誰是涉外商事訴訟中的強者?

Who Is the Haves in the Foreign-Related Commercial Litigation?

Student thesis: Doctoral Thesis

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Award date21 Apr 2022

Abstract

涉外商事诉讼在中国的发展与中国的改革开放相关联,涉外商事立法自上个世纪七十年代起步,至上世纪九十年代迅速发展,在2000 年之后,涉外商事法律体系逐步健全,从业法律职业群体的素质不断提高。时至今日,立法机关已经建立了完善的涉外商事法律体系,包括涉外程序和实体法。与此同时,从事涉外商事审判的法官和涉外商事法律事务的律师队伍也不断壮大。

涉外商事诉讼通常涉及中外双方主体,主体的特殊性决定了影响此类诉讼胜负的因素更为复杂和多样。以单一原因作为解释影响中外主体胜负的因素,过于简单,不能全面反应诉讼的全貌;考虑多种因素在诉讼中的彼此消长对诉讼的影响,常因其复杂性而难以判断。

本文通过对 2002 年至 2017 年的 1835 件涉外商事案件裁判文书的数据分析,以案件主体的胜负率为因变量,以时间、地域、标的额、案由、当事人类型等因素为自变量,探索涉外商事诉讼中影响各方主体胜负的显著性因素。数据分析发现,在此类诉讼中,中方主体更具有优势,外方主体处于劣势。涉外商事诉讼中外主体的胜诉率在上述自变量变化的情况下,存在差异。法人与个人同时叠加中外双方因素后,主体在诉讼中存在能力的差别。另外,案由对于诉讼结果具有一定影响。是否由本地律师代理,也具有较弱的显著性。

根据数据的发现,本文首先从法律制度、语言、文化角度结合法官、律师的访谈对相关问题进行了解释和分析,从涉外商事法律制度本身来看,对于外方当事人的程序性规范,立法上给予期间上的延长,但是由于境外证据的形式要求,使得这些期间上的延长并未形成较明显的优势。然而,语言所造成的诉讼中的劣势,远大于沟通障碍,该因素直接影响到案件律师的选任范围,从而限制了外方当事人的诉讼表现。最后,文化差异也对案件的胜负起到重要作用。该因素直接决定了外方当事人在诉讼中的行为模式,从而影响到其诉讼代理人的相应行为,最终影响案件的诉讼结果。总体来说,因上述因素对于外方在诉讼中的影响,使外方在诉讼中处于劣势。

从裁判者的角度来说,涉外商事诉讼的法官自身对于外方的倾向性几乎不存在,中国并未象美国那样出现外方因诉前对案件进行选择而使得其在诉讼中的胜诉率远高于本国主体的情况,其主要原因是中国的诉讼成本较低,诉讼的审理期间可控,因此,这种诉前选择在除了小标的案件之外的案件中显现不明显。中方当事人具有本地诉讼优势,在与法官的沟通、交流上比外方更有优势。本地律师的参与对于外方加强与法官的沟通具有重要作用。二审法院对于地方保护主义具有一定的纠偏性。但总体来说,涉外商事诉讼中的地方保护主义并不明显。

从诉讼主体本身的能力来说,中方、外方的在诉讼中的能力在多数情况下是法人的诉讼能力优于个人的诉讼能力,外方因素叠加之后,总体来说外方弱于中方同类主体,这些主体中胜诉能力最强的是中方法人主体。

总之,通过研究发现,涉外商事诉讼的胜诉率的中外主体差异,系多重因素影响而形成,以往单一因素的分析和研究存在一定局限性。
The rapid growth of the foreign-related litigation in China is highly associated with its reform and opening-up policies. The China’s foreign-related commercial legislation began at 1970s, and rapidly burgeoned at 1990s. After 2000, the foreign-related commercial legal system had been gradually ameliorated, and the legal profession community had been continually developed. As of now, China has established a sound foreign-related legal system ,which includes the procedural and substantive laws. Meanwhile, the number of judges and lawyers who participated in the foreign-related litigation has been gradually growing.

There are unusually foreign and Chinese parties involved in the foreign-related litigation. The factors that affect the litigation outcome are complex and diverse due to the particularities of the entities. It tends to be arbitrary that the winning ratio is only resulted from one single variable, which cannot explain the full picture of the foreign-related litigation in China. Given the complexity, however, it is also difficult to estimate how the multiple factors influence the wax and wane in the litigation outcome.

Based on 1,835 judgementst of the foreign-related litigation during 2002 and 2017, this thesis analyzes several independent variables including the date of judgments, location of adjudications, subject matter of the cases, the categories of the cases, the types of the parties, etc., and explores the significant factors that influence on the litigation outcome. The data shows that the Chinese parties are always the haves and the foreign parties are the have-nots. The data also indicates that the winning ratio depends on the independent variables mentioned above. According to ordinal logistic regression analysis, when the party is from China and is a company, it comes out ahead more. Moreover, the variable of the categories of the cases is also significant to the litigation outcome. The variable of the local representation of lawyers is also significant but weaker than others.

Drawing on in-depth interviews with judges and lawyers, this thesis finds that legal system, language and culture are crucial to understand the litigation outcome in the foreign-related commercial litigation. Firstly, the foreign-related procedural law that entitled the foreign parties a longer period fails to form the obvious advantages due to the requirements of the notarization and the authentication of the evidences. Secondly, the language disadvantage, affected far more than the communication barrier. It affects the range of the options of the lawyers, and then affects the performance of the parties. Finally, the cultural difference also influences the winning ratios significantly. It determines the behavior patterns of the parties as well as of the representation of the lawyers in the adjudication, and affects the litigation outcome in the end. To summarize, all of these factors acting together makes the foreign parties become the have nots.

In terms of judiciary, the Xenophobia plays little role in the Chinese court. In the US court, the foreign party conducts a pre-trial selection of the cases, the purpose of which is taking the most likely to win cases to the court when they enter the litigation. Except for the disputes with the lower subject matter, the pre-trail selection does not assist the foreign party to win in the litigation because of the lower litigation cost as well as the predictable adjudication period. The Chinese party is armed with the better communication with the judges. The participant of local lawyer is important to reinforce the communications with the judges. The appellate court can rectify the inclination of local protection of the primary court to some extent. In general, local protection is not obvious in the foreign-related litigation.

Regarding the capacity of the litigation parties, in most cases, corporate party wins more than individual party. Taken the foreign factor into consideration, Chinese party wins more than foreign party.

To summarize, this research finds that the litigation outcome between Chinese and foreign parties results from multiple factors. It thus shows the limitations of single factor analysis in the previous studies.

    Research areas

  • Foreign-Related Litigation, Litigation Capacity, Winning Ratio, Local Protection, Pre-Trail Selection, Repeat Player, One Shooter, Haves and Have nots