Principles Applicable To Foreign Contracts

< p > the principle of autonomy of will refers to the principle of law applicable to the application of subjective law of the law applicable to foreign contracts. Its core content is that the parties to a contractual relationship can freely enter into a contract in accordance with their will, and of course have the power to decide the law applicable to them.

This principle was first seen in the sixteenth Century French scholar Du Molan's commentary on customary law of Paris. Since eighteenth Century, it has been accepted by most countries for legislation and practice. It has now become a basic principle of the application of foreign contract law, and has also played a role in other foreign civil legal relations and has been adopted by relevant international conventions.

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< p > China's law applicable law endows the party's autonomy principle with prominent status, which is mainly embodied in two aspects: first, it regards the principle of party autonomy as a declarative clause, stipulates that the general rule (third articles) embodies the advanced nature and openness of the law.

Second, the sphere of application of the principle of autonomy of will has been greatly expanded.

In addition to the traditional contract area (forty-first articles), the principal agent (Sixteenth articles), the trust (seventeenth), the arbitration agreement (eighteenth), the marital property relationship (twenty-fourth), the agreement divorce (twenty-sixth), the movable property rights (thirty-seventh), the movable property rights in pportation (thirty-eighth), the parties' choice of the general tort liability (forty-fourth) and the intellectual property tort liability applicable law (fiftieth), the unjust enrichment and the no cause management (forty-seventh), the pfer and license of intellectual property rights (forty-seventh) and so on, all allow the parties' agreement to choose the appropriate law.

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< p > in the field of foreign contract, the principle of autonomy of will is the first principle of its law < a href= "http://www.91se91.com/news/index_c.asp" > < /a >.

The forty-first paragraph of the law applicable law stipulates that "the parties may agree to choose the law applicable to the contract."

The relevant provisions of other relevant laws are sufficient to fully prove this: our country's general provisions of the 145th principles and first provisions of the civil law stipulate that "the parties to a foreign contract may choose to deal with the laws applicable to the contract disputes, except for other provisions of the law"; the 126th article first of the contract law makes the same provisions as the first general provisions of the general principles of the civil law; in addition, the 269th principles of the maritime law and 188th provisions of the Civil Aviation Act also have similar provisions.

On the issue of law application of Foreign-related Contracts, establishing the principle of autonomy of will is beneficial for the parties to foresee the consequences of legal acts and to maintain the stability of legal relations, and to facilitate the prompt resolution of disputes.

Of course, the application of this principle should conform to the basic rules of legality, honesty and good faith, and at the same time be restricted by some specific conditions. Specifically, it is mainly manifested in: < /p >

< p > < < a href= > http://www.91se91.com/news/index_c.asp > > Contract > /a > the choice of the appropriate law. The international community generally affirms the law of choice. But for the implied choice, there are three kinds of attitudes: the non recognition, the limited recognition and recognition and allowing the judge to make the intention of the parties in the trial.

In the countries that attach importance to the legal tradition of judges' discretion, they hold a limited attitude of recognition or recognition to the question of implied choice.

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< p > < < a href= > http://www.91se91.com/news/index_c.asp > > < < /a > > third stipulates that "the law applicable to the dispute between the parties in choosing or changing the contract should be applied in an express way."

The fourth clause and the second paragraph further stipulate that "the parties have not chosen the law applicable to the contract dispute, but if they invoke the law of the same country or region and have not raised objection to the application of the law, they shall be deemed to have made the choice of the law that the parties shall apply to the contract dispute."

From the content of the above provisions, the judicial practice of China has adopted the attitude of recognizing the implied choice in the choice of the way of applying foreign contracts to the law. Only when the judge judges the implied choice intention of the parties, the judge needs to make a judgement based on the following three conditions: (1) the parties fail to reach a satisfactory choice in the prescribed time; (2) both parties invoke the right of legal claim in the same country or region; (3) both parties have not raised any objection to the application of law.

Since the provisions of the application of law are interpreted in conflict with the law applicable to law (2013) No. 7 is repealed, in the choice of the applicable law of contracts, the third law of the law applicable stipulates that "in accordance with the law, the parties may expressly choose the applicable law of foreign related civil relations."

From the literal interpretation, this article denies the practice of affirming the legal effect of the parties' implied choice in the judicial practice of the application of foreign contract law in our country, that is, our country does not recognize the implied choice, and the law applicable by the parties to choose the foreign-related contract must be carried out in an oral or written way.

However, since the third item is placed in the general provisions of Chapter 1 of the law applicable law, it is obvious from the perspective of legislative spirit that its role is not the direct application in practice, but in order to manifest the legislative purpose and principles of the law. Therefore, the parties' choice of the contract applicable law emphasizes the implied choice of practice in addition to emphasizing the principle of the express way.

This argument has also been supported by the Supreme People's court.

After the promulgation of the law applicable law, the eighth paragraph and the second paragraph of the law applicable law interpretation stipulate that "if the parties concerned invoke the laws of the same state and do not raise objections to the application of the law, the people's court may decide that the parties have made a choice on the applicable laws of foreign-related civil relations."

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