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英语论文格式写作

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匿名  发表于 昨天 00:25 |阅读模式
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According to the Chinese Civil Procedural Law and its official interpretations, the general rule of allocating jurisdiction is based on the court’s power within its territorial ambit.[37] That is to say, the general jurisdiction granted by Chinese law over a commercial contract is basically dealt with in the light of defendant’s place of domicile.

Section 2 of the Civil Procedural Law is titled “Territorial Jurisdiction” and Article 22, in dealing with an individual person, states that “a civil lawsuit initiated against a citizen shall be under the jurisdiction of the people's court in the place where the defendant has his or her domicile; if the defendant's domicile is different from his or her habitual residence, the lawsuit shall be under the jurisdiction of the people's court in the place of his or her habitual residence”[38]. In relation to companies, it is prescribed that a civil lawsuit initiated against a legal person or any other organization shall be under the jurisdiction of the people's court in the place where the defendant has its domicile. Where the domiciles or habitual residences of several defendants in the same lawsuit are in the areas under the jurisdiction of two or more people's courts, all of those people's courts shall have jurisdiction over the lawsuit, and the CPL allows a plaintiff to choose one of the competent courts.[39]. If the plaintiff files a lawsuit with two or more competent courts, the court with which the lawsuit was first filed shall exercise jurisdiction[40].

2.2.2 Interpretation of domicile

2.2.2住所解读

Article 237 (Chapter XXIV) of the CPL further provides general principles illustrating that the law shall be applied in cases with no difference between pure domestic cases and cases that involve foreign elements. The provision emphasized that the rules stated by this Part shall be applicable to any civil lawsuit involving foreign interests within the territory of the People's Republic of China. Where it is not covered by the provisions of this Part, other relevant provisions of this Law shall apply.

From an overall view of these provisions, it is to be found that they are mostly in theory and less precise in wording. The present situation is that there are only four articles directly stated the rules on jurisdiction over matters containing international factors and the judges have to refer to other articles applied to national cases to help with making decisions when facing such a case. It is now a common understanding that there shall be established different stipulations separately for allocating jurisdiction in domestic case and those with foreign elements. However, there still lack of comprehensiveness of Chinese rules frequently leading the judges to make reference to “relevant” laws of the People's Republic of China.

With less legislative resource to refer, there left a huge problem of interpreting the key concept “domicile”. Article 4 of the Opinions of the Supreme People’s Court on Some Issues Concerning the Application of the Civil Procedure Law of the People’s Republic of China gives only a short interpretation stating that a citizen’s place of domicile is the place of his registered permanent residence; the place of domicile ofcies of immovable property. And these situations are probably being alongside with a commercial contract which this piece of work mainly endeavors to discuss.
Article 22 states that, “The following courts shall have exclusive jurisdiction, regardless of domicile: 1. in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated.”

3.1.2 The immovable property

3.1.2不动产

The first paragraph of Article 22(1) can be understood as “immovable property” cited by the provision must be situated in a Member State or States, and the courts of the Member state or states in which the property is situated will have jurisdiction exclusively over the relevant contract regardless the domicile of the defendant. This Article properly aims to apply to so-called land law disputes, and if the dispute dose not raise issues of land law it is much less likely to fall within the Article.[43] If the dispute arising out of a sale of land contract relates to property situated in two Member States the ECJ in Scherrens v Maenhout[44] has held that each Member State has normally exclusive jurisdiction over the property situated in the territory of the state.[45] Notwithstanding, this essay is not going to exam claims based on tort, it shall be mentioned that the definition of rights in rem is interpreted in a narrow sense and it would exclude actions for damages based on infringement of rights in rem or on damage to property in which rights in rem exist[46]

As the Brussels I Regulation should be interpreted in the light of the substantial body of case law decided under the Brussels Convention[47], there are cases concerned tenancies under the Brussels Convention. However, the expression “having as their object…tenancies of immovable property” has been shown to bear an autonomous and a narrow meaning. There cannot be found a decision of the Court of Justice giving the autonomous definition of “tenancies”. Although, in Jarrett v Barclays Bank plc ([1999] QB 1), the English Court of Appeal interpreted the term “tenancies” in a workable way that, if the relationship fell within the English definition of a tenancy, it would satisfy the autonomous definition, it is not to be referred to by other courts of Member States. All the ECJ precedence so far has only dealt with the question whether the proceedings “have this relationship as their object”. But are the case law sufficiently interpreted the phrase? The earlier case Sanders v Van der Putte[48], deals with a limited range of the issues that can arise in disputes between a landlord and a tenant. In this case, a dispute concerning an alleged agreement to take over the running of a florist’s business in a rented shop was held to fall outside Article 16(1) (now Article 22(1) of the Regulation) of the Convention, which based on that, although land law disputes should be assigned to the courts of the situs of the land, those arising, or equally capable of arising, out of other commercial contracts need not: there certainty was a tenancy of immovable property, but the proceedings did not have it as their object. Other than that, the ECJ gave no answer other issues such as whether claims for the payment of rent and other outgoings were within Article 16(1) of the Brussels Convention which is now Arti
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