应诉管辖规则的中国生成史
发布时间：2018-08-30 10:00
【摘要】：应诉管辖规则属于国际通行规则,但我国真正接纳它已是2012年的事情,1991年《民事诉讼法》规定涉外程序的应诉管辖其实是改革开放背景下法律需要与国际接轨的结果。基于有错必纠的传统观念、对处分原则的过度限制、起诉制度的限制等原因,我们长期未真正接受应诉管辖规则。随着当事人自我负责观念的强化、配合删除管辖错误再审事由的需求以及对有错必纠观念的重新审视,2012年民事诉讼法修正时,终于接纳了应诉管辖规则。应诉管辖规则进入民事诉讼法之后,设定法官告知义务的问题虽被理论界和实务界提出,但由于其并非应诉管辖规则的"标配",再加上我国现实原因,致使未能写入《民诉法解释》。《民诉法解释》第35条被视为移送管辖规则的组成部分,但其实应当在应诉管辖规则框架下理解,至于司法解释制定者所追求的规范目标可以考虑通过缺席判决与拟制自认的逻辑在应诉管辖规则内解决。
[Abstract]:The rules of response jurisdiction belong to the international general rules, but it has been accepted by our country in 2012. In 1991, the Civil procedure Law stipulated that the jurisdiction of responding to foreign proceedings was actually the result of the need for the law to be in line with the international standards under the background of reform and opening up. Based on the traditional concept of correcting mistakes, excessive restrictions on the principle of punishment and the limitation of the prosecution system, we have not really accepted the rules of response jurisdiction for a long time. With the strengthening of the concept of self-responsibility of the parties, the need to remove the reasons for the retrial of jurisdictional errors and the re-examination of the concept of correcting mistakes, the Civil procedure Law of 2012, when amended, finally accepted the jurisdiction rule of responding to suit. After the rules of response jurisdiction have entered the civil procedure law, the problem of setting up the obligation of informing judges has been raised by the theoretical and practical circles, but it is not the "standard allocation" of the rules of response jurisdiction, plus the practical reasons of our country. Article 35 of the Civil procedure Law interpretation is considered to be an integral part of the transfer rule, but should in fact be understood within the framework of the response jurisdiction rule, As for the normative goal pursued by the judicial interpreter, consideration can be given to solving the problem in the rules of response jurisdiction through the logic of default judgment and fictitious admission.
【作者单位】： 吉林大学法学院;
【分类号】：D925.1
[Abstract]:The rules of response jurisdiction belong to the international general rules, but it has been accepted by our country in 2012. In 1991, the Civil procedure Law stipulated that the jurisdiction of responding to foreign proceedings was actually the result of the need for the law to be in line with the international standards under the background of reform and opening up. Based on the traditional concept of correcting mistakes, excessive restrictions on the principle of punishment and the limitation of the prosecution system, we have not really accepted the rules of response jurisdiction for a long time. With the strengthening of the concept of self-responsibility of the parties, the need to remove the reasons for the retrial of jurisdictional errors and the re-examination of the concept of correcting mistakes, the Civil procedure Law of 2012, when amended, finally accepted the jurisdiction rule of responding to suit. After the rules of response jurisdiction have entered the civil procedure law, the problem of setting up the obligation of informing judges has been raised by the theoretical and practical circles, but it is not the "standard allocation" of the rules of response jurisdiction, plus the practical reasons of our country. Article 35 of the Civil procedure Law interpretation is considered to be an integral part of the transfer rule, but should in fact be understood within the framework of the response jurisdiction rule, As for the normative goal pursued by the judicial interpreter, consideration can be given to solving the problem in the rules of response jurisdiction through the logic of default judgment and fictitious admission.
【作者单位】： 吉林大学法学院;
【分类号】：D925.1
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