Research On China's Application Of International Treaties Not Forced Into China

With the accelerating pace of "going out" in China,various new foreign-related civil and commercial relations are emerging in the field and level of opening up.However,China's current private international law and the international treaties concluded or participated in by China are sometimes difficult to meet the needs of the current foreign-related civil and commercial relations.Foreign judicial practice in our country,often will encounter some foreign-related civil and commercial relations between the parties in the foreign-related contract quoted together has not effect on our country's international treaty as a basis to determine the relations of the mutual rights and obligations,thus foreign-related civil and commercial trial of our country puts forward the new subject,to this end,China's Supreme People's Court on December 10th,2012,issue of concerning the applicable<foreign-related civil relationship between law applicable law of the People's Republic of China>(1)the explanation of some issues,"responded.The judicial interpretation(a)"in article 9:" the quoted in the contract has not yet been international treaty takes effect for the law of the People's Republic of China,the people's court may,according to the international treaty to determine the content of the rights and obligations between the parties,but in violation of the social and public interests of the People's Republic of China or the People's Republic of China except the mandatory provisions of laws and administrative rules and regulations." This regulation shows that China attaches great importance to the autonomy of the parties' will and allows the parties to implicitly choose international treaties that have not yet come into force for China as the applicable law of foreign-related contractual relations.At the same time,in order to safeguard China's state sovereignty and social public interests,China has made necessary restrictions on the application of international treaties that have not yet come into force against China,which fully reflects the principle and flexibility of our courts in applying international treaties that have not yet come into force against China.The judicial practice in recent years has proved that China's provisions on the application of international treaties that have not yet come into force in our country follow the principle of autonomy of will and have some restrictions,but it is worth studying in both theory and practice.Because of this,the author attempts to based on our country has not yet come into effect in China's international treaties shall apply the basic theory of interpretation and the foreign related legislation and practice of legal application,the court of our country has not yet come into effect in China's international treaties shall apply the theoretical basis,legal nature,limit conditions,and should expand the issues discussed,looking forward to our courts has not effect to our country the international treaties shall apply the theoretical research and trial practice help.In addition to the introduction and conclusion,the full text mainly includes the following parts:The first part defines the basic connotation and extension of the international treaties that have not yet come into force for our country.The application by our court of an international treaty that has not yet entered into force for us must be an international treaty that has already entered into force in the international community.Not all international treaties that have not yet entered into force for our country can be applied in our courts.Only international treaties in the field of private international law that have not yet entered into force for our country can be applied in our courts.Moreover,not all international treaties in the field of private international law that have not yet entered into force for our country can be applied in our courts,and only the substantive normative treaties in the field of private international law that have not yet entered into force for our country can be applied in our courts.The second part discusses the theoretical basis and practical basis of China's application of international treaties that have not come into force for China.The theoretical basis of the international treaties whose courts have not come into force in China is the theory of autonomy of will or the principle of autonomy of will and the theory of global governance.There are political,economic,cultural,scientific and technological realistic bases for China to apply the international treaties that have not come into force for China.The third part discusses the nature of our court's application of international treaties not in force for our country.The application by our courts of international treaties which have not entered into force for us is of a natural and substantial nature.The so-called nature of necessity means that,according to the relevant legislation and judicial interpretation of China,the application of international treaties not yet in force in China by Chinese courts can only be based on the "joint invocation" of the contracting parties in the terms of the contract,that is,it should be regarded as the nature of the "contract provisions" that choose to apply the law.Reality nature refers to,in the trial practice of foreign-related civil and commercial cases in China,both the international treaty will take effect has not been to our country as a foreign law nature or the nature of "contract"shall be applicable,there are will not effect to our country international treaties as international practice the nature or the nature of the "the regulation of our country law"shall be applicable.The fourth part explains the conditions for China to apply the.international treaty which is not in force for China.The application by our courts of international treaties not in force with us shall meet the following conditions:such international treaties,although not in force with us,shall be in force with the international community;China's courts can only apply substantive international treaties on private international law that have not yet come into force for China,neither on public international law treaties that have not yet come into force for China,nor on uniform conflict law treaties on private international law that have not yet come into force for China.The application of such international treaties by Chinese courts should be based on the premise that there are no explicit provisions on the adjustment of relevant foreign-related civil and commercial relations in China's current laws and the international treaties concluded or acceded to by China,and the necessary conditions should be based on the choice of express agreement or "joint invocation" of the parties to foreign-related civil and commercial relations.The results of the application of such international treaties shall not violate the public interest of China and the mandatory provisions of laws and regulations.The fifth part discusses the application of Chinese courts to the international treaties which have not yet come into force in China.The application of international treaties not yet in force by Chinese courts is not limited to the field of foreign-related contractual relations,but can be expanded to such fields as foreign-related trust relations,foreign-related torts,foreign-related chattel real right relations and foreign-related conjugal property relations.However,while extending the scope of international treaties that have not yet entered into force in China,the Chinese court must be prudent and not violate the public interest of China and the mandatory provisions of laws and regulations.