Civil and Commercial Legal Principles and Empirical Analysis of Cross-Border Matters

Author: Sun Yingzheng
Publisher:
Publish Date: 2004-08-01
Features: Since China's entry into the WTO, the number of foreign-related dispute cases has been continuously increasing, and the role and significance of foreign-related commercial adjudication in providing judicial safeguards for national reform, opening-up, and economic development have become increasingly prominent. After the Supreme People's Court established a large-scale civil adjudication framework, it implemented centralized jurisdiction for foreign-related commercial cases and established the Fourth Civil Adjudication Tribunal, specializing in foreign-related cases, thereby initially forming a professional adjudication framework. It can be said that China's foreign-related commercial adjudication has entered a new development period. In foreign-related commercial adjudication, the application of law and the resolution of legal conflicts are challenging issues. How to correctly address legal application issues has been actively explored by courts across the country, accumulating many valuable experiences from adjudication practices. Overall, when adjudicating foreign-related commercial cases, it is necessary to strictly adhere to the General Principles of Civil Law, the Contract Law, the Civil Procedure Law, as well as relevant laws and judicial interpretations, while appropriately considering the of such cases, such as fully respecting the parties' choice and correctly applying the governing law. As long as the law chosen by the parties through agreement does not violate China's public interests, nor does it evade China's mandatory or prohibitive legal provisions, the People's Court should respect the parties' agreement and apply the law chosen by the parties in accordance with the law. If the parties have not chosen a law or have chosen ambiguously and cannot reach a new agreement, the law of the country or region most closely connected with the contract should be applied. It is necessary to strictly adhere to the provisions of international treaties and conscientiously fulfill treaty obligations. When international treaties to which China is a party or has acceded differ from China's civil law, the provisions of the international treaties should be given priority in accordance with the law, except for clauses reserved by China. It is necessary to correctly apply international customs. In the field of foreign-related commercial law, there are numerous international customs, such as the Uniform Customs and Practice for Documentary Credits (UCP 600) and the Uniform Rules for Collection (URC 522). These international customs, except for those that violate China's public interests, should be respected by the parties' choice of application. If the parties have not clearly chosen, and China's law has not explicitly specified, the People's Court may refer to international customs in adjudication. This book, from the perspective of adjudication practice, focuses on seven major categories of cases: international commodity trade disputes, international financial services trade disputes, foreign-related insurance disputes, letter of credit transaction disputes, foreign-invested enterprise disputes, foreign-related debt disputes, and foreign-related tort disputes. It combines theory with practice to explore some controversial issues, demonstrating strong targeting and practicality. It can be said to provide practical guidance for adjudication work. The authors of this book are judges engaged in foreign-related commercial adjudication, all of whom have solid legal theoretical foundations and rich adjudication experience. Some of them have also undergone advanced studies abroad. The publication of this book is the result of collective hard work and reflects the theoretical level and writing skills of foreign-related commercial judges in Hubei. Of course, there are still many shortcomings in this book. We sincerely hope that our colleagues in foreign-related commercial law will not hesitate to offer advice, and we express our heartfelt gratitude! Sun Yingzheng, May 17, 2004