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On the dispute of jurisdiction in contract disputes
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  • Categories:Culture
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  • Time of issue:2020-04-15 01:06
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(Summary description)

On the dispute of jurisdiction in contract disputes
Top

(Summary description)

  • Categories:Culture
  • Author:
  • Origin:
  • Time of issue:2020-04-15 01:06
  • Views:
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On the dispute of jurisdiction in contract disputes
Recently, the legal department of the company received the final ruling of Guiyang intermediate people's Court on the jurisdiction dispute of a sales contract dispute case. The ruling rejected the ruling made by the people's Court of guanshanhu District of Guiyang city on the grounds that "the place of dispute settlement agreed upon by both parties at the time of signing the sales contract was" Anshun City Court ", which was unclear, and in accordance with the provisions of Article 23 of the civil procedure law...", and supported our appeal request. According to the law, the case was transferred to the defendant's place, Qidong City, Jiangsu Province Court hearing. The ruling surprised the Ministry of justice, and at the same time caused us to think deeply about the jurisdiction dispute.
 
 
 
The so-called jurisdiction refers to the jurisdiction of the first level court to accept civil and commercial or criminal cases. It seems to be a simple sentence, but the content it really involves is quite complex, and there are many relevant legal provisions and judicial interpretations. In order to meet the legal reality of construction enterprises, the author starts from the common cases in the engineering field and briefly states the relevant content of jurisdiction.
 
 
 
1、 Exclusive jurisdiction. According to the law, some cases must be managed by a specific court, such as construction contract disputes, contract disputes with the delivery of real estate as the object, etc. the parties cannot agree to jurisdiction in the court where one party has his domicile by agreement. In case of any dispute between the two parties, it can only be solved by the people's court with jurisdiction in the place where the project is located. Our construction enterprises have the most contact with construction contract disputes, construction labor subcontracting disputes and so on. If these cases are settled in court, they can only be settled in the people's court where the project is located.
 
 
 
2、 Jurisdiction of agreement. Agreement, also known as Consensual Jurisdiction or agreed jurisdiction, refers to the jurisdiction court that both parties choose to solve their disputes by agreement before or after the occurrence of contract disputes or property rights disputes. In our construction enterprises, the contracts of purchase and sale of materials and lease of scaffold steel pipes can be settled in a court according to the will of both parties. For example, it can be agreed not only at the buyer's or the seller's location, but also at the place where the goods are actually delivered, or even at the people's Court of any third place.
 
 
 
3、 How to fight for jurisdiction in our favor. As I mentioned above, in case of any dispute in the field of construction, the exclusive jurisdiction shall apply, that is, the people's court with jurisdiction in the project location shall take the action to solve it (the amount involved in the case may be large or small, the first instance may be in the basic court or the intermediate people's court, and some large-scale cases may even be directly sued to the Provincial Higher People's court). But can this restriction be broken? The answer is "yes.". In judicial practice, for the construction field of construction projects, experienced owners and employers can use arbitration to break through the limitation of exclusive jurisdiction. For example, a real estate developer a in Nantong city invested in a real estate development in Xiangcheng District of Suzhou City and signed a general construction contract with a construction enterprise B in Hangzhou. If there is no agreement on the place of dispute settlement in the construction contract of both parties, according to the relevant laws and regulations, in the future, if there is a dispute between both parties, Suzhou City, where the construction project is located, shall be the jurisdiction. Even if both parties agree that "in case of any dispute, both parties agree to settle the dispute in the people's Court of Chongchuan District, Nantong City", it is invalid and has no legal binding force. However, in the process of signing the contract between a and B, a uses its advantageous position as the employer to agree: "in case of any dispute, both parties agree to submit it to the" Nantong Arbitration Commission "for arbitration.". Then this agreement is completely legal and can break through the principle of exclusive jurisdiction in the field of construction engineering. No court has the right to accept this case. Therefore, as a construction enterprise, try to strive for a relatively favorable judicial environment for itself, that is, the owner or developer can not agree to arbitrate to their domicile, at least in the people's court where the project is located; at the same time, we can make full use of the advantages of the employer in the process of labor subcontracting, and try to agree the dispute to "Nantong Arbitration Commission for arbitration" ”Or the Arbitration Commission with certain personal relationship and resource advantages shall solve the problem.
 
 
 
4、 The principle of "if there is an agreement, it shall be agreed; if there is no agreement, it shall be legal". Take the example of the purchase and sale contract of materials and the lease contract of construction materials which are often encountered by our construction enterprises. If both parties have agreed on the place of dispute resolution in the contract, once the two parties have an economic dispute, they must go to the court initially agreed by both parties to settle the dispute. If either party raises a jurisdictional objection to this, the court will not support it. This is the principle of "agreement according to agreement" in judicial practice. However, if both parties fail to agree on the place of dispute resolution in the contract terms, or the agreement is not clear and specific, what kind of legal consequences will occur. Here, the author provides that the people's court, in accordance with the principle of "no agreement according to law", may make the following decisions:
 
 
 
(1) It may be transferred to the people's court where the defendant is located. According to Article 23 of the Civil Procedure Law of the people's Republic of China, a civil action brought against a citizen shall be under the jurisdiction of the people's court in the place where the defendant has his domicile; if the defendant's domicile is inconsistent with his habitual residence, it shall be under the jurisdiction of the people's court in the habitual residence. A civil action brought against a legal person or other organization shall be under the jurisdiction of the people's Court of the place where the defendant has his domicile“
 
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