Research On The Applicable Law Of Guarantee Contract Involving Foreign Element

As an important form of international guarantee contract, guarantee contractinvolving foreign elements plays a vital role in international business transactions.The first part of the thesis studies and discusses the basic theory of guaranteecontract involving foreign elements. It defines the concept of the guarantee contractinvolving foreign elements. And it explains the definition of “involving foreignelements” in relations of guarantee involving foreign elements that there is at least onefactor of the tripartite legal and commercial relatonship having substantive relationshipwith foreign legal jurisdiction. On this basis, it discusses the particularity of the guaranteecontract involving foreign elements and empharsizs again that the research object isconfined to accessory guarantee contract involving foreign elements. Then it analyzesrespectively the legal ralationship between legal subject in the tripartite legal andcommercial relatonship.The second part of the thesis studies the conflict of laws and its manifestations ofguarantee contract involving foreign elements. It analyzes the causes leading to conflictof laws in guarantee contract involving foreign elements. Then it puts an emphasis on theconflict of laws causing from the qualification of a guarantor, liability of guaranty andthe legal system of foreign guarantee.The third part of the thesis studies and discusses application of law of guaranteecontract involving foreign elements. Firstly, it discusses the extent of application ofapplicable law of principal contract and guarantee contract. Upon this ground, itdiscusses how to ascertain the applicable law of principal contract and guarantee contract.And then it further discusses the conflicts of the applicable laws between principalcontract and guarantee contract. Secondly, it analyzes the solutions of conflict of laws ofguarantee contract involving foreign elements theoretically and discusses how to use thedoctrine of party autonomy and the most significant relationship doctrine to ascertainproper law and its problems. Lastly, it studies the limitation issues of application of lawof guarantee contract involving foreign elements, or in other words, the limitation of themeaning autonomous. And then it defines the essence of mandatory provisions based onthe ayalysis of reservation of public policy theory, evasion of law theory and “directly applicable law” theory.The forth part of the thesis introduces the legislative status quo of China’s guaranteecontract involving foreign elements firstly. On this basis, it further points out theproblems in judicial practice in determining the applicable law of principal contract andguarantee contract. And it analyzes the practice of Chinese courts in solving the conflictsof the applicable laws between principal contract and guarantee contract and limiting themeaning autonomous. Finally, combined with the the problems in Chinese courts’practice， learning from outstanding foreign legal achievements, it puts fowardconceptions in terms of both law perfection and legal practice.