jurisdiction. The Los Angeles county superior court of California suspended the trial of the 2004 baotou air disaster compensation case according to the principle, which again confirmed the authority of this principle. This paper expounds the inconvenient court principles of the United States in the light of historical evolution, applicable conditions, problems existing in judicial practice, and puts forward some thoughts on Chinese legislation.

The inconveniences court principle refers to the principle that a court with jurisdiction may refuse to exercise its jurisdiction according to its discretion when it considers that the case is more convenient for the parties to be heard in another court with jurisdiction. The principle first appeared in Scotland in the 18th century, and it began to gain prominence in the United States in 1929 after Blair published an article entitled "the principle of inconvenient courts in Anglo-American law." 1947 U.S. Supreme Court in the Gulf Oil Corp. V. For the first time in Gilbert's case, the principle is defined as a measure of interest in domestic litigation. In the Piper Aircraft Co. V. Reyno case in 1981, the United States extended the principle to the field of international litigation, greatly enriching the content of the principle.

Although this principle is mostly dependent on the discretion of the judge in practice, some principles and standards formed in the precedent are binding on the judge, that is, the defendant has to prove the following two points:

In the 1947 Gulf Oil Corp. That is, a sufficiently substitutable court is the precondition for the principle of inconveniency, and the court should generally satisfy three conditions:

Generally speaking, the latter can be considered to have jurisdiction only if both the original court of appeal and the law of the alternative court place consider the latter to have jurisdiction. Based on the conflict rules of private international law, the court may gain jurisdiction on the basis of the parties' domicile, nationality, location of the subject matter of the lawsuit, place of signing the contract, place of performance, place of infringement, place of occurrence of the accident and the defendant's tacit jurisdiction. Clearly, Chinese courts have jurisdiction over the baotou crash.

The author believes that the alternative court should not obtain jurisdiction by accident, but should have the closest connection with this case. In the case of the baotou air disaster, the only link between the U.S. court and the case is that one of the three defendants, general electric co., is a legal entity in the United States, while the place where the accident occurred, the place where the parties live and the nationality are in China.

This is a central requirement of the inconvenient court principle. In addition to the jurisdiction of the court, the original court should also consider the legal tradition, judicial process, political, economic environment and the independence of the court in the country where the court is located. In this case, the U.S. court held that the rule of law environment in China was sufficient for the hearing, so the hearing was suspended. In fact, in judicial practice, the United States will not easily conclude that the foreign court cannot grant sufficient relief to the plaintiff, thus rejecting the defendant's motion in accordance with the principle of inconvenient court, unless the plaintiff has no relief at all, the author thinks, this is the United States out of "international comity" consideration.

The federal Supreme Court of the United States established a standard of interest for judging "inconvenient courts" in the 1947 Gulf Oil corp. v. Gilbert case:

Factors in terms of private interests include the parties having more private interests in alternative courts, easier access to evidence, more likely witnesses to testify in court, and more convenient on-site inspection.

Factors of public interest include the workload of the original court, the duty of the jury to impose the burden on community citizens who have nothing to do with the lawsuit, cases with significant local impact should be heard locally, local interests of the court, and so on.

In the case of the baotou case, the Los Angeles county superior court of California decided that it was inconvenient for the court after careful analysis of interest. In terms of private interests, the plaintiffs are Chinese citizens, China Eastern, one of the three the defendant is Chinese legal person, the accident occurred, evidence, and witnesses are in China, if a court hearing the case, in the field of inspection and investigation, will face huge difficulties, moreover, the ruling is likely to be denied recognition and enforcement of Chinese court. From the perspective of public interest, China has the closest connection with this case. As the applicable law, there is no doubt about it. Since judges of American courts are unfamiliar with Chinese law, they have to spend a lot of time and energy studying Chinese law. In the end, the court decided to suspend the trial of the baotou air disaster after a number of trade-offs.

As the United States is a case law country, the inconvenient court principle established by the Supreme Court is binding, and other courts must follow it in the process of trial. What follows is the several problems of this principle in judicial practice. Without the guidance of precedent, state courts may even make opposite decisions according to their discretion. The author makes a brief analysis in order to attract the attention of readers.

