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Analysis On Case Of Bioredoxinc Brokerage Contract Dispute Retrial

Posted on:2019-08-06Degree:MasterType:Thesis
Country:ChinaCandidate:Q ZhangFull Text:PDF
GTID:2416330548952215Subject:Private international law
Abstract/Summary:PDF Full Text Request
Characteristic performance refers to method that,within the field of conflict law for contracts,when the parties does not choose the applicable law,the court will determine the law applicable to the contract in accordance with the particular characteristics of the contract.The "characteristic performance" method is used in the international treaty "Convention on the Law Applicable to Contractual Obligations" opened for signature in Rome on 19 June 1980(80/934/EEC)for the first time.It attempts to establish a stable and distinct system of conflict rules by the form of fixed connection points under the Doctrine of the Most Significant Relationship.The characteristic performance method is still used in the Regulation(EC)No 593/2008 of The Council of Europe and the Council of the European Union in 2008.Characteristic performance is applied in our country for a long time.From the Reply of the Supreme People's Court on Several Issues Concerning the Application of the Law on Foreign Economic Contracts(hereinafter referred to as the "Solution")in 1987 and the Law of the Supreme People's Court on the Trial of Disputes over Civil and Commercial Contracts Involving Foreign Branches in 2007 to the current " Law Applicable to Foreign-related Civil Relations Law ",characteristic performance is implemented all the time.While according to Article 41 of the Law on the Application of Law for Foreign-Related Civil Relationships,the court can apply the law under the Doctrine of the Most Significant Relationship“or”by the means of characteristic performance.The relationship between the characteristic performance and the Doctrine of the Most Significant Relationship is the reflection of the relationship between the order value and the fair value of the law,that is to say,the relationship between the stipulation of the law and the judge's discretion.This article aims to analyze the current situation and issues of characteristic performance method in the judicial practice and make some relevant suggestions.In addition to the introduction,the full text is divided into six parts.The first part is the brief introduction of the case and summarizes arguing points of this case.Firstly,the author systemizes the cooperation agreements between the United States Hundred Reid companies and China Yingtai Jia and Biological Co.,as well as the conclusions and grounds of the first,the second and the retrial judgment.Secondly,the author sorts out the controversial points of the case,including thedetermination of the characteristic performing party,the positioning of characteristic performance method and the applicable law under the characteristic performance method.The second part analyzes false application of standard of the first,second and the retrial judgment on the basis of common standards of "non-pecuniary party","party with greater risk" and "party performing characteristic debt".The third part,based on the controversy over the positioning of "conversion view" and "non-conversion view" in the application of characteristic performance method and the Doctrine of the Most Significant Relationship,discusses the lack of "non-conversion view" in the application of law in this case,which reflects that the Doctrine of the Most Significant Relationship is ignored in this case.The fourth part summarizes the foreign legislation about the applicable law in characteristic performance and discusses the false application of law based on the fact that the court of first instance and the retrial court has been confused with the concepts of domicile and habitual residence.The fifth part is the overview of the development of the characteristic performance method in our country,and combining with this case,summarizes the difficulties in the practical application of the characteristic performance method,and puts forward some related suggestions.The sixth part concludes with the conclusion of the status quo and problems of the characteristic implementation method.
Keywords/Search Tags:Characteristic Performance Party, Characteristic Performance, Doctrine of the most Significant Relationship
PDF Full Text Request
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