On Foreign Contract Law Applies To The Theory And Practice

With the rapid development of the transportation and the communication, the world has been shrinking a global village and the cross-border commercial exchanges have been becoming more frequent and complex. But the sovereign states and different legal systems still and will exist in the future which leads the law application conflict on the foreign-related contracts to exist for a very long term and be more important than ever. China has entered into the WTO for nearly seven years and is bound to become more involved in international civil and commercial exchanges and cooperation. The law application legislation and practice on foreign-related contracts hasn't got well development until after the reform and opening up of China. Therefore, in order to better participate in international cooperation and competition, it is significant to study the international and domestic law application on the foreign-related contracts.The thesis discusses the theory on the law application of the foreign-related contracts, the scope of the law application and the present condition of China's law application on foreign-related contracts.The full text is divided into four sections. The first section studies the development of the theory on the law application of the foreign-related contracts. The law application theory has f experienced the four stages: the law distinction theory, the theory on the legal relationship seat, the interested parties' meaning autonomy theory and the closest relationship theory. Now the interested parties' meaning autonomy principle has been adopted universally and the closest relationship has been taken as its compensation. The interested parties meaning autonomy principle respects the interested parties to the utmost and the closest relationship principle makes it possible for the judges to determine which law should be applied to the foreign-related contracts when the contract parties don't choose the applicable law. A well law-determination mechanism has formed by combination the interested parties meaning autonomy principle with the closest relationship principle in the world. China has also established the advanced mechanism in its legislation.The second part discusses the scope of the governing law to the foreign-related contracts and analyze which law should be took as governing law to the competence of the interested parties, the effect of the contract in form, establishment of the contract and the effect of the foreign-related contracts. My opinion is the competence of the interested parties should apply to their national law. If they are incompetent in contracting according to their national law and competent by the law of the court place, they are considered having the contacting competence. The form effect of the contract should apply to the governing law to the contacts if it doesn't breach the law of the court place. So should the establishment and material effect of the contract.The third and four parts discusses he legislation and the experience of the law application on the foreign-related contracts in China. I think China has basically established a set of legal mechanism to govern the law application on the foreign-related contracts, but some problems still exist. According to China law, the interested parties may choose the applicable law or change the chosen applicable law by agreement after they make the contract under the interested parties' meaning autonomy principle. But the law should make some limits towards the new chosen law: the established contracts shouldn't be made invalid and the third party's interest shouldn't be damaged. China's law should regulate clearly when the interested parties may choose the applicable law. In order to defend our country's benefit, some special foreign-related contracts should exclude the application of the interested parties' meaning autonomy principle. On the closest relationship principle, a concrete criterion with strong operatability should be established to determine the place that has the closest relationship with the foreign-related contracts.