The author consult a large number of literature and the federal court, district court case, did not find the relevant filed inconvenient court principle of the limit of time, but the author suggested that the defendant knows or should know that as a foundation for the motion situation within a reasonable time after the appearance of proposed, usually should be identical with the term of the jurisdiction of the court. Although failure to bring a lawsuit in time will not result in a waiver of rights, the defendant should be held liable for the adverse consequences of his delay, at which time the court would be more inclined to dismiss the defendant's motion as maliciously delaying the lawsuit. In the case of baotou air crash, the author thinks it is improper for the defendant not to file a motion within a reasonable time, but to file it half a year after the mediation agreement was signed. This undoubtedly gives the accused an advantage, and gives him a superior option, to mediate when the mediation is favorable, to file an inconvenient court motion when the mediation is unfavorable, which is unforeseeable and unfair to the plaintiff.

In practice, the vast majority of cases that use inconvenient court principles are cases where the defendant seeks to move the case to a court outside the United States. A successful inconvenient court defense would lead to the withdrawal of the case, but only if conditions were changed to ensure that the foreign court could grant sufficient relief to the parties. "It is not unusual for a district court to withdraw a case on inconvenient court principles in cases where the mover accepts certain conditions to reduce discrimination against the plaintiff." In fact, district courts have a great deal of flexibility in imposing conditions, and may even require specific events to take place at specific times in foreign courts. In this case, the U.S. court, while suspending the case on the principle of inconveniences, also put some limitations on the defendant. For example, China Eastern will give full compensation to all plaintiffs in accordance with Chinese law and waive the limits, maximum limits and so on.

The dismissal and revocation of a case is not the only result of an inconvenient court motion being accepted. In practice, the most common is the suspension of the case, because it can better protect the interests of the plaintiff. In fact, the fifth circuit has ruled that any rejection of an inconveniencing court must have a "jurisdictional regression clause." In the case of the baotou air disaster, the "suspension order" clearly states that the case is a "suspension" rather than a "termination," and that if the plaintiff cannot receive sufficient relief in the Chinese courts, the U.S. courts still have jurisdiction in the case. This gives the victims' families and lawyers a strong case for relief.

States have established broadly similar "long arm jurisdiction", meaning that U.S. courts have jurisdiction if a defendant who is not a resident of the state has minimal contact. This not only facilitates the parties' selection of courts, but also creates jurisdictional conflicts between states. In this case, the inconveniences of the court principle become a counterbalancing measure against it. In addition, as a pole of the world, the United States is economically developed and has a complete legal system. The courts of the United States attach great importance to the protection of vulnerable groups, respect and safeguard human rights, and strive to ensure that every case is handled with substantive justice. What's more, the amount of compensation required by U.S. law is much higher than in other countries, so the United States has become the first choice of litigants in many countries. The influx of parties from various countries will lead to excessive judicial burden of the U.S. court, so the U.S. court must not use the "inconvenient court principle" to suspend or cancel some cases, including the baotou air disaster case.

It is well known that the United States has established a litigation system in favor of the plaintiff and a punitive compensation system in favor of the defendant. If the foreign plaintiff sues in the United States, the United States USES the inconvenient court principle to cancel or suspend the case, then the foreign plaintiff cannot enjoy the favorable litigation system of the United States, and the American defendant evades the sanction of the American law. In the case of the baotou air crash, the plaintiffs also sued general electric co., and if the case is heard in the United States, the defendants could face substantial liability. However, the case was turned back to China. Due to the lack of legal space, relatively low quality of judges, lack of experience in aviation group litigation and pressure from some aspects, Chinese courts have not accepted the case for a long time.

Chinese civil procedure law there is no "inconvenient court principle" rule, but the Chinese society of private international law and drafting the law of the People's Republic of China private international law "to the rules, although not legally binding, but after all is a kind of trend of the good news, in fact, China has a lot of cases in the judicial practice has made the decision by this principle. Therefore, the author believes that it is necessary to clearly define this principle in our legislation.

The author recommended for China's legal reform of the judicial system, appropriate increase at the discretion of the judge, and judge this is using the basis of "inconvenient court principle", at the same time, apply on this principle, to private interests and public interests balance analysis, looking for a permission to give the plaintiff has jurisdiction adequate relief alternative court, and so on. In a word, the application of this principle should start from the actual situation of our country and draw on the advanced experience of British and American countries to make it more operable.

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