国际私法上的平行诉讼问题研究
发布时间：2018-08-16 16:54
【摘要】：平行诉讼是国际民事诉讼中经常出现的问题,其产生与各国管辖权的积极冲突、当事人挑选法院等因素有密切联系。平行诉讼的存在虽然有其积极意义,但更多表现出对当事人合法权益、对国际间民商事案件管辖的协调等方面的不利影响。从各国立法和实践来看,大多数国家采取了规范和减少平行诉讼情形的做法。而我国目前基本采取的是不区分具体情况而一律放任的态度,鉴于我国参与国际交往的深入发展,带有特定历史痕迹的态度应当有所改变。本文在理清概念和研究对象的基础上,通过对国际上不同国家的立法和国际条约中解决平行诉讼问题做法的总结和分析,结合我国既有的立法和实际情况,提出完善我国平行诉讼问题应对机制的建议。 具体来说,本文共分为四章: 第一章是平行诉讼的发生。该章从国际私法上的平行诉讼的概念出发,分析认定平行诉讼的三项构成要件,指出国际私法上的平行诉讼分为国际平行诉讼和区际平行诉讼,从而准确地对研究对象和领域作出界定。在此基础上,继续总结和分析了平行诉讼的多发领域。 第二章是平行诉讼的成因和影响。该章分析了国际私法上平行诉讼产生的内在动因包括各国管辖权的扩展、当事人自身追求和国际法规范上的“放纵”。同时,还阐明了平行诉讼可能带来的消极影响,包括对司法资源的浪费、各国管辖权冲突加剧、当事人利益受损和对国际交往深入发展造成阻碍。 第三章是对既有解决国际私法上平行诉讼问题的方法的归纳和评析。该章将既有方法分为国内法方法和国际法方法。前者包括“一事不再理规则”、“不方便法院规则”、“承认预期规则”等;后者包括《布鲁塞尔公约》、《海牙公约》以及近年来国际私法会议所作的努力。本章具体分析了这些方法和国际条约中的先进之处和存在的问题,以期借鉴。 第四章是我国涉外民商事诉讼问题。本章主要致力于解决我国的问题,首先总结了我国有关平行诉讼的既有立法、参加的双边或多边条约以及相应的实践操作,然后从正反两个方面客观分析我国既有规范的合理性和不合理性,在这些努力的基础上,本章最后提出完善我国平行诉讼应对机制的总体思路和可采用的具体措施,并对我国处理内地与港澳台地区之间的区际平行诉讼问题作了特别的补充。
[Abstract]:Parallel action is a common problem in international civil action, which is closely related to the active conflict of jurisdiction of various countries and the selection of court by the parties. Although the existence of parallel litigation has its positive significance, it has more adverse effects on the legitimate rights and interests of the parties and on the coordination of international jurisdiction in civil and commercial cases. From the national legislation and practice, most countries have adopted the practice of regulating and reducing parallel proceedings. In view of the deep development of China's participation in international exchanges, the attitude with specific historical traces should be changed. On the basis of clarifying the concept and research object, this paper summarizes and analyzes the practice of solving the problem of parallel litigation in the legislation and international treaties of different countries in the world, combined with the existing legislation and actual situation of our country. Some suggestions on how to improve the mechanism of parallel litigation in China are put forward. Specifically, this paper is divided into four chapters: the first chapter is the occurrence of parallel litigation. Starting from the concept of parallel litigation in private international law, this chapter analyzes the three constitutive elements of parallel litigation, and points out that parallel litigation in private international law can be divided into international parallel litigation and interregional parallel litigation. In order to accurately define the research object and field. On this basis, we continue to summarize and analyze the multiple areas of parallel litigation. The second chapter is the cause and influence of parallel action. This chapter analyzes the inherent causes of parallel litigation in private international law, including the expansion of national jurisdiction, the parties' own pursuit and the "indulgence" in the norms of international law. At the same time, it also expounds the possible negative effects of parallel litigation, including the waste of judicial resources, the intensification of jurisdiction conflicts between countries, the damage to the interests of the parties and the hindrance to the further development of international exchanges. The third chapter summarizes and evaluates the existing methods to solve the problem of parallel litigation in private international law. This chapter divides the existing methods into domestic law methods and international law methods. The former includes the non bis in idem rule, the inconvenient court rule, the recognition expectation rule, etc. The latter includes the Brussels Convention, the Hague Convention and the efforts made by the Conference on Private International Law in recent years. This chapter analyzes the advantages and problems of these methods and international treaties in order to learn from them. The fourth chapter is the foreign-related civil and commercial litigation in China. This chapter is mainly devoted to solving the problems of our country. Firstly, it summarizes the existing legislation, bilateral or multilateral treaties and the corresponding practice of parallel litigation in our country. Then it objectively analyzes the rationality and irrationality of the existing norms in China from both positive and negative aspects. On the basis of these efforts, this chapter finally puts forward the general ideas and concrete measures to improve the response mechanism of parallel litigation in China. It also makes a special supplement to the inter-regional parallel litigation between the mainland and Hong Kong, Macao and Taiwan.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997
