[excellent] agreement jurisdiction

Article 1: Agreement jurisdiction

1. If the parties have not agreed to the jurisdiction in advance, they shall take the jurisdiction of the "supreme defendant's place or the place where the contract is performed".

The determination of the place of performance of the contract of sale shall firstly be subject to the agreement of the parties to the contract; if there is no agreement or the agreement is not clear, the parties may reach a supplementary agreement through negotiation; if the agreement is still not fulfilled, then the relevant terms of the contract or trading habits Determine the place where the contract is fulfilled.

Note: How to determine the fulfillment of the contract

A. The place of performance of the general contract

1. If the parties to the purchase and sale contract have an agreement on the place of delivery in the contract, the agreed place of delivery shall be the place of performance of the contract; if there is no agreement, the place of performance of the contract shall be determined according to the delivery method: The place of delivery is the place where the contract is fulfilled; if the method of self-raising is adopted, the place where the goods are delivered is the contract fulfillment place; if the agent picks up the goods or delivers the goods according to the method of timber or coal delivery, the place of delivery of the goods is the contract fulfillment place. Where the actual place of performance of the purchase and sale contract is inconsistent with the place of delivery agreed upon in the contract, the actual place of performance shall be the place of performance of the contract.

2. The contract of processing is contracted, and the place of processing is the place of performance of the contract, except for the contract in the place of performance.

3. The property lease contract and the finance lease contract are the place of performance of the leased property, except for the place of performance in the contract.

4. Compensation trade contract, in order to accept the investment party's main obligation to perform as the contract fulfillment place.

5. According to the provisions of China's "Contract Law", if the place of performance is not clear, if the currency is paid, it shall be performed at the place where the currency is accepted; if the real property is delivered, it shall be performed at the place where the real property is located; and other targets shall be performed at the place where the party fulfilling the obligation.

B. The provisions of the Contract Law on the place of performance of the sale and purchase contract are mainly found in Articles 61, 62 and 141 of the Contract Law. Among them, Articles 61 and 62 are provisions in the General Regulations, and Article 141 is the provision in the Sub-rules.

Article 61 stipulates: "After the contract takes effect, if the parties have no agreement on the quality, price or remuneration, place of performance, etc., or the agreement is not clear, they may agree to supplement; if the supplementary agreement cannot be reached, it shall be determined according to the relevant terms of the contract or trading habits."

Article 62 stipulates: "If the parties concerned are unclear about the contents of the relevant contract and are still unable to determine in accordance with the provisions of Article 61 of this Law, the following provisions shall apply:

Where the place of performance is not clear, if the currency is paid, it shall be performed at the place where the currency is accepted; if the real property is delivered, it shall be performed at the place where the real property is located; and the other subject matter shall be performed at the place where the party fulfilling the obligation.

Article 141 stipulates that: "The seller shall deliver the subject matter in accordance with the agreed place. If the parties have not agreed on the place of delivery or the agreement is not clear, and the claim is still undetermined in accordance with the provisions of Article 61 of this Law, the following provisions shall apply:

Where the subject matter needs to be transported, the seller shall deliver the subject matter to the first carrier for delivery to the buyer;

The subject matter does not need to be transported. When the seller and the buyer enter into a contract to know that the subject matter is at a certain place, the seller shall deliver the subject matter at the place; if the target object is not in a certain place, the contract shall be concluded by the seller. When the place of business is delivered, the subject matter is delivered. "

C. If it is still impossible to determine the place of performance of the contract through the above channels, it shall be handled in accordance with the provisions of the contract law:

The general provisions of the contract law stipulate that if the currency is paid, the place where the currency is accepted is the place where the contract is fulfilled; if the real property is delivered, the location of the immovable property is the place where the contract is fulfilled; for other targets, the place where the party fulfilling the obligation is the place where the contract is performed.

