An Empirical Study On Chinese Courts Applying The Choice Of Law In General Tort

This dissertation offers fresh perspective on the Article 44 of PRC Act on the Laws applicable to Foreign-related Crivil Relationships 2010(“Conflicts Act”)judicial practice by empirically investigating and analyzing all judgments rendered by Chinese Mainland courts between 2010 and 2018.It presents findings on status quo of judicial application,existing problems,and suggestions for improvement.Chapter 1 mainly discusses the status quo of judicial application of article 44 of the Conflicts Act,and unfolds from 5 aspects,such as the distribution of the year of the case,the main points of cases,the method of choice of law,the type of applicable law.Firstly,in terms of the number of cases,foreign-related infringement cases have increased year by year from 2011 to 2018.Secondly,in the main points of cases,the largest number of cases are maritime infringement cases,the second are tort liability disputes,followed by disputes related to the company,intellectual property infringement disputes,personality rights infringement disputes.Thirdly,the choice of law is diverse,but the lex loci delicti is applied most frequently.Fourthly,as far as the results of the law were applied,the ratio of the lex fori to the law of non-courts is grossly unbalanced.Chapter 2 analyzes the problems existing in the application of article 44 of the Conflicts Act.Firstly,the scope of foreign-related general tort conflict is generalized.Secondly,the applicable way of foreign-related general tort conflict is wrong,such as the improper application of the principle of the closest connection,overlapping applied connection points.Thirdly,the function of enhancing the flexibility of the choice of law is not as remarkable as that we imaged and the tendency of the lex fori is still obvious.Fourthly,the cases collected in this paper also have common general problems in foreign-related civil and commercial trials,such as qualitative errors,failure to explain the reasons for the application of the law.Chapter 3 are drawn from precedent basic observation.At present,it is not realistic to revise the Conflict Act,and we still need to pay more attention to the following issues in the future.Firstly,foreign-related tort conflict in our country are necessary for legislation supplement,which should focus on the special tort not stipulated by law such as environmental infringement and traffic accidents.Secondly,on the generalization of the scope of application,judges should distinguish between general tort cases and special tort cases,especially to pay attention to the provisions of other laws.Thirdly,the judge should exclude the application of the principle of the most significant relationship in the field of general tort and conditionally choose the connecting factors set in article 44.Finally,when dealing with foreign-related infringement cases,our courts should maintain the necessary heights to promote international civil and commercial exchanges,uphold the principle of equal treatment of domestic and foreign laws,and abandon the bad mentality of avoiding the application of extraterritorial laws.