Can exclusive jurisdiction be applied to engineering construction disputes? According to Item 1 of Article 33 of the Civil Procedure Law of People's Republic of China (PRC) and Article 28 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of People's Republic of China (PRC), the lawsuit brought by the real estate dispute shall be under the exclusive jurisdiction of the people's court where the real estate is located.
The facts of a legal case
201310/8 A company in Ganzhou, the plaintiff, and Liao Mou, the defendant, signed the Fire Control and Smoke Exhaust Project Contract for a square in Shicheng County, stipulating that the plaintiff company would carry out the construction, and Liao Mou, the defendant, would pay the project amount according to the project completion schedule, and agreed that any dispute arising from this contract would be submitted to the People's Court of zhanggong district, Ganzhou for adjudication. After the completion of the project, the defendant Liao did not pay the project payment as agreed, so the plaintiff sued the Shicheng County People's Court, demanding that the defendant Liao and a real estate company in Ganzhou, the owner of the square, pay the remaining project payment and bear the liability for breach of contract. During the trial of this case, the defendant Liao raised an objection to jurisdiction, arguing that the plaintiff and the defendant Liao had reached an agreement on jurisdiction, and the case should be transferred to the People's Court of zhanggong district, Ganzhou City for handling by applying the principle of agreed jurisdiction.
divergence
Does the construction dispute case apply to the territorial jurisdiction of general contracting or exclusive jurisdiction? There are two different views on this.
The first view is that according to Article 24 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Construction Contract Disputes, the place of performance of construction contract disputes is the place where the construction behavior takes place. That is to say, exclusive jurisdiction does not apply to contract disputes of construction projects, but should apply the principle of general territorial jurisdiction of contract disputes according to Article 24 of the Civil Procedure Law of People's Republic of China (PRC). According to the principle of general territorial jurisdiction, if the place of performance of the contract is the place of performance of the contract, it shall be under the jurisdiction of the people's court at the place of construction or the place where the defendant is located.
In addition, according to the provisions of Article 25 of the Civil Procedure Law of People's Republic of China (PRC), the parties to a construction contract can agree in a written contract to choose the jurisdiction of the people's court where the defendant is located, where the contract is performed, where the contract is signed, where the plaintiff is located, and where the subject matter is located, without violating the provisions of the Civil Procedure Law on hierarchical jurisdiction and exclusive jurisdiction. In this case, Zhongyuan and the defendant agreed in a written agreement that the people's court where the plaintiff is located, that is, the people's court of zhanggong district City, Ganzhou City, did not violate the relevant provisions of hierarchical jurisdiction and exclusive jurisdiction. Therefore, the People's Court of Shicheng County shall decide to transfer the case to the People's Court of zhanggong district, Ganzhou City for handling.
The second view is that, according to the provisions of Item 1 of Article 33 of the Civil Procedure Law of People's Republic of China (PRC) and Article 28 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of People's Republic of China (PRC), the lawsuit brought by the real estate dispute shall be under the exclusive jurisdiction of the people's court where the real estate is located. Disputes over rural land contract management contracts, housing lease contracts, construction project contracts and policy housing sales contracts shall be governed by real estate disputes. That is, the exclusive jurisdiction of construction contract disputes should be under the jurisdiction of the people's court where the real estate is located. In this case, although the defendant and the defendant agreed on the court of jurisdiction, the agreement violated the provisions of exclusive jurisdiction and should not be applied. Shicheng County People's Court, as the court where the real estate is located, has jurisdiction, and should rule to reject the defendant Liao's objection to jurisdiction.
Comment and analysis
The author agrees with the second view. The reason is:
1. According to the provisions of the new Civil Procedure Law and the Interpretation of Civil Procedure Law, construction contract disputes of construction projects are under the jurisdiction of real estate disputes and belong to exclusive jurisdiction, so construction contracts of construction projects should also be under exclusive jurisdiction. Although Article 24 of the Interpretation of the Supreme People's Court on Applicable Legal Issues in the Trial of Construction Project Contract Disputes clearly stipulates that the place where the contract is performed is the place where the construction behavior is performed, this interpretation was issued on 25 October 2004, and the Xinmin Procedure Law was revised and implemented on 3 August 200412, and the Xinmin Procedure Law interpretation was implemented on 20 October/kloc-0.
2. Some people think that the judicial interpretation of the trial of the construction contract of the construction project belongs to the special law, and the civil procedure law and the interpretation of the civil procedure law belong to the general law. According to the principle that the special law is superior to the general law, the special law of construction contract interpretation should be applied. However, the author believes that according to the provisions of Article 83 of the Legislative Law of People's Republic of China (PRC), if laws, administrative regulations, local regulations, autonomous regulations and separate regulations and rules formulated by the same organ are inconsistent with the general provisions, special provisions shall apply; If the new regulations are inconsistent with the old regulations, the new regulations shall prevail. It is understood that the application of "special law is superior to general law" should meet two preconditions at the same time: first, "the legislature is the same organ" and second, "when the same concept or facts or matters are inconsistent". Obviously, the interpretation of the applicable law and the interpretation of the new civil procedure law in construction contract disputes cases were made by the Supreme People's Court, but the Supreme People's Court has no legislative power, so the first prerequisite has not been met, so the principle that special law is superior to general law should not be applied.