The Reform of China’s System of the Application of Law for Foreign Products Liability- from the General Principles of Civil Law to the Law of the Application of Law for Foreign related Civil Relation

서지정보

· 발행기관 : 인하대학교 법학연구소
· 수록지 정보 : 법학연구 / 14권 / 2호 / 267 ~ 293페이지
· 저자명 : Ding, Li-ming

초록

Chinese legislation does not have specific provisions concerning the law application for foreign products liability and can only apply the provisions regarding the law application for foreign general tort liability in the General Principles of Civil Law before the Law on the Application of Law for Foreign-related Civil Relations of the People’s Republic of China (hereinafter referred to as the Law on the Application of Law) promulgates. Less certainty of law application, lack of feasibility, singleness of connecting points and deviation from the general trend of private international law are some of the problems of the provisions in the General Principles of Civil Law.
The provisions concerning the system of the law application for foreign products liability in the Law on the Application of Law are remarkably more advanced than those in the General Principles of Civil Law. It introduces the “most favorable to the victim principle”, which reflects the peculiarity of products liability; it adopts absolute party autonomy, which meets the developing trend of products liability; it stipulates that the law of the victim’s habitual residence shall apply where the victim fails to make a choice, thus balancing judicial efficiency and substantive equality; it brings in the principle of “excluding the law that the defendant cannot foresee”, taking into consideration the interests of both parties whose bargaining power is asymmetrical. In addition, it definitely chooses the law of the common habitual residence of the parties as their common personal law, abandons the double actionability doctrine on whether tort liability exists, etc. all of which demonstrate the spirits of equality and openness of the Law on the Application of Law. However, the system of the law application for foreign products liability in the Law on the Application of Law is not flawless. Instead, some of its provisions are still open to question. For instance, the scope of unilateral choice of law by the injured party fails to include the product’s acquisition place; the application sphere of the excluding the law that the defendant cannot foresee principle is unduly narrowed; the provisions regarding party autonomy is still incomplete; positive institutional values of the double actionability doctrine are not brought into full play; constructive functions of the most significant relationship rule are not fully taken advantage of, etc.
As to the above problems in the Law on the Application of Law, I suggest that the scope of unilateral choice of law by the injured party should be expanded to include the law of the product’s acquisition place; the application sphere of the excluding the law that the defendant cannot foresee principle should be enlarged; restrictive conditions of party autonomy should be set forth clearly; our legislation should adhere to the double actionability doctrine on the issue of compensation; in respect of the legislative mode for the most significant relationship rule, its functions of overcoming the inflexibility of existing conflicting rules and closing legal loopholes should be integrated in a systematic way, etc.

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