Study On The Relationship Between Characteristic Performance And The Doctrine Of The Most Significant Relationship

Benefiting from the construction of the “socialist legal system with Chinese characteristics”,the Law on Choice of Law for Foreign-related Civil Relationships has become China's basic PIL law to adjust the civil and commercial legal relationship concerning foreign affairs since 2011(hereinafter “Application Law”).From then on,discussions and reviews on it from private international law learners have been going on.Much attention was drawn to Article 41 as it takes an extraordinary expression in the provision.At the time when the Supreme People's Court's Provisions on Several Issues concerning the Application of the Law in the Trial of Foreign-related Civil or Commercial Contract Disputes have expired and the relevant Judicial Interpretations of the Act(hereinafter “the Supreme Court Regulation”)has not yet been formally promulgated,the controversy arising from the provisions concerning the characteristic performance and the principle of the closest connection in this clause has intensified.This paper puts forward questions comparing the theoretical disputes and differences in judicial application,with analysis to follow.On this basis,the theoretical relationship and the relevant foreign legislation and practice are sorted out so as to clearly and correctly apply the relevant provisions of Article 41.The disputes in Article 41 focus on the question that what relationship it is between the characteristic performance and the Doctrine of the Most Significant Relationship.What is wrong with the “law on paper”? the “law in action” has the most to say.Apart from the presentation of scholars' different perspectives,the author conducted statistics on 200 relevant judgments and cases heard by the provincial high courts and found that the interpretation and application of the relevant provisions in Article 41 vary greatly.In judicial practice,a chaotic application of the relevant provisions is manifested and some contradictions occur on deciding characteristic performance party when the court applies the characteristic performance.“Different judgments and reasons in the same kinds of case'' have appeared.In view of the above problems,analysis should start from the reality of our country's practical trial.As we all know,judges of civil law countries usually give the uppermost priority to “the law on paper”.Therefore,the core issue of this paper is to clearly define the relationship between characteristic performance and the closest relationship in Article 41 at the theoretical level.Firstly,what needs to be clarified is the nature of characteristic performance and the principle of closest connection.After defining the concept of characteristic performance,the author believes that according to the history of characteristic performance and its application in various countries,the characteristic performance is both a rule and a principle;While the nature of the most closely related principle can be the legal principle and a method of choice of law.The former can be furtherly divided into the basic principle,the supplementary principle and the exceptional principle.Both of them have obvious advantages and disadvantages and are still in continuous development.Secondly,their respective status in combined style needs to be clarified.The combined use of them in the field of foreign contract law application has become a trend.Under the premise that the characteristic performance owns the dual attributes of “rule + principle”,the author believes that it can be used as an independent method of law selection(independent method)and a tool to achieve the most closely related principle(tool of selection)in the relevant provisions.Characteristic performance acts as an “independent method of law selection” means that it can be independently applied as a rule of law and legal principle and has priority with the advantages of clarity and predictability,but the scope of its application is limited;While the value of selecting the applicable law independently will be crippled when it acts as a tool of selection.As a basic principle,the principle of the closest relationship either appears radical and does not conform to the reality of our country or it cannot play the maximum value of itself.In this way,the characteristic performance will return to the old way of “the real seat doctrine”.If the principle of the closest connection is regarded as the method of the choice of law,then the status of characteristic performance as a tool of method will become unclear.To a certain extent,the connection between them will be severed.The latter one become a “method's method”.What's more,compared with the “principle attribute” of the principle,its “method attribute” is not the optimal solution in the field of contract law selection.When the principle of the closest connection acts as a supplementary or exceptional principle and characteristic performance acts as a tool,the application scope is incomplete.In other words,whether it is “supplementary” or “exceptional”,it is based on certain bases,i.e.it cannot be a “castle in the air”.This base can be a principle or a rule.The combination of characteristic performance as an independent method of selection and the principle of the closest connection as a principle of complementation and exception can cover the entire field and can maximize the advantages of each other in the same time.In summary,in terms of the relationship between these two concepts,the status of characteristic performance and the principle of the closest connection should be “an independent method” and “exceptional principle and supplementary principle”,respectively.The original intention of the legislation was to apply the relevant legal norms stably and uniformly.Regarding the application of laws related to foreign-related contracts,although there are only six ways to interpret the relationship of the two,the optimal one can be ascertained in light of China's trial reality: the characteristic performance in Article 41 is the unity of the rule and principle,which should be applied preferentially while the application of the principle of the closest relationship has a certain lag,i.e.when the application of characteristic performance rules and principles cannot determine the law that has the closest relationship with the contract,the exceptional use of the principle will play;when a particular contract goes beyond the scope of application of the characteristic performance rules,the supplementary use of the principle will play.This article proposes related disputes,then analyzes the causes behind the problems and clarifies the relationship of these two terms so that the relevant clauses can be more clearly and reasonably applied in China's judicial trials.