民事地域管辖制度释疑——兼对《民诉法解释》规则的述评

Some Clarifications on the Civil Institution of Territorial Jurisdiction

在我国现行程序法和实体法两套合同履行地规则中,应当优先适用程序性规则,慎重对待统一履行地规则,并且考虑在协议管辖中对消费者的保护是否足够。应诉管辖在立案实质审查制下有适用可能。法院在向被告送达文书后不应继续依职权审查一般地域管辖问题,答辩期届满时适用答辩失权规则,对于法院就案件无管辖权时可以依职权移送管辖的规定,应当基于目的性解释限缩在被告提出管辖异议时。为了防止管辖异议中间上诉制度被滥用,管辖异议可以与一审实体问题并行审理。

After the amendment of the Civil Procedure Law in 2012 and the issuance of the related judicial interpretation this year,specific issues on the territorial jurisdiction have to be researched and clarified from the perspective of legal interpretation and doctrine.To begin with,although the different rules on the jurisdiction of contract matters both from the procedural and substantive aspects were harmonized by the judicial interpretation,some of them stay untouched.The procedural one should be preferred and the approach to forming a unified rule deserves more prudence.The consumer protection during the stipulation on jurisdiction may be enhanced.Secondly,another rule regarding on the assumption of the court's jurisdiction when a participating defendant fails to object it,is also possible even under our current substantial review in the registration phrase of proceedings,which comprises the conditions of fairing to object together with positive answer on the substantive issue.After judicial service on the defendant,the court is supposed not to continue reviewing the ordinary jurisdictional issues sua sponte,which opposes to the judicial interpretation.The court ought to apply the preclusional rule on the defendant's answer,with the only exceptions of subject matter as well as exclusive jurisdiction.Moreover,due to the different remedies of the plaintiff,the current judicial power of jurisdictional transfer should be limited to the situation with teleological reduction,that the defendant has objected to the court's lack of jurisdiction.In order to prevent the abuse of the intermediate appeal on the jurisdictional objection,we could develop a method of simultaneous adjudication of appellate proceedings and substantive matters at the first instance.