“Jurisdiction” is the most important issue to be considered when filing a lawsuit
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How to determine the jurisdiction court of construction contract disputes? Signing a contract is a very frequent thing in our work and life
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The important contents of the contract, such as the subject matter, price, performance period, liability for breach of contract, will be clearly agreed
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However, in addition to the above-mentioned main terms of the contract, many people do not know that the big guy can also stipulate in the contract the court of jurisdiction in case of dispute
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If there is no agreement on the jurisdiction of the court, it may lead to disputes, we need to go to unfamiliar places to “file a lawsuit”, and spend more litigation costs
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Therefore, the clever use of the agreement of the court of jurisdiction is also an important weapon to protect one’s own side in the process of litigation
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▌ what is the agreed jurisdiction? The agreed jurisdiction, also known as the agreed jurisdiction, refers to that both parties jointly determine the jurisdiction court to deal with the dispute by written agreement before or after the dispute
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China’s “Civil Procedure Law” determines the agreement jurisdiction system, which reflects the respect for the party’s autonomy and disposition right, and is conducive to the settlement of disputes between the parties
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According to Article 34 of the civil procedure law, the parties agree that the court of jurisdiction must meet the following conditions: 1
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A case governed by agreement must be a contract dispute or a property right dispute
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01
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Disputes involving personal relationship, such as marriage, adoption, inheritance, guardianship, etc., can not be governed by agreement
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However, according to Article 34 of the interpretation of the civil procedure law, the parties’ property disputes arising from cohabitation or after the dissolution of marriage or adoption can be governed by agreement
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02
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Due to the fixed nature of the court of appeal, the parties can only agree on the court of first instance, not the court of second instance
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Therefore, if both parties agree in the contract that the court of second instance has jurisdiction, the agreement is invalid
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2
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The jurisdiction of the agreement must be in written form, and the oral agreement is invalid
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01
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According to Article 31 of the interpretation of the civil procedure law, if an operator uses standard terms to conclude a jurisdiction agreement with a consumer and fails to draw the consumer’s attention in a reasonable way, and the consumer claims that the jurisdiction agreement is invalid, the people’s court shall support it
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02
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The invalidity of the contract does not lead to the invalidity of the jurisdiction clause of the agreement
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According to Article 57 of the contract law, the invalidity, cancellation or termination of a contract shall not affect the validity of the independent provisions on dispute resolution in the contract
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Therefore, as an independent dispute resolution clause in the contract, the jurisdiction clause of the agreement does not lose its validity because the contract is invalid, revoked or terminated
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03
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If there are major defects in the elements of the contract, the jurisdiction clause of the agreement will be invalid
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For example, one party to the contract is a person without civil capacity when signing the agreement (such as under 8 years old), and if the contract is stamped with a false official seal of the unit or the signature of the legal representative, the people’s court will not recognize the validity of the jurisdiction agreement
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3
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The court under the jurisdiction of the agreement shall be the people’s Court of the place where the dispute is actually related, such as the place where the defendant has his domicile, the place where the contract is performed, the place where the contract is signed, the place where the plaintiff has his domicile, the place where the subject matter is located, etc
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01
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The courts governed by the agreement are not limited to the courts in the five places mentioned above
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As long as the agreed court of jurisdiction has practical connection with the dispute, it is also qualified
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02
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If the parties agree to have jurisdiction over the court, they must be able to determine which court or courts have jurisdiction at the time of prosecution; if they cannot determine which court has jurisdiction at the time of prosecution, the jurisdiction of the agreement will be invalid
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03
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The jurisdiction agreement stipulates that the people’s Court of more than two places which have actual connection with the dispute shall have jurisdiction over the dispute, and the parties may choose one of the people’s courts to sue
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If the parties sue in different courts respectively, the court that accepts the case first obtains jurisdiction
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4
