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Chinese Approaches to Reform Consumer Protection Law: Substantive Law and Conflict Law

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Consumer Law and Socioeconomic Development

Abstract

The long-awaited first Act of China Private International Law, “Law of Application of Law for Foreign-Related Civil Relations of People’s Republic of China” (LALFCR), was adopted on October 28, 2010, and came into force on April 1, 2011. Unprecedented, the legislation of China expresses its protective attitude of private international law to consumers evidenced by Article 42 of the LALFCR. There is one special article for consumer contract’s applicable rule among all the 52 articles, which is the first protective choice of law rule in China’s legislative history:

Article 42: Consumer contract shall be governed by the law of the country of the consumers’ habitual residence. The law of the country where the products/commodities and services be supplied should govern the contract, provided that it was chosen by the consumer or there is no related business activities of supplier/professional in the country of the consumer’s habitual residence.

Part of this article was written in 2010, the rest was written in 2013. The article was originally published at Revista de Direito do Consumidor Vol. 103, pp. 143–154.

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Notes

  1. 1.

    Han D P (2006), p. 59.

  2. 2.

    Huang J (2006), p. 120.

  3. 3.

    GPCL Chapter VIII: Application of Laws to Civil Matters involving Foreign Elements.

  4. 4.

    ECFI was abolished in 1999.

  5. 5.

    “Explanation of Supreme People’s Court’s on Selected Questions of Application of Foreign Economic Contract Law” was abolished in 2000.

  6. 6.

    Article 126: The parties to a foreign-related contract may choose those laws applicable to the settlement of contract disputes, unless stipulated otherwise by law. If the parties to a foreign-related contract fail to make such choice, the State laws most closely related to the contract shall apply.

    For the contracts to be fulfilled in the territory of the People’s Republic of China on Chinese-foreign equity joint ventures, on Chinese-foreign contractual joint ventures and on Chinese-foreign cooperation in exploring and exploiting natural resources, the laws of the People’s Republic of China shall apply.

  7. 7.

    Article 145 of GPCL, and Article 142 of Contract Law, Article 5 of 2007 Rules, etc.

  8. 8.

    Draft Civil Code of PRC, Part IX Application of law of Foreign-related Civil Matter. There are 8 chapters including 94 articles embodied in the Part IX.

  9. 9.

    China Association of Private International Law was found in Oct, 1987. From 1993, the association began its draft works on Model Law under the efforts of former President Prof. Depei Han. After several amendments, the final text is the sixth edition which embracing 166 Articles separated in five Chapter of General Principle, Jurisdiction, Application of Law, Judicial Assistance and Supplementary Provisions.

  10. 10.

    Huang J (2006), p. 129.

  11. 11.

    See Preamble of The Model Law of Private International Law of The People’s Republic of China, presented by the China Association of Private International Law, Law Press, China, 2000.

  12. 12.

    Model Law Article 31: The court of PRC shall have jurisdiction over an action arising from a dispute in respect of consumer rights and interests, if the domicile or the habitual residence of the consumer is suited within the territory of the PRC.

  13. 13.

    Model Law Article 101: Failing choice of law, the contract is governed by the law of the place with which it has a closest connection. Generally, the law of the closest connection with the following contracts is decided in accordance with the following provisions:…(18) The consumer contract is governed by the law of the place of the consumer’s domicile or habitual residence….

  14. 14.

    Model Law Article 100: Contracts are governed by the law the parties agreed on and explicitly chose except as otherwise stipulated by the PRC law and by the treaties concluded or acceded to by the PRC. …

  15. 15.

    The proposal includes 78 articles presented by the team lead by Prof. Jin Huang who is the present president of China Association of Private International Law.

  16. 16.

    The Final Proposal Article 56: Consumer contracts should be governed by the law of consumer’s habitual residence or the place where the commodities or services be supplied. The law chosen by the parties which has relative connection with the consumer contract shall be applied; except the circumstance of the consumer consumed in the place of business located without invited by the business, the choice of law shall not be contrary to the mandatory rules of consumer’s habitual residence, provided the consumer’s habitual residence is the place where the business has ever deal with any relative operations via any medium, or sent any individual invitation to consumer, or received the order form the consumer.

  17. 17.

    GPCL Article 142: The application of law in civil relations with foreigners shall be determined by the provisions in this chapter.

    If any international treaty concluded or acceded to by the People’s Republic of China contains provisions differing from those in the civil laws of the People’s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People’s Republic of China has announced reservations.

