我国民事专属管辖制度之反思与重构——以大陆法系国家和地区的一般规定为参照

Reflection and Reconstruction of Exclusive Jurisdiction: From the Perspective of the Practice in Civil Law Countries and Districts

大陆法系国家和地区的民事专属管辖一般包括职能专属管辖、事物专属管辖与地域专属管辖三个方面。而我国的专属管辖则从属于地域管辖之下。依据大陆法系国家和地区的理论解读我国的专属管辖制度,不难发现我国的专属管辖概念过于狭窄,一些重要事项被排除在专属管辖之外,而现有内容也存在诸多问题。我国应当考虑接受广义的专属管辖概念,并在此基础上合理设定专属管辖案件的范围、调整专属管辖与其他管辖之间的关系以求充分发挥专属管辖的作用。

In civil law countries and districts, exclusive jurisdiction in civil procedure is generally divided into territorial, functional and subject matter exclusive jurisdiction, while in China, it is subject to territorial jurisdiction. From the perspective of civil law theories, we can readily find that the concept of exclusive juris- diction in Chinese laws is somewhat too narrow with many important matters not included, even included, with lots of defects. There are also many problems arising from the current provisions on exclusive jurisdiction. In fact, a much broader concept should be introduced, on the basis of which the scope of exclusive jurisdiction shall be clarified and the relation with other jurisdictions reasonably arranged so as to ensure it to work well.