The contract law sub-rule "sales contract" stipulates that if the subject matter needs to be transported, the place where the seller delivers the subject matter to the first carrier is the contract fulfillment place. If the subject matter does not need to be transported, the seller and the buyer know that the subject matter is at a certain place when the contract is concluded. The place is the place where the contract is performed; if the subject matter is not in a certain place, the place of business when the seller enters into the contract For the contract fulfillment.

Second, the jurisdiction can be agreed: the choice must be made at the location of the defendant, the place where the contract is executed, the place where the contract is signed, the place where the plaintiff resides, and the people's court where the subject matter is located.

Part 2: Agreement jurisdiction

Article 25 of the Civil Procedure Law provides for the jurisdiction of the contractual case. Under the premise of not violating the level jurisdiction and exclusive jurisdiction, the parties to the contract may agree in the written contract to choose the defendant's domicile, the place where the contract is executed, the place where the contract is signed, the place where the plaintiff resides, and the people's court where the subject matter is located. According to Article 24 of the Supreme People's Court's "People's Opinions", this choice needs to be clear. If the agreement to choose jurisdiction is unclear or if more than two people's courts are chosen, the choice is invalid, and the jurisdiction is determined in accordance with Article 24 of the Civil Procedure Law. . How to understand this provision is the key to determining the jurisdiction of the case. The author collected the approval and judgment of the Supreme People's Court, and made relevant opinions on whether the various choices in the contract in the practice case are in conformity with Article 25 of the Civil Procedure Law.

1. The Law of the People's Republic of China [1993] No. 72 noticed that the case where the “jurisdiction is the place where the goods arrive” is the location of the subject matter of the contract and the place of residence of the party, which can be regarded as a special agreement of the parties to the jurisdiction.

2. The Law of the People's Republic of China [1994] No. 158 considered that the agreement "treated by the people's court of the plaintiff's place" does not violate the provisions of Article 25 of the Civil Procedure Law.

3. The Law of the People's Republic of China [1994] Circular No. 256 states that the agreement “if there is a dispute at the location of the supplier” is in accordance with the provisions of Article 25 of the Civil Procedure Law.

4. The Law of the People's Republic of China [1994] No. 278 stated that the agreement of the plaintiff's local courts was in accordance with Article 25 of the Civil Procedure Law.

5. The Law of the People's Republic of China [1994] No. 307 replies that the agreement that each of the disputes can be brought before the local people's court can be considered as the choice of the people's court of the plaintiff's domicile.

6. The Legal Notice [1995] No. 86 noticed that the agreement of “prosecution to the people's court of the plaintiff's place” complies with the provisions of Article 25 of the Civil Procedure Law.

7. The letter of reply [1995] No. 89 considers that the agreement of “the jurisdiction of the people's court where the observant party is located” does not comply with the provisions of Article 25 of the Civil Procedure Law and shall be deemed invalid.

8. The “Notice on the Designation of the 39583 Army Construction Office and Gao Ziqiang and Qi Xihua's Purchase and Sale of Automobile Contract Dispute Cases” states that the provisions of “may file a lawsuit in the people's courts of their respective jurisdictions” are in line with the Civil Procedure Law.

Article 25 stipulates that it shall be valid.

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9. The letter of reply [1995] No. 157 states that if the court agreed to be selected is outside the five categories of people's courts listed in Article 25 of the Civil Procedure Law, it shall be deemed invalid because the agreement is beyond the scope of the law. As the basis for determining jurisdiction.

10. The civil ruling of No. 94 of Min Er Zhong Zi believes that, in accordance with the agreement in the contract of the case that “when a dispute arises during the execution of the contract, both parties may sue in the people’s court of their respective residence”, although both parties have the right to file a lawsuit, The people's courts in the domicile also enjoy jurisdiction respectively, but according to Article 33 of the Supreme People's Court's Opinions on the Application of Certain Issues in the Civil Procedure Law of the People's Republic of China, any party files a lawsuit and accepts the case for the court of its residence. After that, the people's court of the other party's domicile may not repeat the case, thereby rejecting the jurisdiction of the people's court of the other party's domicile. Therefore, the essence of the agreement is to choose the jurisdiction of the people's court where the plaintiff resides. The agreement not only does not belong to the “choice of the jurisdiction of two or more people's courts in the people's courts as stipulated in Article 25 of the Civil Procedure Law”, but also fully complies with the provisions of the relevant provisions of the Civil Procedure Law, and shall be deemed to be valid and Determine the jurisdiction of the case.

