Reflection And Perfection Of The Present Legislation Of Characteristic Performance

The question of the application of law when the parties to a foreign-related contract dispute do not choose the applicable law of the contract,the 41 st article of the law applicable to civil relations concerning foreign affairs of the People's Republic of China stipulates characteristic performance.Prior to the promulgation of this law,China's judicial interpretation of the “Special Provisions of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases of Disputes over Foreign-related Civil or Commercial Contracts ” in 2007 provided for the provision of characteristic performance.By contrast,both of these stipulate the characteristic performance of the contract,but the content is not the same.Article 41 stipulates that when the parties to a foreign-related contract dispute do not choose the applicable law,the governing law shall be determined on the basis of the contractual characteristics of the performing party's regular residence.In the judicial interpretation of 2007,Article 5 lists the conflicting norms of 17 types of contracts based on characteristic performance.The 17 specific conflict rules generally use the place of residence of a party performing a characteristic performance as a connecting point.However,there are some exceptions.The sale and purchase contracts,real estate contracts,construction and construction contracts,and auction contracts under specific circumstances stipulate that characteristic performance sites be used as connecting points.In other words,when there is the closest connection between the use of the characteristic performance presumption and the case dispute,it can be understood that there is of course that between the characteristic performer specified in Article 41 and the case dispute.The most closely linked;and according to the judicial interpretationin 2007,the place most closely related to the case is the place where the characteristic performing party is domicile or is characteristically performing.However,according to judicial practice,when judges use the characteristic performance theory,the law of choosing the characteristic performing party's habitual residence as the applicable law for foreign-related contract disputes often points out that the place where the characteristic performance of the contract is performed coincides with the regular residence of the party that performs the characteristic performance.At this time,the characteristic performing party often has the closest connection with the case dispute.There are two ways in which judges choose the applicable law for cases where the characteristic performing party often does not coincide with the characteristic performance venue: One is that the judges perform their duties in accordance with Article 41 and select the law of the place of habitual residence of the performing party as the applicable law,Since the place of regular residence of the party performing the contract is not the place of signing the contract and the actual place of performance,at this time,there is no most closely relationship between the place of habitual performance of the performing party and the case,and the resulting judgment is not reasonable;The other is that the judge ignores the principle of direct performance in accordance with the principle of the most closely related to the performance of the performance,and choose law of the place of performance of the contract that has the closest connection with the case dispute as applicable law.Although this practice of the judge can guarantee the reasonableness of the trial result,it is not appropriate because the judge should have used the characteristic performance method to select the law.The above-mentioned problems in judicial practice reflect the problems in the legislative provisions of Article 41 concerning the characteristic performance.This article takes the legal provisions of Article 41 of the Law of the People's Republic of China on the Application of Civilian Relations Law as the research object,using case and empirical analysis methods,comparative analysis methods in judicial practice,reveals that in the judicial practice,for all types of foreign-related contract disputes,using the “characteristic performance statement” of Article 41 of the Law of the People's Republic of China on the Application of Civil-Relationship Laws,the indiscriminate law applies the law of the regular performer's habitual residence.Because in certain types of foreign-related contract disputes,the characteristic performing party often does not have the most closely relationship with the case disputes.In such cases,the characteristic performing party's habitual residence law is selected as the applicable law,and the judgment is obtained.The result is unfair.At the same time,it compares the provisions of Article 5 of the “Provisions of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Foreign-related Civil or Commercial Contract Disputes Cases” in Article 5 and the effect of its application in judicial practice,this raises the issue to be studied in this paper: Article 41 of the “Law of the People's Republic of China on the Legal Provisions Concerning Civil Liberties in Relation to Foreign Affairs” deviates from the original meaning of the characteristic performance statement.This article divides three chapters for discussion and analysis.The first chapter of the article first states how China's legal regulations on the performance of characteristics have evolved,and compares the characteristic performance statement in Article 41 with China's original provisions on characteristic performance,analyzing reasons of this change;To sort out and summarize the application of the characteristic performance statement provided for in Article 41 of the "Law of the People's Republic of China on the Application of Civil Liability in Civil Laws" in the judicial practice in China,finding out existing problems.Through problems of judicial practice,it raises the reflection on Article 41 on the characteristic performance requirements,and proposes the issues discussed in this paper.The characteristic performance statement has been alienated in China's current legislation,deviating from its essential meaning.The second chapter traces the birth and development of the characteristic performance statement through original theoretical analysis,and explores the relationship between it and the principle of the closest connection.At the same time,it is analyzed how some European countries have formulated the characteristic performance statement as legislation,and determined the essential meaning of the characteristic performance theory.The third chapter proposes a solution to this problem based on the first two chapters.Article 41 of the “Law of the People's Republic of China on the Legal Provisions Concerning Civil Liberties in Relation to Foreign Countries” deviates from the original meaning of the characteristic performance theory.To resolve the issue,mention some perfect suggestions in this emergence stage: It was amended by promulgating the "Interpretation(2)" of Several Issues Concerning the Applicable Law of the People's Republic of China on Legal Application of Civil Relations in Foreign Countries,and the provisions of the judicial interpretation on the characteristic performance statement should be based on the 2007 Supreme People's Court hearing about foreign affairs.The contents of Article 5 of the Regulations on the Application of Laws in Civil or Commercial Contract Dispute Cases shall prevail.The connection point of characteristic performance should be divided into two categories: the first type is the regular residence of the characteristic performing party;the second type is the characteristic performance behavior,and the behavioral junction only applies to some special types of foreign-related contract Disputes.For example,the characteristic performance behavior occurs at the buyer's location in foreign-related sales contracts,foreign-related real estate contracts,foreign construction contract construction contracts,and foreign-related auction contracts.