A Study On The Application Of Law In Foreign Contracts Under The Perspective Of "Division Theory"

The theory of depecage in private international law is the process of cutting up a case into individual issues and choosing different law for each subject. It originated in the theory of statutes which put forward by Bartolus in 14 th century, he holds that according to the differences of the patterns of contracts, the essence of the contract effectiveness, the parties ability,the judge should choose different law. But depecage was put into effect by the Americans in 1934, the first restatement of law of conflict has been emphasis on that the effectiveness and the legal consequences of commitment should be governed by the law of the place of the conclusion of the contract while the obligation of perform and the right of seeking compensation for breach should be dominated by the law of the place where the contract fulfilled.In our country, research of depecage theory is very few, and we have some shortages on the choice of applicable law in foreign-related contracts. Depecage as the basis of conflict rules, can provide some improvement ideas.This paper is divided into four parts:The first part introduces the origin and development for depecage and its development in the field of tort and intellectual property.The second part analyze the base behind depecage, introduces the theory of private international law and its relationship with the depecage through literature analysis.The third part uses the comparative analysis to explore the typical continental law system and Anglo-American law system countries in foreign contract law applicable legislation and practical experience on the use of depecage.The fourth part also uses the case analysis, the analysis of foreign contract law applicable in our country and practice on the use of depecage. At last, put forward suggestions to improve our foreign contract law applicable legislation and practice.