Inspiration To The Improvement Of Chinese Contracts Law From The Development Of Principles Of International Commercial Contracts 2004

On the annual convention held by International Institute for the Unification of Private Law UNIDROIT council in Rome from 19th to 21st in April 2004, the delegates attending the convention passed in agreement"Principles of International Commercial Contracts 2004(PICC)", which was a international commercial contract unification law of extreme modernity, representation and authority. As early as in 1994, UNIDROIT drew up and announced"Principles of International Commercial Contracts1994 (PICC1994)". Our country used PICC1994 for reference as 1999 version"Contract Law of the People's Republic of China"(CLPRC) was drawn up. Now PICC has been modified completely. In contrast, the establishment and development of our country's contract law system is still in its initial stage. The articles that are added to the new PICC, such as Authority of agents, Third party rights are still vacant in CLPRC. This text hereby analyzes the added articles in PICC to find out its fresh characteristics through comparatively analytical method, inductively integral method and demonstration analysis on the basis of relevant codes, books and articles. After that it intends to find out and study the shortcomings of CLPRC by comparing with the relevant questions in PICC, aiming to further perfect our country's contract law system and contract regulations, to promote market exchanges and security, and finally to display, in deed, the consistency with international traditions.This text is divided into three parts to launch a discussion:The first part is to elaborate the new development of PICC, together with the general analysis of the added articles. As to the newly added contents about PICC, we ought to be definitely clear that it is not the modification to PICC1994, but addition to new topics. Firstly, the preamble is added with section 4 and section 6, which are respectively the references from"Principles of European Contract Law"and 1980"UN Convention on Contracts for the International Sale of Goods"(CISG). Secondly, there are two new articles in chapter one and five respectively handling"inconsistent behavior"and"release by agreement". Thirdly, it is about agent limitation, which are learnt and extended from"Convention on Agency International Sales of Goods"(CAISG) in Geneva 1983. Fourthly, it is about the third party rights, namely,"Contracts in favor of third parties","Third party identifiable","Exclusion and limitation","Defenses","Revocation"and"Renunciation"etc. Fifthly, it is concerning Set-off. Sixthly, it involves the assignment of rights, transferring of obligations and assignment of contracts, which are learnt from"UNIDROIT Convention on International Factoring"in 1998 and"United Nations Convention on the Assignment of Receivables in International Trade"(UNCARIT) in 2001. Seventhly, it is about limitation period, which is learnt from"United Nations Conventions on the Limitation Period in the International Sale of Goods"(UNCLPISG).The second part is to analyze the new developments of PICC to summarize six natures. Firstly, the system is much more complete. Principles includes ten chapters:"Preamble","Chpter1: General provisions","Chpter2: Formation and authority of agents","Chpter3: Validity""Chpter4: Interpretation","Chpter5: Content and third party rights","Chpter6: Performance","Chpter7: Non-performance","Chpter8: Set-off","Chpter9: Assignment of rights, transferring of obligations and assignment of contracts", "Chpter10: Limitation periods". Secondly, the items and notations are more accurate and detailed. See, for example, chapter7 section1"non-performance in general", art. 2.1.17"a contract…cannot be contradicted or supplement by evidence of prior statements or agreement", art. 7.4.2"Damages must not enrich the aggrieved party"and so on, all made proper modification. Thirdly, the application patterns are more flexible. For example,"The principles applied in the absence of any choice of law by the parties". In the context of international commercial arbitration such rules are very flexible, permitting arbitral tribunals to apply"the rules of law which they determine to be appropriate". Normally arbitral will apply a particular domestic law as the proper law of the contract, yet exceptionally they may resort to a-national or supr-national rules such as the Principles. Fourthly, the functions are more and more extensive. See, Preamble:"the Principles as a means of interpreting and supplementing domestic law."Fifthly, the principle of sense autonomy is transcended. See, for example,"Inconsistent behaviour","Agency undisclosed","Agency disclosed","Conflict of interests","Termination of authority","Revocation","Assignability of non-monetary rights","Partial assignability","Notice to the obligor"and such. Sixthly, the principle of honest credit and fair exchange is expanded.The third part is to analyze the apocalypse given by the new development of PICC to CLPRC. PICC, which is a relatively complete gathering of general regulations in the field of international commercial contract, has more extensive functions and more enriched contents after modification. We are capable of tracking the advanced method in the world and distinguishing clearly the differences between PICC and CLPRC by comparing their related regulations. Then we select and transplant the methods fitting into our country's situation to further consummate CLPRC, but this text is mainly to discuss with the content concerning"Authority of agents"and"Third party rights".