一般应诉VS特别应诉

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一般应诉 general appearance

与特别应诉〔special appearance〕相对。当事人的到庭应诉表明接受法院对案件的管辖,对法院的某些失误,诸如缺少有效的传票、传票未按时送达等,不再提出异议。目前在美国联邦法院及采用《联邦民事诉讼规则》〔Federal Rules of Civil Procedure〕的州法院中,一般应诉与特别应诉均已不用。

The act by which a defendant completely consents to the jurisdiction of the court by appearing before it either in person or through an authorized representative thereby waiving any jurisdictional defects that might be raised except for that of the competency of the court. A general appearance differs from a special appearance in which a defendant agrees to submit to the jurisdiction of the court for a restricted purpose, such as to test whether the Service of Process made upon him or her was legally sufficient. 以下为相关例句,供参考:

例句1

A general appearance is made when a party first comes into court and appears in the case. The party may come for any reason that recognizes the authority of the court. Some states follow common law and do not consider a general appearance made when a party comes into court purely to challenge the court’s personal jurisdiction over the defendant–this is instead known as a special appearance. 

当一方当事人第一次出庭并应诉时,则为一般应诉。当事人可以以任何承认法院权威的理由来应诉。一些州遵循普通法,并不认为一方当事人出庭进行一般应诉纯粹是为了质疑法院对被告的属人管辖权——这被称为特别应诉。

例句2

The distinction is notable because in these states a general appearance is considered consent by the defendant to personal jurisdiction, and thereby waives the defendant’s right to challenge personal jurisdiction or service of process.

区别是显而易见的,因为在这些州,一般应诉被视为被告同意属人管辖权,从而放弃被告质疑属人管辖权或送达诉讼的权利。

例句3

A lawyer may be leery of making a general appearance unless all details of representation (such as the amount and payment of his/her fees) have been worked out with the client. This is distinguished from a special appearance which is only for a particular purpose or court session, and does not make the attorney responsible for future conduct of the case.

除非与委托人协商好代理的所有细节(如费用的金额和支付),否则律师可能会对一般应诉持怀疑态度。这不同于只为特定目的或法庭开庭而进行的特别应诉,也不使律师对案件的未来行为负责。


特别应诉 special appearance

指目的仅为对法院的管辖权提出异议的应诉。目前,美国《联邦民事诉讼规则》〔Fed. R.Civil P.〕及采用该规则的州已废除了此种应诉,对于法院管辖权的异议可以在诉答程序或审前申请中提出。

The act of presenting oneself in a court and thereby submitting to the court's jurisdiction, but only for a specific purpose and not for all the purposes for which a lawsuit is brought. A party makes a special appearance before a state court for the sole purpose of objecting to the court's jurisdiction over that party. If the party makes a general appearance to respond to the lawsuit, instead of a special appearance, then Common Law dictates that the party thereby waives any objection to the court’s jurisdiction over her. A party may object to the court's jurisdiction for a number of reasons, such as when Service of Process was insufficient or defective, there is a variance between the complaint and the summons, or the lawsuit was brought in the wrong court. When a party wants to make a jurisdictional objection, she has the right to appear for the special purpose of making that objection, but according to common law, the party must clearly and specifically state to the court that she is specially appearing. 例句如下:

例句1

A special appearance is a term used in the American law of civil procedure to describe a civil defendant’s appearance in the court of another state solely to dispute the personal jurisdiction of the court over that defendant. 

特别应诉是美国民事诉讼法中使用的一个术语,用来描述民事被告在另一个州的法院出庭应诉,仅仅是为了对法院对该被告的属人管辖权提出争议。

例句2

In response to the apparent inequity presented by this situation, most states have passed statutes permitting the defendant to make a special appearance in the courts of the state to contest jurisdiction, without further subjecting themselves to the jurisdiction of the court.

针对这种情况造成的明显不公平,大多数州都通过了法规,允许被告在该州法院进行特别应诉,对管辖权提出质疑,而不进一步将自己置于法院的管辖之下。

发布于 2021-04-28 09:31:13
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