Study On The Application Of Montreal Convention Of 1999 In Chinese Courts

With the rapid development of China’s air transport industry,international air transport disputes are surging out.China’s judicial practice will eventually usher in the opportunities and challenges for the application of the Montreal Convention of 1999.As the most widely applicable international treaty in the field of international air transport,the Montreal Convention of 1999 deserves high attention in China’s judicial practice.First of all,the application of Montreal Convention of 1999 in China courts has sufficient theoretical basis.First,China has the basis for the application of the Convention.By listing the rules of international law,domestic law and customary judicial practice,the applicability of the Convention in China’s courts is demonstrated.Second,China should follow the applicable rules of the Convention.By analyzing the scope and characteristics of the application of the Convention,we can determine the ways and key points of the application of the Convention in our courts.Third,China needs to give play to the applicable value of the Convention.By revealing the practical value of the application of the Convention in China’s courts,we affirm the applicability of the Convention and the importance of its accurate application.Secondly,the application of the Montreal Convention of 1999 in China’s courts is not satisfactory.By summing up the relevant online judicial documents of China’s judicial documents,this paper makes a typological analysis of the application of the Convention.First,there are fallacies in the application of the Convention by the courts of our country,including the application of domestic law to blend the Convention(citing domestic law as the premise for the application of the Convention and domestic law and the Convention as the basis for judgment at the same time),taking into account the agreement of the parties,adopting vague location standards and applying the country of nationality standards of the parties.Second,the courts of our country improperly excluded the application of the Convention,including the direct application of domestic law without considering the Convention,excessive consideration of the agreement of the parties,confusion of applicability and liability of the Convention,the application of misunderstanding in multimodal transport,and the failure to give priority to other conventions.Thirdly,there are three main reasons for the practical dilemma of the application of the Montreal Convention of 1999.First,from the perspective of legislation,due to the vague provisions of domestic laws on the application of the Convention,the courts lack normative guidance at the constitutional level and departmental law level.Second,from the perspective of judicial guidance,the bulletin cases,guidance cases and typical cases issued by the Supreme People’s Court have many problems in the application of law,which makes it difficult to provide effective judicial guidance for courts at all levels throughout the country.Third,from the perspective of all parties involved in judicial practice,due to the limited familiarity with the Convention and the tendency to rely on domestic law,the court has insufficient internal motivation to actively apply the Convention.Finally,in view of the causes of the problems in the application of the Montreal Convention of 1999,appropriate improvement measures are proposed.The first is to supplement the provisions of domestic laws applicable to the Convention.It is necessary to fill in the gaps at the constitutional level and clarify the requirements at the departmental level.The second is to strengthen judicial guidance on the application of the Convention,and urge the Supreme People’s Court to regulate the application of the Convention as much as possible by issuing guiding cases and expanding other guiding measures.The third is to increase the internal impetus for the active application of the Convention,including strengthening the construction of foreign-related aviation judicial team and paying attention to the education of foreign-related aviation law talents,so as to solve the problem of the application of the Convention in the short term and long term respectively.By examining and considering the application of the Montreal Convention of1999 in China’s courts,it is hoped that personality research can promote in-depth discussion of the general issues of international civil and commercial treaties,and gradually build a mature system of application of international civil and commercial treaties in China.