British civil and commercial jurisdiction system

下面为大家整理一篇优秀的paper代写范文- British civil and commercial jurisdiction system，供大家参考学习，这篇论文讨论了英国民商事管辖权制度。英国的民商事管辖权制度是以普通法为基础的，它与大陆法系中的管辖权制度之间存在着重大的差别，但晚近的发展却表明了英国管辖权制度正逐步地向大陆法系靠拢。英国国际民商事管辖权制度独具一格，它们重视管辖权在整个国际民商事诉讼中的地位却一点也不亚于其他国家。它们历来把国际民商事案件的管辖权与法律适用问题并列为国际私法上的两大主要问题，并且认为管辖权问题较之法律适用问题更为重要。

The United Kingdom of Great Britain and Northern Ireland referred to as the United Kingdom, generally known as the United Kingdom, in the administrative division it is divided into England, wales, Scotland and Northern Ireland four parts. Britain does not have a single legal system, but several legal systems coexist within a political union: the common law system in England and wales, the continental law system in Scotland, and the similar legal system in Northern Ireland. Britain is the source of civil procedure and international private law system of the common law system. It brought common law and equity law to all parts of the world when it was colonizing. The civil and commercial jurisdiction systems of England for the construction and development of the jurisdictional mechanism of common-law system, and has very important influence, since the 1990 s, Britain has made remarkable achievements in civil litigation reform, April 26, 1999, the British civil procedure rules in 1998, it is basically the end of the high court and county courts apply different rules of procedure of history. With the development of The Times and the influence of the eu's unified legislation on private international law, the theory and practice of private international law in Britain have also made new progress. By studying the British civil and commercial jurisdiction system, it is not only possible to understand the operation of the British civil and commercial jurisdiction system and learn the advantages and reform results of the British civil and commercial jurisdiction system, so as to improve the relevant system in China. Its significance lies in grasping the mechanism and evolution of the common law civil and commercial jurisdiction system from the source.

Jurisdiction over international civil and commercial cases is an important content of private international law or conflict law and plays an important role in private international law. No matter what kind of foreign-related civil and commercial cases occur, one of the first issues to be resolved is jurisdiction. British and American international civil and commercial jurisdiction system is unique, they attach importance to jurisdiction in the whole international civil and commercial litigation status is no less than other countries. They have always listed jurisdiction and application of law in international civil and commercial cases as two major issues in private international law, and considered that jurisdiction is more important than application of law. Morris said, "in the conflict of laws in Britain, the issue of jurisdiction is in a special position. It often happens that if jurisdiction is satisfactorily settled, the choice of law will not be a problem.

Exercising jurisdiction according to effective control is a basic method to determine the jurisdiction of civil cases concerning foreign affairs in common law countries such as Britain and the United States. The so-called effective control principle, also known as the actual control principle, refers to the jurisdiction of the court of the jurisdiction of the case has the "actual power", that is, if the jurisdiction of the country can not be a specific case of the judgment to effectively implement, it can not exercise jurisdiction over the case.

The principle of voluntary acceptance is that in a suit against a person, a person who was not originally subject to the jurisdiction of a British court may, by his own act, exclude his objection to the jurisdiction of the court, thereby giving the court a right over him which he did not have, but which he had because of his obedience. In a suit against a person, the court has the right to exercise such jurisdiction over the defendant as long as it considers that the defendant's act constitutes jurisdiction over a person that he would not otherwise have accepted. Another notable feature of the jurisdiction system of British courts is that they adopt flexible civil and commercial jurisdiction system different from other countries. In Britain, domestic jurisdiction rules are applicable to analogies of international civil and commercial jurisdiction, and there is no independent system. And British court acknowledges that a foreign court has the same jurisdictional basis, and they are visible in the civil and commercial jurisdiction systems of England, decided to their country's courts have jurisdiction over international referee directly jurisdiction with a foreign court to the legality of international jurisdictional competence of indirect international referee to the jurisdiction of the two systems are consistent, as long as the court opinion in Britain, the basis of a foreign court with jurisdiction is in line with the British court, jurisdiction of the foreign court is legal.