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The parties agree that the jurisdiction of the court shall not violate the provisions of the Civil Procedure Law on the level jurisdiction and exclusive jurisdiction
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01
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Level jurisdiction refers to the division of labor between the upper and lower courts in accepting cases of first instance
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Article 17 to Article 20 of the Civil Procedure Law of our country have special provisions on the jurisdiction of different levels
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The main legislative purpose of Hierarchical Jurisdiction is to achieve the reasonable positioning of the functions of courts at all levels and the balance of workload on the basis of the implementation of the trial level system, and the classification standard of the people’s court for hierarchical jurisdiction will be constantly adjusted with the social development, the situation of the courts in various places and other factors, and it is difficult for the parties to accurately predict in many cases
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Based on the above reasons, if the agreement jurisdiction violates the level jurisdiction, it is relatively invalid
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The people’s court should not only deny its legal effect on the ground that the agreement jurisdiction violates the level jurisdiction, but also recognize it according to the specific situation
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02
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Exclusive jurisdiction refers to some special types of cases
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According to the law, they can only be subject to the jurisdiction of specific courts
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Other courts have no jurisdiction, and the parties may not change the jurisdiction system by agreement
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If the jurisdiction by agreement violates the exclusive jurisdiction, it shall be absolutely invalid
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At present, the main provisions of China’s exclusive jurisdiction are as follows: the lawsuit brought due to real estate disputes shall be under the jurisdiction of the people’s Court of the place where the real estate is located; the lawsuit brought due to disputes arising from port operations shall be under the jurisdiction of the people’s Court of the place where the port is located; the lawsuit brought due to inheritance disputes shall be under the jurisdiction of the people’s Court of the place where the decedent died or where the main heritage is located; the lawsuit brought due to the fact that the decedent is in China The people’s Court of the people’s Republic of China shall have jurisdiction over lawsuits brought by the people’s Republic of China over disputes arising from the performance of contracts for Sino foreign joint ventures, Sino foreign contractual joint ventures and Sino foreign cooperative exploration and development of natural resources
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▌ we can agree on the main situations of the jurisdiction court
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Below, we will sort out the common problems in the process of agreement jurisdiction through several real cases, so as to provide useful reference for us to sign the contract
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Is the agreement valid if the jurisdiction is clear but the court level is not clear? Let’s take a look at a case: case 1: key words: level jurisdiction in the case of jurisdiction objection appeal of disputes over the joint venture and cooperative real estate development contract between Donghai Ruijing asset management (Shanghai) Co., Ltd
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(hereinafter referred to as Donghai Ruijing company) and Zhang Baoling and Zhang Lei, No.6 Supreme People’s jurisdiction (2020), the equity transfer and repurchase agreement signed by both parties states that “this Agreement shall be signed by the following parties” The parties signed this agreement in Pudong New Area, Shanghai on June, 2016
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Article 9 1.27 stipulates that “all disputes arising from the performance of this Agreement shall be settled by the parties through negotiation
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If the negotiation fails, it shall be under the jurisdiction of the people’s Court of Pudong New Area, Shanghai
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So is the jurisdiction court in this case under the jurisdiction of the people’s Court of Shanghai Pudong New Area or the Shanghai financial court located in Huangpu District? The Supreme People’s court held that the lawsuit in this case was a contract dispute
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The agreement between the two parties is clear about the territorial jurisdiction of the disputes arising from the performance of the contract, but it is not clear about the level of jurisdiction, so it can not be recognized that the agreement on jurisdiction between the two parties is clear and effective, and finally the agreement on jurisdiction is invalid
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As for the determination of the court in charge of the case, it should be accepted by the court in the place where the defendant is domiciled or where the contract is performed in accordance with Article 23 of the civil procedure law
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If the parties agree that the basic court shall have jurisdiction, but the amount of litigation object exceeds the acceptance standard of the basic court, is the jurisdiction agreement valid? Let’s take a look at the following cases: case 2: key words: territorial jurisdiction in the case of jurisdiction objection of contract dispute between fantu company and Lin Huacheng, etc
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in the Supreme People’s Court (2015) No
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207, Article 6 of the loan contract provided by the party Lin Hua stipulates that “this loan agreement is as follows If the negotiation fails, they can bring a lawsuit to the people’s court, and both parties agree that the court of jurisdiction shall be the people’s Court of Siming District, Xiamen city
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“.
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