International Air Transport Relations Law Applies

For the overall structure, this thesis consists of three parts as follows: introduction, main body and conclusion.The introduction part briefly introduces kinds of legal issues caused by the invention of the transport method of air, draws forth the two methods of solving conflict of laws: the method of conflict law regulation and the method of uniform substantive law regulation, points out the realistic significance to our country of the research on the application of law issue of the international air transport.The main body has the following five chapters. Chapter 1 "Survey". This chapter begins with aircrafts, sets forth the principle of nationality and registration of the aircrafts established by international conventions and domestic legislation, and the definitions and the sources of the aviation law. Based on this, introduces the conflict of laws issue existing in the international air transport relations, brings up the two methods of solving the conflict of laws in the international air transport relations. The article considers that, the uniform substantive law, which is the main method of solving the international air transport disputes, takes an important part in the field of international air transport. Since the administration of the international air transport is mainly bilateral system, the international society has been taking efforts to establish a wholly new multilateral administration system of the international air transport. The chapter finally sums up the attempts of the international society to incorporate the air transportation into WTO, points out precisely that, although it is a long and hard journey to establish a multilateral system of the air transport, as long as the international society takes common efforts, a wholly new multilateral administrative system of the international air transport will come true eventually in the framework of WTO.Chapter 2 and Chapter 3 focus on the uniform substantive law regulation of the international air transport relations. The reason of putting the uniform substantive law regulation before the conflict law regulation is mainly because of the consideration of the applicable order of these two methods in the legal regulation of the international airtransport, the priority and compulsory Application of uniform substantive law is the main character of the legal regulation of the international air transport. The article sets forth in Chapter 2 the main content of the convention on private air law, analyzes with an emphasis on the carrier's liability system and the basis of jurisdiction stipulated in the "Warsaw system"( mainly the 1929 Warsaw Convention) and the 1999 Montreal Convention, combs out the skeleton of the development of the uniform substantive law, and makes it clearer.Chapter 3 focuses thoroughly on the four controversial issues in the concrete application of the uniform substantive law. These four issues are : first, concerning the definition of the "accident ";second, concerning the mental injury issue;third, the issue of delay;forth, the application of the doctrine of forum non convenience. The article considers that, there must be two elements to construct an aircraft "accident", first, the occurrence of the accident is accidental, unexpectedly and beyond the normal operation of the aircraft;second, it has certain connection with the operation of the aircraft. Concerning the mental injury, the court should first consider the context meaning and the purpose of the law. If the mental injury enduring by the plaintiff is proved to have some relation with the accident, it is no doubtedly need to compensate the mental injury of the plaintiff. It should be the trend of the development of the international air law to compensate the mental injury probably rising from the international air transport, especially the pure mental injury. Concerning the issue of delay, the article considers that, the 261/2004 rule of EU establishes the new common rule of compensating for the passenger and providing help for the passenger concerning the refuse to take passengers, cancellation or long-time delay of the flight. It is a pioneering work in legislation, and is the legislative model in protecting the passengers' right in the field of air transport. Concerning the doctrine of forum non convenience, the article considers that the application of the doctrine of forum non convenience has still been debating until now, and needed to explore further.Chapter 4 focuses on the conflict law regulation of the international air transport. Although the uniform substantive law takes a great part in the solution of the disputes of the international air transport, its scope of regulation is after all limited. Even though the international convention stipulates about certain question, under certain" circumstances, it is needed to be solved according to the regulation of the domestic law.So the conflict law regulation still works. This chapter explores the issue of the conflict law regulation of the international air transport relation from three aspects of the property right relation of aircrafts, the contract relation of international air transport and the international air torts relation. The article mainly expresses the following opinions: first, the law of the registration place of the aircraft is the main point of contact in the solution of the international air transport relation. It is used to solve the conflict of laws of property right relations of the aircrafts, and also the main principle of applicable law in solution of the conflict of laws in the international air torts relations. Second, unlike field of other contracts, the doctrine of party autonomy is not the principal doctrine in the solution of the conflict of laws of the international air transport contract. In the field of international air transport, because of the compulsory application of the uniform substantive law, the application of the doctrine of party autonomy is limited. Although the countries have not eliminated the application of the doctrine of the party autonomy in the field of the international air transport, in the judicial practices, the doctrine of party autonomy basically hasn't work. Concerning the conflict law regulation of the international air torts relations, the article characters the air torts into the four aspects of torts occurring in the inside of the aircraft, the crash of aircrafts, the aircraft accident causing death of passengers or damage of cargoes and the damages of the third party of the ground (water) caused by aircraft, and explicates the applicable law of them.Chapter 5 focuses on the legislation and practices of our country in the field of international air transport. The article first analyzes the relevant regulation of Civil Aviation Law in China, explores the relation between the international convention and the domestic law. As for the relation between the international convention our country has ratified and the domestic law, the article expresses: the priority of the application of the international convention and the supplement of the application of the domestic law. Second, from the view of the application of the uniform substantive law and the conflict law, chooses two representative cases in the judicial practice in our country, and doubts the basis of the judgments of our courts of the two cases, meanwhile expresses the author's own altitude. Finally, points out some tentative idea of modifying the Civil Aviation Law in China. Because the liability limits stipulated in the Civil Aviation Law has been greatly lower than the stipulation of the 1999 MontrealConvention, which our country has ratified, it should be modified. The article considers that, concerning the liability limits of the international air transport carrier, we can adopt two stipulating methods: first, directly stipulate "the liability limits of the international air transport carrier should apply the 1999 Convention for the Unification of Certain Rules Relating to International Carriage by air ". Second, stipulate in the rules that "the liability limits of the international air transport carrier should be decided according to the stipulation concerning the liability limits of the carrier of the international convention which China has ratified." Concerning the issue of whether there should be an individual chapter stipulating the application of law issue in the Civil Aviation Law, the article considers that, there is no need to set up an individual chapter to stipulate "the application of law of the relation involving foreign elements", otherwise it will not only destroy the system of the Civil Aviation Law, and unfit the legislative trend of the international civil aviation law, but also, it is a waste of legislative resources. The application of law of the international air transport relations should be stipulated in the Code of Civil Law which has been drafting now.The conclusion part sums up the basic views of the article. Meanwhile points out that, the significance of the article is, through the further research on the uniform substantive law and the conflict law in the field of international air transport, to master the method of solving the disputes of the international air transport, to have an insight in the legislative trend in the field of the international air transport, to guide our country's relevant legislation and judicial practices, to achieve the objective of promoting the development of international air transport in our country.