本文编号：2186596
[Abstract]:Parallel action is a common problem in international civil action, which is closely related to the active conflict of jurisdiction of various countries and the selection of court by the parties. Although the existence of parallel litigation has its positive significance, it has more adverse effects on the legitimate rights and interests of the parties and on the coordination of international jurisdiction in civil and commercial cases. From the national legislation and practice, most countries have adopted the practice of regulating and reducing parallel proceedings. In view of the deep development of China's participation in international exchanges, the attitude with specific historical traces should be changed. On the basis of clarifying the concept and research object, this paper summarizes and analyzes the practice of solving the problem of parallel litigation in the legislation and international treaties of different countries in the world, combined with the existing legislation and actual situation of our country. Some suggestions on how to improve the mechanism of parallel litigation in China are put forward. Specifically, this paper is divided into four chapters: the first chapter is the occurrence of parallel litigation. Starting from the concept of parallel litigation in private international law, this chapter analyzes the three constitutive elements of parallel litigation, and points out that parallel litigation in private international law can be divided into international parallel litigation and interregional parallel litigation. In order to accurately define the research object and field. On this basis, we continue to summarize and analyze the multiple areas of parallel litigation. The second chapter is the cause and influence of parallel action. This chapter analyzes the inherent causes of parallel litigation in private international law, including the expansion of national jurisdiction, the parties' own pursuit and the "indulgence" in the norms of international law. At the same time, it also expounds the possible negative effects of parallel litigation, including the waste of judicial resources, the intensification of jurisdiction conflicts between countries, the damage to the interests of the parties and the hindrance to the further development of international exchanges. The third chapter summarizes and evaluates the existing methods to solve the problem of parallel litigation in private international law. This chapter divides the existing methods into domestic law methods and international law methods. The former includes the non bis in idem rule, the inconvenient court rule, the recognition expectation rule, etc. The latter includes the Brussels Convention, the Hague Convention and the efforts made by the Conference on Private International Law in recent years. This chapter analyzes the advantages and problems of these methods and international treaties in order to learn from them. The fourth chapter is the foreign-related civil and commercial litigation in China. This chapter is mainly devoted to solving the problems of our country. Firstly, it summarizes the existing legislation, bilateral or multilateral treaties and the corresponding practice of parallel litigation in our country. Then it objectively analyzes the rationality and irrationality of the existing norms in China from both positive and negative aspects. On the basis of these efforts, this chapter finally puts forward the general ideas and concrete measures to improve the response mechanism of parallel litigation in China. It also makes a special supplement to the inter-regional parallel litigation between the mainland and Hong Kong, Macao and Taiwan.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997
【引证文献】
相关硕士学位论文 前2条
1 郭楚;国际民商事诉讼竞合法律规制问题研究[D];郑州大学;2013年
2 韩丹;国际民商事诉讼竞合问题研究[D];外交学院;2013年
，本文编号：2186596
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