An Empirical Assessment and Analysis of the United Nations Convention on Contracts Judicial Applicability in China  

作　　者：Chen Sihan 

机构地区：[1]Tsinghua University

出　　处：《Contemporary Social Sciences》2023年第6期53-74,共22页当代社会科学（英文）

摘　　要：Chinese domestic legislation on the judicial applicability of international treaties has been unsettled,especially under the Civil Code,which is silent on this issue.However,previous studies have depicted an image of a“pro-CISG”attitude in Chinese legal practice,which is distinguished from the tendency to circumvent the CISG in other jurisdictions such as the U.S.This contradictory phenomenon,namely the absence of guiding norms versus the embracement of the CISG in judicial practice,is rarely discussed,especially within the context of civil codification and recent external economic challenges.To verify this paradox,a manually collected dataset of 223 court decisions from 2013 to 2023 identifies some basic characteristics of the CISG judicial applicability in China,including the application rate,legal reasoning paths,citation frequencies of specific provisions,and some qualitative observations about the judicial behaviors in the international sales dispute resolution.The main finding is that Chinese courts have been applying the CISG at an obviously higher rate,compared with both their foreign counterparts and the general rate of applying foreign law in the international civil and commercial litigations in China.To explain this gap between“law in book”and“law in action,”the context of Chinese judicial practice should be considered.Despite the vagueness of domestic legislation,the judicial policy promotion,the innovative guiding cases system,the legal transplantation,and other factors may contribute to the“pro-CISG”attitude.As for the future promotion of CISG in the Chinese style of international commercial dispute resolution,these factors may coordinate with the legislative improvements.

关 键 词：CISG China Judicial Applicability Empirical Study 

分 类 号：D923[政治法律—民商法学] D997[政治法律—法学]