On Jurisdiction Conflict of the Litigation of A Right of Subrogation——The Improvement of Article 38 of the Interpretation of the General Principles of Contract Compilation(Draft for Comments)
According to article 14 of the interpretation of several issues in the original Contract Law of the People's Republic of China(Ⅰ),the litigation of a right of subrogation is governed by the defendant's domicile.Nevertheless,due to two legal relationships between the creditor and the debtor,and between the debtor and the debtor in the litigation of a right of subrogation,when the secondary debtor defends on the basis of the jurisdiction agreement and the arbitration agreement between him and the debtor,a jurisdictional conflict rises,resulting in different results of the jurisdiction rulings of the subrogation lawsuit.Litigation of a right of subrogation cannot blindly break through the principle of relativity of contract.The legal rights of creditors should be first protected.Next,the autonomy of will between the debtor and the secondary debtor should be properly taken into account.The jurisdiction agreement and arbitration agreement between the debtor and the secondary debtor cannot bind the creditor in principle,and the subrogation litigation should still be governed by the principle of"the defendant's domicile";The court will only support the objection of secondary debtor if the secondary debtor has filed a lawsuit or applied for arbitration and requested a suspension of subrogation action.Article 38 of the Interpretation of the General Principles of Contract Compilation(Draft for Comments)proposes two options for the conflict of jurisdiction of subrogation litigation,and it is recommended to adopt the first option.At the same time,"the opposite party applies to the debtor for arbitration before the conclusion of the court debate of first instance,or brings a lawsuit to the people's court agreed in the jurisdiction agreement"in the articles can be amended to"the opposite party brings a lawsuit to the people's court agreed in the jurisdiction agreement during the submission of the defense,or applies to the debtor for arbitration before the first hearing".
the litigation of a right of subrogationjurisdiction agreementarbitration agreementthe principle of relativity of contractthe autonomy of will
万方数据
