Research On The Application Of Law For Cross-border Consumer Contracts

Cross-border consumption as a social phenomenon has become common in the contemporary International community which accompanied by the further strengthening of the trend of globalization and the rapid development of Internet technology, presents a more complicated form. The system of substantive law in various countries is independent on the issue of foreign consumer protection, and the difference is very large, which poses a great challenge to the law applicable to Cross-border consumer contracts. After the American conflict of laws revolution, the legislation of Private International Law pays more attention to pursuit of the substance justice of the conflict of laws, especially to protect the interests of the weak. In terms of Corss-border consumer contracts, the corresponding performance is the law applicable to consumer contracts is independent of the law applicable to general contracts. With the reduction of International trade barriers and the rapid development of network technology, the number of cross-border consumer contracts has been increased sharply. Furthermore, the consumer appears more weak position under network trading environment. All of these need to rebalance the rights and interests allocation between consumers and business dealers. Therefore, the timely research of the law applicable to cross-border consumer contracts, On the one hand can effectively protect the legitimate rights and interests of foreign consumers, and coordinate with International consumer protection legislation. On the other hand, considering with the reasonable resolution of cross-border consumer contract disputes, the balance requirement of substantial justice and formal justice in the conflict of laws and the rebalance of rights and interests of consumers and business dealers, as well as the influence of Internet development, it can formulate a reasonable, practical system of rules applicable to cross-border consumer contracts, which is complied with China's national conditions.Chapter 1: General issues of cross-border consumer contracts. This chapter describes several basic problems on cross-border consumer contracts. Firstly, it introduces the emergence and development of global consumer protection movement. And combined with the reality of cross-border consumer contracts' prosperity, it analyzes the the concept of consumer contracts which be proposed separately when the conflict rules are formulated. Secondly, from the the consumer' definition, the basic situation of the contracting party, the scope of the subject of the consumer contracts, and the meaning of “cross-border”, this thesis comprehensively analyzes the concept of Cross-border Consumer Contracts. Thirdly, this paper expounds the solutions to the coincidence of the consumer contract liability and the product tort liability in the process of the identification of the cross-border consumer contracts. Finally, this paper comprehensively analyzes the value basis of the independence of the law applicable to the consumer contract-- the principle of the protection of the interests of the weak.Chapter 2: The methods of choice of law and the rules of application of law on cross-border consumer contracts. Whether the legislative value orientation has been gradually changed after the conflict of laws revolution, or the gradual emphasis on the protection of consumer rights and interests in the rapid development of cross-border consumption, the aim to strengthen consumer protection legislation in the field of conflict of laws is consistent in every countries. However, the written legislations and judicial practices of countries are different under the guidance of a consistent goal. The chapter analyzes the main methods of choice of law on cross-border consumer contracts, such as the doctrine of Party Autonomy, the doctrine of the Most Significant Relationship as well as the theory of Characteristic Performance, the theory of Governmental Interests Analysis, the Better Law theory, and the Dépe?age theory, etc. Furthermore, expounds the four models of law applicable rules on consumer contracts all over the world, and comments the development trend of the conflict rules in this field.Chapter 3: The applicable law to Cross-border Consumer Contracts under network environment. Network technology development which is the new elements of modern conflict of laws legislation must be considered. Cross-border Consumer Contracts show a lot of new features in the full involvement of the Internet platform: The generalization of format contract and the relative concealment of clauses; The complexity of subject and object recognition; The involvement of the third party trading platform and the transportation industry; Diversity of means of payment; as well as the internationalization and globalization of transactions. All these features put a new challenge to the traditional law applicable rules of consumer contracts in the Internet environment. In this chapter, we make an in-depth analysis on the protective choice of law rules(take EU as an example) and the neutral choice of law rules(take America as an example) in the field of cross-border consumer contracts around the Intenet environment, and make a comprehensive exposition of the applicable status quo of the existing provisions.Chapter 4: Construction of the Chinese law applicable rules to the Cross-border Consumer Contracts. This chapter which based on the discussion of the theories and practices in the previous chapters, makes a comprehensive exposition of the legislative and judicial practice of law applicable rules on China's Cross-border Consumer Contract. Furthermore, in reference to the foreign advanced legislation, this chapter analyzes shortcomings of the current regulations of China, which mainly includes: The definition of the concept of consumer contract is not clear; Limitation of the unilateral legal option rights; Lack of substantive evaluation criteria of legal selection effect; And the irrationality of the deprive of the business-dealers' legal option rights. Finally, this chapter puts forward the systematic construction of the law applicable rules of cross-border consumer contract law in China, and tries to design the specific conflict rules.