11. The civil ruling of Min Er Zhong Zi No. 186 stated that the agreement on “the dispute was settled by the court in the place where Party B is located” is valid.

Judging from the above-mentioned materials, the Supreme Court’s criterion for judging the effectiveness of the jurisdiction of the agreement is basically to see whether the agreement can be recognized as the five types of courts stipulated in Article 25 of the Civil Procedure Law, but there are also places where this judgment standard is violated. For example, the Law of the People's Republic of China [1994] No. 256 Notice and the Miner Second Word No. 186 Civil Ruling. The author believes that “if there is a dispute resolved at the location of the supplier” and “the dispute is settled by the court in the place where Party B is located” is actually a violation of Article 25 of the Civil Procedure Law. The reasons are as follows:

1. The law stipulates that the purpose of the agreement is to reflect the autonomy, fairness and efficiency of civil rights. For the current stage of our country, it also plays a role in reducing local protection and maintaining the balance of rights between the two parties. Therefore, the courts determined by the jurisdiction of the agreement should have a relatively balanced degree of pros and cons of the parties to the contract. The terms of the agreement are strictly stated in Article 25 of the Civil Procedure Law. When the contract is concluded, the place where the plaintiff’s domicile and the defendant’s domicile are different for the contractor’s sponsors, the protection of the two parties is the same; The place where the contract is signed and the location of the subject matter can be clarified by the parties to the contract according to the contractual agreement. The possibility of ambiguity when the agreement is reached is very small. The parties can make a choice from their respective interests when determining. The party is also fair. It is determined to be the jurisdiction of the “supplier’s location” and “the location of Party B”. Although it is ostensibly such that the agreement meets the requirements determined by the jurisdictional court of the agreement, that is, a people’s court, it may become “substantial” when the actual case occurs. Choose "more than two courts. In a case, the supplier shall file a lawsuit for a dispute over the purchase and sale of the goods, and the court shall be in the place of the supplier according to the agreement. At this time, the agreement is essentially the “place of the plaintiff’s residence” as stipulated in Article 25; product quality

In the case of a dispute over damages, the court of jurisdiction is still at the location of the supplier, and at this time it becomes the “place of the defendant’s residence”. The same is true for the result of the agreement as “the location of Party B”. Obviously such an agreement is contrary to the provisions of Article 24 of the Civil Opinions. As long as there is a dispute, the dispute is finally imposed by the court of one of the domiciles. In the days when local protectionism still exists, the balance of power between the parties is also tilted. Such an agreement violates the principle of fairness.

2. The law stipulates that the expression of the five types of optional courts is equivalent to the determination of the connection points of foreign-related cases. Because in the procedural law, the domicile of natural persons, legal persons or other organizations may also change during the performance of the contract. For example, when a natural person relocates a household registration or a legal person changes his place of business across the jurisdiction of the court, the plaintiff shall be in accordance with the law when the lawsuit is filed and the contract is concluded. The courts determined by the “place of residence” and “place of the defendant’s residence” are obviously inconsistent. If the jurisdiction is determined according to the state at the time of the conclusion of the contract, it is obviously not in conformity with the principle of close connection and does not conform to the principle of facilitation. Therefore, it is also wrong to say that the jurisdiction of the agreement must be fixed to the opinion of a people's court.

In summary, the author believes that in the jurisdiction of the agreement, it must be strictly in accordance with the five types of courts stipulated in Article 25 of the Civil Procedure Law. The jurisdiction of the agreement in violation of Article 25 of the Civil Procedure Law shall be invalid.