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Thesis On The Rule Of Characteristic And Its Application Of Law Of The People's Republic Of China On Choice Of Law For Foreign-related Civil Relationships

Posted on:2016-01-19Degree:MasterType:Thesis
Country:ChinaCandidate:G S ZhaoFull Text:PDF
GTID:2506304598956829Subject:Master of law
Abstract/Summary:PDF Full Text Request
Rule of characteristic performance is an important law-choose method in the area of contractual conflict law.It is very popular in civil law countries because of its certainty and operability.As the specific implementation model of the closest connection principle,it provides clear guide to law choosing and curbs the discretionary power of the judges,making it an irreplaceable part of China's international private law and in the area of contract disputes involving foreign interests.The Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships(hereinafter referred to as"Law on Choice of laws")was adopted by The 17th Standing Committee Meeting Of The 11th National People's Congress in Oct.28,2010.It is the first slip law on contract disputes involving foreign interests,the milestone of China's international private law,which reshaped the chaotic legislation situation in this area.In spite of its historic value and social functions,many scholars judged and questioned the disadvantages and loopholes on its design.Plus the practical effects after it was put into force didn't meet the anticipations of the academic circle,this law,especially provision "Characteristic Performance",became the focus of theoretical and practical circles.As we know,before Law on Choice of Laws was put into force,the rules of characteristic performance have already found its workable ways and promoted the judicial practical judgments;however,it failed to perform its existing functions after it become effective on the contrary,it was widely criticized for the discrepancy of legislative interpretations and the blurry boundaries of its contents.Rule of characteristic was trapped into an embarrassed judicial circles under such environment.To solve the practical problems of the Law on Choice of Laws,this paper is divided into four parts:?.Make a comparison between the effects before and after the effectiveness of this law to discover its disadvantages.The author tries to compare the changes on the rules of characteristic performance before and after the Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships was passed to find out the disadvantages of the current laws and regulations and makes an initial study on those problems from the judicial judgments caused by upper legislation.?.Dig down to find the answers.The author realized that the reasons caused the practical problems of Rule of characteristic performance are various.Besides its own discrepant interpretation,it's also related to inadequate understanding to the relating theories and misunderstanding of its relationship to closest connection principle,etc.On this basis,the author also summarized the practical situation of Rule of characteristic performance and closest connection relationship.?.Solve each problem with textual researches.The author re-analyzed the factors influencing the Rule of characteristic performance practicing and criticized the disputes on this problem in the academic circle to clarify the key points that's been confusing people,especially the judges.?.Suggestions.After all factors are found out,the author presented a reasonable and specialized suggestion to improve the Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships,and finally optimizing its further practicing.
Keywords/Search Tags:rule of characteristic performance, Choice of Law for Forein-related Civil Relationships, the Article 41's provision, the closest connection principle
PDF Full Text Request
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