Research On The Legal Choice Of Foreign-related Consumer Contracts

The problems about choice of law in contract were resolved in accordance with the principle of party autonomy and the most significant relationship. And because of the special nature of subject in foreign consumer contract, when faced with conflict of laws, consumer contract didn't abandon relying on the traditional rules of law to resolve the conflict, but on the jurisprudential basis that protected the interests of consumers, consumer contract had not fully consistent choice of law rules with the traditional rules. And as a result of domestic legislation to protect the interests of consumers in different degrees, different countries has different legislations in the choice of law rules on such contracts. So,How does the choice of law rules of the contract like in the international community and legislative practice of different countries, and what characteristics are in our legislation and judicial practice law about such contract selection process,and compared with other different countries, in our country whether has problems or deficiencies,if it has, how to improve? This article will use the methods of historical analysis and comparative analysis, combined with the existing legal basis for the theory and practices of domestic to answer the above questions, and think the choice of law rules on consumer contracts in our country should not only improve the interpretation of the relevant statute, but complete related measures. This paper is divided into five sections:The first part:from the definition of foreign consumer contract began, this article summed the characteristic on foreign consumer contract that shall include the body——such as consumers and business operators;the content——for living consumption of non-professional behavior or business practices; not contain commercial contracts, but including services and investment or the consumer credit contracts. The article starts with the definition of characteristics on consumer contracts, and then explores that the foreign consumer contracts should be mainly party claims as definition of dispute,and advocates that this article will combine the main of unified system with supplementary way of segmentation system to analyzes choice of law such contracts, under the coexistence of the unified system and segmentation system.The second part:under the premise of characteristics in foreign consumer contracts,this article deeply researches jurisprudential basis theory and value trends in choice of law, which will regard the protection of interests for the weak and substantial justice as jurisprudential basis theory on foreign consumer contracts.this article summarizes the current trend——a combination of flexibility and certainty on connecting points and balance of formal justice and substantive justice in judgement.The third part:on the basis of above groundwork,this article makes the investigation about legislative practices in international society,and then analyzes and evaluates the relevant legislation currently surviving practice with above basis theory and valuable trends.The fourth part:the article further studies choice of law rules in foreign online consumer contract at first, and then analyzes unified substantive law, regional and national substantive legislation to summarize the development trend in the current legislation, then this article abstracts new connecting points which are in the existing legislation on foreign network consumer contracts.The fifth part:this article analyzes the characteristics of on the contracts choice of law rules from the legislation in China, and integrates the current legislation and judicial practice problems,while based on comparative Law this article adopts statistical data for the the judicial cases of applicable law about section 42 in China, and further on the basis of the above issues proposes practical and feasible answer.The paper concludes that when the trends of choice of law rules on foreign consumer contracts go toward the same, Concurrence between liability for breaching contract and tort should confirm according to the party's choice, while in practice court should take advantage of the unified system mainly to analyze choice of law rules on the contracts. In the proceeding of improving our legislation, Firstly, it should make good use of existing clause. Secondly, in the case of foreign online consumer contract dispute settlement case not be of no effect, opening online channel to resolve contracts disputes consumer is very necessary,this purpose is to reduce these disputes into the judicial procedure.Finally,while reducing the disputes, this article tries to apply new flexible connecting point for ultimately achieving the pursuit of real justice.