L'influence du droit uniforme international sur le droit chinois des contrats
(2007)
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- Authors
- Supervisors
- Carlier, Jean-Yves
- Abstract
- The thesis consists in a comparative study between, on the one hand, the United-Nations Convention on Contracts for the International Sale of Goods (1980, CISG) and the Unidroit Principles of International Commercial Contracts (1994, 2004, PICC) and, on the other hand, the Unified Contracts Law of the People's Republic of China (1999, UCL). For the purpose of this thesis, importance is attached on the influence exercised by the first two texts, analyzed as example of uniform international law, on the UCL, envisaged as example of Chinese contracts law. The study is done in three aspects, i.e., the legislative aspect, the doctrinal aspect and the practical aspect. With respect to the legislative aspect, the most important conclusion that could be drawn from the analysis is that, for the different stages of contract live, the legislative policies of the UCL are deeply influenced by the uniform international law, particularly by PICC, and at the legislative technical level, this influence is not sufficient, for the formulation of the UCL norms, which are usually less clear, less precise and less complete than uniform international law. The latter conclusion is also valid for the doctrinal aspect. In fact, without denying some positive aspects, the influence exercised by uniform international law on Chinese doctrine is not significant. Firstly, the example which witnesses relatively complete uniform law influence is rare. We can only quote the case of offer and acceptation, about which Chinese scholars unanimously agree to the influence of uniform international law. Secondly, in a number of cases, the penetration of uniform international law to Chinese doctrine appears superficial. Finally, for the cases about which uniform rules were rejected without substitution, Chinese scholars seek rarely solution from uniform international law. A distinction must be operated between the influence of uniform international law (particularly CISG) on Chinese judiciary practice and those on Chinese international commercial arbitration practice. While the first is qualified of negative, the latter is quite positive. In fact, Chinese judges commit usually mistake on the applicability of CISG, while Chinese arbiters do not only exanimate the applicability, but also apply it correctly. Contrary to Chinese judges who render judgment in a very concise style, Chinese arbiters give generally reasoning to their awards. Finally, the number of cases calls also for reflection. Before a small number of judicial decisions (only 19 decisions reported), the arbitration awards become already significant (230 awards). As a conclusion, we can say that the influence exercised by uniform international law on Chinese contracts law is significant with respect to the legislative policies and to international arbitration practice in China, while it is not sufficient to the doctrinal aspect and to the judicial practice. But despite that (fact), the modern and international character of the UCL, as a result of this influence, brings already a better protection to the international commercial contracts concluded between Chinese and foreigner.
- Affiliations
Citations
Zhang, S. (2007). L’influence du droit uniforme international sur le droit chinois des contrats. https://hdl.handle.net/2078.5/273206