Research On The Conflict Rules Of Foreign-Related Consumer Contracts

Consumer protection is a product of a certain stage of human society.Since the early 20 th century,the free market order has been subverted with the continuous development of commodity economy and the emergence of monopoly capitalism and there is a qualitative change in the strength of the operator and the consumer.The rise of modern consumer protection legislation is linked closely with the worldwide consumer protection movement.For the special protection of consumer,from the beginning of domestic civil entity legislation,the inferior status of consumer should be protected through the legal entity stipulation so as to balance the interests of consumer and operator.With the economic globalization,the consumer protection has the tendency of complication due to the more convenient transportation,better internet technology,more frequent transnational consumer behavior and diverse cross-border consumer consumption patterns.Foreign-related consumer contracts are associated with multiple countries in international association.In this case,the consumer protection rules in domestic substantive law seem powerless and must be supplemented by the adjustment method of Private International Law to ensure the truly achievement of consumer protection.While in the improvement of domestic consumer protection legislation,various countries present a better orientation of legal humanistic solicitude and substantive justice.The concept of the weak interests protection,in most cases,is implemented in the conflict of laws legislation which pursues the substantive justice and ensures the consistency and certainty of law results by applying rules.Specific to the methodology,the formulation of Applicable Law of Contract in modern Conflicts of Law system is mainly based on two principles: the closest connection and party autonomy.Under the guidance of substantive justice thought,the two main principles of application of law contract are amended and restricted to a certain degree by various countries' conflict law legislation so as to protect the weak.The characteristic performance has been amended that applying the law of consumer habitual residence rather than that of the operator's original residence.In consumer contract,principle of autonomy of will is restricted not only in selection mode and scope but by the mandatory rules and public policy reservation so as to prevent the use of dominant position to weaken the strength of consumer protection.Law of the Application of Law for Foreign-related Civil Relations promulgated and implemented in 2010 makes up for the blanks of China's foreign-related consumer contract law,reflects the concept of law application of our country and the legislative advancement: first of all,separate the foreign-related consumer contract from the common foreign-related contract.The application rules of foreign-related consumer contract law should be stipulated exclusively according to its particularity.Article 42 determines clearly the consumer's habitual residence as the general rule applicable to consumer contract law."Consumer habitual residence " is adopted for the first time,which is in line with international development trend and embodies the special protection of consumer.On the basis of respecting the party autonomy,it takes the weak status of consumers into consideration,especially endows the unilateral legal options for consumers and express clearly the restriction on the party autonomy.Nevertheless,through theoretical analysis and comparison with the related legislation of other countries,there exist lots of problems in China's foreign-related consumer contract law,such as overly strict rigorous party autonomy;the absence of mandatory rules in protecting foreign consumersinterests;impertinent defining manner of active consumer and passive consumer which goes against the achievement of legislation purpose and so on.Such problems have exposed a great deal of legislation idea and legislative technique insufficient in the construction of foreign-related consumer contract conflict law system,which needs to be remedied in future legislation and practice.