Principles Of Priority Application Of International Treaties And Application Of International Practices

< p > because of the 142nd provisions of the general principles of the civil law, the 268th articles of the maritime law and the 184th articles of the civil aviation law, the corresponding provisions are made for the application of international treaties and international conventions. In accordance with the provisions of the second sections of the law applicable law and the basic applicable rules of the domestic law of the special law over the general law (eighty-third of the legislative law), the author thinks that the above provisions should continue to be applied to solve the legal basis for the application of international treaties and international practices in judicial practice, thus establishing the third item of the law applicable to China's foreign-related contracts, that is, the principle of "Application of international treaties first and application of international practices and the principle of compensation for the application of international practices". The above provisions should also be applied to the international conventions and the international conventions. The following principles should be applied to the application of international treaties and international conventions. The above provisions should be applied to the application of international treaties and international conventions in the judicial practice.

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< p > interpretation of the law applicable law also affirms the applicable norms of the above-mentioned laws concerning international treaties and international conventions.

But there are two problems to note: first, in the judicial practice of intellectual property protection, when domestic law and international treaties have different provisions, the provisions of international treaties may not be applied first.

This is because the internationally recognized universality of the a href= "http://www.91se91.com/news/index_c.asp" > the intellectual property rights < /a > the regional principles and the independent protection principles of various countries. Our country has adopted the mode of pformation and application to the TRIPS agreement under WTO. Besides, the international treaties in the field of intellectual property other than the TRIPS agreement usually stipulate the minimum protection standard instead of the complete specific rules. Therefore, the fourth proviso of the interpretation of the law of application of law stipulates that "the international treaties in the field of intellectual property rights have been pformed or need to be converted to domestic laws".

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< p > two, when the parties invoked the international rules such as the Hague rules in the < a href= "http://www.91se91.com/news/index_c.asp" > Contract < /a >, the international treaty can be regarded as an integral part of the contract between the parties, so as to determine the rights and obligations among the parties, but the mandatory rules and the public order reservation system should be applied to restrict the application.

The ninth provision of interpretation of the law applicable law stipulates that "the parties may invoke the international treaties which have not yet entered into force in People's Republic of China in the contract, and the people's court may determine the rights and obligations of the parties in accordance with the contents of the international treaty, but in violation of the public interest of the People's Republic of China society or People's Republic of China < a href=" http://www.91se91.com/news/index_c.asp > > /a >, except for the mandatory provisions of administrative regulations. "

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< p > it should be said that the enactment and promulgation of the law applicable law and the interpretation of the law applicable law end the "five no" (non systematic, incomplete, unspecific, unclear and unscientific) situations in the past concerning the principles of the application of laws in foreign contracts, and can handle the complicated and complicated judicial practice of Foreign-related Contracts more easily.

However, any law has further exploration and perfection, and the law applicable law is no exception.

On the principle of application of law in Foreign-related Contracts, the greatest regret is the stipulation of the principle of autonomy of will.

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On the one hand, on the one hand, the law applicable law, while emphasizing the principle of autonomy of the parties in the general provisions, maximizes the recognition of private autonomy in private law activities. On the other hand, besides adopting the universal practice of restricting the principle by mandatory rules and public order reservation system, it also stresses the restrictive conditions in accordance with the provisions of the law, and defines the act of selection without legal basis as invalid. In fact, it has shaken the status of autonomy as the basic principle of the application of laws in foreign contracts, and also violates the principle of "law without prohibition or freedom" in private law. P

It is believed that this issue will be constantly improved and resolved in the future judicial interpretation of the Supreme People's court and subsequent legal amendments.

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