Research On The Legal Application Of Foreign Contract

Foreign contract is relevant to the law of two and more countries or scopes of law, however, in different country and scope of law, the regulations of application of foreign contract law are different, the results of the application of law in different country or in different scope of law are usually not the same, some are quite diverse. Therefore, the research of the application of foreign contract law is always one of the most sensitive and most active fields in Private International Law. Nevertheless, so far, research of application of foreign contract law issues still remains in the principles, such as "Autonomy of parties "and "the most significant relationship", There are some problems of the application of special foreign contract law and the application of foreign contract law under special circumstance. The researches of those problems are quite superficial. The situation in China is even more unsatisfactory. The legislation concerning the application of foreign contract law is too principle, inconvenient for operation. Although the Supreme Court in China issued on 7^th October, 1987, there are some specific regulations of application of Foreign Contract Law. Firstly, there are some specific problems .Secondly, it is nothing but judicial interpretation. Current Constitution and law of our country hasn't clearly stipulated judicial interpretation as source of law. Thirdly, sincehas been enforced on 1^st October, 1999, while original and judicial interpretation have been abolished. There were eight years of relatively blank period of application of foreign contract law in China. Although issued by the Supreme Court re-stipulated the application problems of foreign contract law, the regulations are still beyond satisfaction, serious study is necessarily required.This article is divided in to four parts:Part One: Based on the legislation of the concept of foreign contract and doctrinal research debate, re-explain the concept of foreign contract law,Moreover,according to three aspects such as the complexity of Foreign Contract Law itself , the complexity of applicable regulations of Foreign Contract Law and the complexity of concatenate factors for Foreign Contract Law, discuss the complexity of application of Foreign Contract Law in order to elucidate the significance of research on both theoretical and practical fields.Part Two: In historical analytic ways, deeply investigate the emergence and development of applicable law of Foreign Contract. In order to make a survey of the "Party Autonomy Principle" of application of Foreign Contract Law and the concept, emergence and history of development of "Theory of Proper Law of Contract", as well as some limitation and supplement issues of the application of Foreign Contract law, and so on. In international community on the issue of application of Foreign Contract Law, expound that it is inevitable that" Party Autonomy Principle" take place of the simple ways that confirm the legislation of applicable contract law and practice according to rigid link space factors such as contract conclusion place and fulfilling place, "Theory of Proper Law of Contract" also replace "Theory of Autonomy" inevitably.Part Three: For the international community on the lack aspects of legislation,practice and theory research of application of Foreign Contract Law, explore thoroughly and deeply on the application of legal issue of special foreign contract law and the application of foreign contract law under special circumstance. Address my opinions specifically on how to confirm applicable law of foreign contract when norms of conflict change and when connection points change. Since party in foreign contract can choose the applicable law together, when factors above that can confirm the specific relationship of parties' right and obligation in foreign contract, the best way is to re-negotiate those issues by parties of foreign contract, but with the exception of special provisions of laws and regulations.Part Four: It is the important part, mostly research on the legislation and practice of the application of our foreign contract law, mainly discuss issued by the Supreme Court on July 2007.Offer some advice that further improve the legislation and practice of the application of our foreign contract law; China should conditionally and moderately admit implied selection on the application of Foreign Contract Law; There should be some limitation when parties change the applicable law of foreign contract, the situation of evading law is not allowed to exit. After party chose the applicable law of foreign contract, due to subjective and objective change, the content of applicable law chosen by parties changes or the conflict codes and connection points chosen by parties for applicable law of foreign contract change. relevant law, regulations or judicial interpretations in China should be made to confirm the applicable law of foreign contract. China should make special provision for the issues such as legal application of foreign e-commerce contract.