    International practice may be applied on matters for which neither the law of the People’s Republic of China nor any international treaty concluded or acceded to by the People’s Republic of China has any provisions.

  18. 18.

    Huang J, Guo M L (2007), pp. 381–382. This paper was first published in Yearbook of Private International Law (Vol. 1, 1999), pp. 135–156.

  19. 19.

    Chapter VIII of GPCL is a particular chapter for application of law rules in Civil Relations with Foreigners from Article 142 until Article 150.

  20. 20.

    Article 126 of CL is a special choice of law rule of foreign-related contracts.

  21. 21.

    Art 2. The application of laws concerning foreign-related civil relations shall be determined in accordance with this Law.

  22. 22.

    Supreme people’s Court, Opinions to Several Questions concerning Implementing the General Principle of Civil Law of the People’s Republic of China, (1988), Art 178: Where either party or both parties in a civil legal relationship is an alien, a stateless person or a foreign legal person, and the object of the civil legal relationship is within the territory of a foreign country, and the legal facts that produce, alter or annihilate the civil relations of rights and obligations occur in a foreign country, such relationship shall be called foreign-related civil relations.

  23. 23.

    Huang J & Qian X F (1995), p. 293.

  24. 24.

    The choice of law rule of labor contracts is stipulated by Article 43 of LALFCR. Art 43: The laws at the working locality of laborers shall apply to labor contracts; if it is difficult to determine the working locality of a laborer, the laws at the main business place of the employer shall apply. The laws at the dispatching place of labor services shall apply to labor dispatches.

  25. 25.

    LALFCR Article 41: The law chosen by the parties should be applied to the contract. In the circumstance where the parties failed to choose, the habitual residence’s law of one party should be applied, provided the obligation implemented by that party is the most characteristic performance; or other law which possesses the most significant relationship with the contract.

  26. 26.

    LPCRI Article 2: The rights and interests of consumers in purchasing and using commodities or receiving services for daily consumption shall be under the protection of the present Law, or under the protection of other relevant laws and regulations in absence of stipulations in this Law.

  27. 27.

    CISG Article 2: This Convention does not apply to sales: (a) of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use;…

  28. 28.

    LALFCR Article 9: Foreign laws applicable to foreign-related civil relations do not include the Law of the Application of Law of this foreign country.

  29. 29.

    LALFCR Article 4: If there are mandatory provisions on foreign-related civil relations in the laws of the People’s Republic of China, these mandatory provisions shall directly apply.

  30. 30.

    Art. 36, Law of the People’s Republic of China on the Protection of Consumer Rights and Interests 2013.

  31. 31.

    Art. 37 (8), Law of the People’s Republic of China on the Protection of Consumer Rights and Interests 2013.

  32. 32.

    Art. 37 (2), Law of the People’s Republic of China on the Protection of Consumer Rights and Interests 2013.

  33. 33.

    Art. 47, Law of the People’s Republic of China on the Protection of Consumer Rights and Interests 2013.

  34. 34.

    Art. 25, Law of the People’s Republic of China on the Protection of Consumer Rights and Interests 2013.

  35. 35.

    Art. 23, Law of the People’s Republic of China on the Protection of Consumer Rights and Interests 2013.

  36. 36.

    Art. 55, Law of the People’s Republic of China on the Protection of Consumer Rights and Interests 2013.

  37. 37.

    Available at http://en.internationalconsumer.org/Plus/m_default/Cms/docDetail.php?ID=19.

References

  • Huang J (ed) (2006) Private international law, 2nd edn. Law Press, China

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  • Han DP (ed) (2006) New private international law. Wuhan University Press, China

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  • Huang J, Qian XF (1995) “One country, two systems”, three law families, and four legal regions: the emerging inter-regional conflicts of law in China. Duke J Comp Int Law 5:289–328

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  • Huang J, Guo ML (2007) New development of Chinese private international law. In: Huang J (ed) International law from a marco-perspective. Wuhan University Press, pp 381–382

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  1. Faculty of Law and Wolfson College, University of Oxford, Oxford, UK

    Ying Yu

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  1. Faculty of Law, Federal University of Rio Grande do Sul, Porto Alegre, Brazil

    Claudia Lima Marques

  2. Faculty of Law, University of Macau, Macau, Macao

    Dan Wei

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Yu, Y. (2017). Chinese Approaches to Reform Consumer Protection Law: Substantive Law and Conflict Law. In: Lima Marques, C., Wei, D. (eds) Consumer Law and Socioeconomic Development. Springer, Cham. https://doi.org/10.1007/978-3-319-55624-6_7

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