China's Provisions On The Law Application Of Foreign - Related Consumer Contracts

Since the end of the 19th century, the Consumer Rights Movement originated in the UK,quickly swept the world.The United States has established civil society organizations and government agencies to protect the interests of consumers.Subsequently,many countries have also begun to make laws on protecting consumers, rights. International trade and services are developing rapidly because of social progress, especially promoted by the advanced traffic conditions and network communication technologies.Those emerged foreign-related consumer contract for its many factors related with different countries may trigger disputes on the law of which country or legal region should be applied.Besides,there is great gap between the status of both parties of such contract,namely,consumers are inferior to business operators in terms of many points,like economic power,control of information and ability of relief,and the same goes for determining the law by the party's autonomy.Then that's why a large number of countries make out the unique rules of law application aimed at resolving such conflicts of law.However,China hasn't deliberately made special rules of application of law for such consumer contract ,and adopted the same rules as the common contract on it. The article 42 of the Law on the Application of Law on Foreign-related Civil Relations of the People's Republic of China (hereinafter referred to as the "Law on Application of Law")adopted in 2010 specifically puts down the special rules of law choice on such contracts,which makes a difference.The item still makes it sure that the law determined by the autonomy of party has priority,and on the other hand stresses the law chosen by the sole party of consumer shall be applied,different from general adoption of the ones with which both parties reach agreement.And when consumer hasn't selected any law on such treaty,they may use the habitual residence law,all of which reflect the special protection of consumers.Whereas,China's provisions on foreign-related consumer contract has following defects at least:not defining the foreign-related consumer contract;not explaining what is "related business activities";not limiting the usage of the law of consumer habitual residence;not adopting the principle of most significant relationship.And those will bring many inconveniences on applying the law for the court of the cases.Based on such,I take China 's Provisions on the Law Application of Foreign -related Consumer Contracts as my thesis title,and it firstly introduces the fundamental theory of foreign-related consumer contract,and then tells why china sets up exclusive rules of law of application for such contract;considering the legislative and practical experiences of the international community on the law application of such contracts,it illustrates the essential features and positive points;then it follows to analyze the major demerits,and discuss how to improve and better it in the hope of helping the perfection of choice-of -law rules of such kind of contract.In additional to the introduction and conclusion,the dissertation is made up of five parts:Firstly,the paper tells the basic theory of foreign-related consumer contract.Consumer contract is a series of treaties between consumer and operator to purchase goods or receive services for non-commercial or non-professional purposes.The so -called foreign - related consumer contract refers to the above contract whose subject, the object or legal facts, like the conclusion or the implementation of contract,is associated with foreign or foreign legal family, and can lead to conflicts of law.And the law application of a foreign-related consumer contract means that it does not deal with the specific rights and obligations of the parties, but only stipulates the law of which country or legal family should be applied to the contract.Secondly,it explains why Law on Application of Law stipulates different rules of law application for the foreign-related consumer contract.Foreign-related consumer contract belongs to foreign-related contract in substance,but china takes it out from the general contract to establish exclusive rules of choice-of-law for such contract mainly for such reasons:to keep with the legislative trend of the modem international community to focus on protecting the rights and interests of the weak;to take into account of the characteristics and development needs of foreign-related contract;to follow the tendency of the relevant legislation on international private law in modern international community;to satisfy the objective requirements of the development of the purpose of contemporary private international law,that's to say shift from the formal justice oriented in the certainty and predictability to substance justice paying attention to adequate result meanwhile.Thirdly,this dissertation elaborates the substantial characteristics of the rules of law application of foreign-related consumer contract.Compared with the relevant legislation on private international law of other countries and areas,it has following features:first,it adopts principle of party autonomy,to be more specific,foreign-related consumer contracts take law chosen by the sole party of consumer,meanwhile, unilateral autonomy of consumer is strictly restricted;Secondly,it applies the law favorable to the consumer,i.e.,when consumer makes no choice about law,the habitual residence law shall be used;Lastly,the law of regions where the commodity and service are provided has its place too,but it is so on the condition that business operator isn't engaged in any business activities in consumer habitual residence. Such provision well balances the lawful benefits of consumers and business operators.Fourthly,it analyses the primary demerits of china's provision of law application of foreign-related consumer contract Though china's rules of choice-of-law have above gains and merits,they at least have such disadvantages:it doesn't define the foreign-related consumer contract;it mentions nothing about what is the relevant business affairs;it lacks justifiable restrictions on the application of law of consumer habitual residence;and it totally excludes the application of doctrine of most significant relationship.Fifthly,the article talks about the measures to improve rules of law application of foreign-related consumer contract in such aspects :to define the concept of the foreign-related consumer contracts;to explain the engaging in relevant business activities;to make rational restriction of application of law of consumer habitual residence;to introduce the doctrine of most significant relationship into such contract,so to enhance the flexibility and rationality of choice-of-law of foreign-related consumer contract.