The British standards for exercising jurisdiction vary with the types of litigation. The relevant jurisdiction rules are mainly divided into action in person am, action in rem and other categories. The aforementioned effective control principle runs through the whole jurisdiction system and is the core principle of the common law jurisdiction system.

The first is litigation against persons. Litigation against persons refers to the litigation between the parties, which requires the defendant to act or not act as a specific act, so as to solve the problem of rights between the parties. It mainly includes tort litigation and contract litigation, which can be traditionally filed in English high court, high civil court, tax civil court, equity court, maritime court, church court and other common law courts. Equitable relief actions for special performance, injunction, revocation, alteration, etc. After trial, the court decides whether the plaintiff's claim is justified. The most remarkable feature of this lawsuit is that the effectiveness of the judgment only restricts the litigant. As long as the dispute over the rights between the parties is settled, the judgment only restricts the litigants, no matter whether the lawsuit involves the possession of the right to tangible objects, it is a lawsuit against the person.

The second category is litigation in rem. The general law system of countries said that the litigation in rem is the object of litigation, the purpose of litigation is to request the court to determine the ownership of a property or other rights. According to the common law theory, things are rights that can be claimed against all people, such as ownership. Therefore, the judgment effect of such litigation may affect anyone's interest in something, that is, any third party. This is one of the most important differences between it and litigation against people. At common law, the scope of action in rem is small. Morris also held that the only action in rem in English law refers to a maritime action against a ship or other articles related to the ship such as goods or freight charges, or against aircraft or hovercraft, etc. in the backbench division of the high court.

The proceedings of the high court of England begin with the issuance of a summons or summons order. And the service of summons or the item with this likeness, it is the necessary foundation that the court exercises jurisdiction, when summons can and should serve defendant lawfully only, the court can exercise jurisdiction accordingly, otherwise the court cannot exercise jurisdiction to its. It can be seen that in the proceedings against persons, the rule of British jurisdiction is the rule of service of summons. In other words, any defendant served with a summons in the United Kingdom is subject to the jurisdiction of a British court over personal action. This is a far cry from the rest of continental Europe and has been criticised by many academics as unfair to defendants outside England. Moreover, as long as it is related to the original cause of action, such jurisdiction shall remain in force even if the accused leaves the country, but it shall not remain in force if the action is a different action not closely related to the present action. The application of this principle varies depending on whether the defendant is an individual, partnership, or company.

Under common law, jurisdiction over a natural person in a suit against a person depends on the defendant's physical presence within the jurisdiction of the court at the time of service of the summons. There are three important indivisible principles of service: the defendant must appear within the jurisdiction of the court at the time of service. The defendant is the appearance of "nature". The residence of the accused must be outside a member state of the European Community.

Prior to 1891, summons could not be served by law on the partnership itself, even if the partnership operated in the United Kingdom, unless the partners were in the United Kingdom or voluntarily subject to jurisdiction. This caused so much inconvenience that in June 1891 the Supreme Court changed its rules. Under this rule, partnerships operating in the UK may Sue or be sued on their behalf. According to the rules, the ticket can be served in accordance with the law in appeared in the British at that time, to any member of the partnership business service to the partner of one person or more, or delivered to the main business of the partnership in the UK to control or management of the partnership affairs, in these cases, the summons all thought has formally serve the firm.

According to the common law, if the defendant was not in court summons according to law, and no said voluntarily accept the jurisdiction of the courts, the court has no jurisdiction will, so unfair for the plaintiff is predictable, because although the defendant in the lawsuit was not in England, and his home and property or cause lawsuit v. for or infringement may be located in the territory of England. Depriving the plaintiff of the right to prosecute the accused merely because he was not in that country at the time of the action is in essence an internationally wrongful act rejected by justice.

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