Case:

　　2007Years2Month10Day, Zhang (b) with a clothing company of Beijing city (Party A) signed the "contract", agreed by Party B to Party A in Hebei Province, the county agents, and the right to development to join in the region; Party A will of all its"XXX"Trademark authorizes Party B to use, Party B shall engage in business activities in a unified business model and specification. At the same time agreed by the parties, the contract dispute, the two sides through consultation, the consultation fails, any party can sign up to the arbitration committee for arbitration, or to sign a lawsuit in the people's Court (signed at: Beijing).

        After the signing of the contract, Party B shall pay the agency fee4Million yuan, and in Hebei Province, Wen'an County in the rental shop to start business. After the two sides due to product quality problems and disputes arising from, in the case of unsuccessful negotiations, Zhang Beijing a clothing company to the Hebei province Wen'an County People's court, request to terminate the contract, return the franchise fee and payment, and compensate for the losses.

Hebei province Wen'an County People's court, the defendant jurisdiction objection, that the plaintiff and defendant contract signing for Beijing, in accordance with the contract, under the jurisdiction of the people's Court of Fengtai District Beijing city should be the seat of the company, the people's court rejected the defendant after the jurisdiction objection.

The analysis of the case:

This case mainly discuss the franchise contract disputes"Dispute resolution"Clause. The parties in the contract, often agreed in the contract"Dispute resolution"In terms of its content, outside notting have apply for arbitration or bring a lawsuit, and whether the arbitration or litigation, the parties will generally take into account the economic cost, in the hope that their own side of the domicile address, the franchise contract is no exception.

In the case of the dispute resolution clauses in a contract, there are two problems:

A, the arbitration clause shall be invalid.

Arbitration and litigation, and has the advantages of easy and fast, so many parties in the contract, the contract dispute to arbitration for settlement. But concluded an arbitration clause in the contract, the parties often because the expression is not complete and the arbitration clause is invalid, and thus can not request the arbitration to resolve disputes to achieve in the dispute. There we met in lawsuit practice contract arbitration clause in the major problems:

First, agreed in the contract of the place of arbitration but not expressly agreed arbitration institution, or although have agreed, but the name of an arbitration institution agreed terms is not standard. Such as:"The dispute in the contract to arbitration","The dispute by arbitration body","The dispute by the relevant departments of the city of arbitration"Etc.. These conventions, in the dispute, arbitration, could be considered the agreement is not clear and shall not accept the application for arbitration.

Second, in the contract is agreed arbitration, litigation and agreed. If the contract:"The dispute to the contract to arbitration organ for arbitration, may also bring a suit directly to a people's court","The performance of the contract dispute by arbitration organization for arbitration, arbitration, to the people's court"Etc.. According to the China Arbitration Law and the provisions of the relevant judicial explanation, because this agreement both parties agreed arbitration and lawsuit, in violation of the arbitration and the uniqueness of the final, will be recognized as invalid contract arbitration, the arbitration application shall not be accepted.

In the case of the dispute settlement clause, there are two problems above. Both neither explicitly selected Arbitration Commission, and in terms of arbitration and the litigation contract, therefore, in this case on the dispute to arbitration clause is invalid.

Two, the location of the signing of an unknown, leading to the jurisdiction of the court is unable to confirm.

According to China's "civil law" article25Regulation: the parties to a contract may specify in writing the contract choice at the domicile of the defendant, the contract jurisdiction, the contract is signed, the plaintiff's domicile, people's Court of the place where the provisions of this law, but not illegal to jurisdiction. The Supreme People's court "on the application of (PRC Civil Procedure Law) the views of a number of issues" article24Provisions, the parties to a contract choice under the jurisdiction of the agreement is not clear or select the "Civil Procedure Law" article25Under the jurisdiction of two or more people's courts in the people's court shall, in accordance with the choice of jurisdiction agreement is invalid, "Civil Procedure Law" article24The provisions of the jurisdiction.

In this case it is agreed in the contract signed for Beijing, did not express in what place of Beijing, and the two sides have also differ, therefore, still belongs to the two sides agreed unknown. According to the provisions of the judicial interpretation about the jurisdiction of the court, both sides agreed terms is invalid.

In the agreement jurisdiction invalid situation, only applicable statutory jurisdiction. "Civil Procedure Law" article24Provisions, a lawsuit brought on a contract dispute, the defendant has his domicile or the contract under the jurisdiction of the people's court. In the present case, the plaintiff certainly hope not under the jurisdiction of the court at the domicile, Wen'an County People's court that has jurisdiction over whether? To solve this problem, we should first clear the contract is where? The signing of this case, the plaintiff and the defendant is the franchise contract, the franchisor trademark, trade name and other business resources authorized franchisee to use, the franchisee opened in a local store, for business use the franchisor's trademark management resources, and accept the franchisor's training and operational guidance. Thus, the two sides of the main rights and obligations are based on franchise store expansion, confirm the stores where the contract is performed is reasonable. Therefore, the case finally by Hebei province Wen'an County People's court is a reasonable and legitimate.

Notably, the "Regulations" of the Supreme People's court in civil cases has been discussed by, and in2008Years4Month1Japan began to implement. The clear will"The franchise contract disputes"Listed as"Intellectual property disputes"So, the people's court, in the treatment of the franchise contract disputes, should be in accordance with the relevant provisions of the "Civil Procedure Law", filing and hearing on intellectual property dispute.