国际货物销售合同公约保留的实践研究
发布时间：2019-01-01 13:15
【摘要】：联合国国际贸易销售合同公约(以下简称公约或CISG)是一部处理国际贸易纠纷的国际统一实体法,它在世界贸易领域中的重要地位是其它任何国际公约都无法抗衡的。但该公约毕竟是不同法律、政治和经济情况的国家在一起不断磋商与妥协中达成的成果,保留就成了达成这个公约所无法避开的议题。某些缔约国在批准、接受或加入该公约时根据本国实际情况考量作出了一个或多个保留。主要是“合同形式”保留和“国际私法规则导致适用公约”保留这两项。我国也作出了这两项保留。我国已经撤销了“合同形式”保留,“国际私法规则导致适用公约”保留还未撤销,但适时撤销此项保留能有效解决当前我国在适用公约时产生的种种复杂问题。本文将通过理论联系实际的方法来分析公约的这两项保留。本文分为三个部分,第一部分介绍了公约的保留概述,从维也纳条约法规定的保留的产生、概念、条件及其法律效果介绍保留的基本理论,再阐述CISG所设定的保留条款以及CISG缔约国保留的基本情况。第二部分主要阐述“合同形式”保留,先介绍“合同形式”保留的背景以及作出“合同形式”保留带来的法律效果,再重点分析我国撤销保留的积极影响。第三部分主要阐述“国际私法规则导致适用公约”保留。先是对“国际私法规则导致适用公约”保留有个全面理解,再分析保留的法律效果,最后重点结合国内外的趋势和实践分析我国撤销这项保留的可行性。
[Abstract]:The United Nations Convention on contracts for International Trade (hereinafter referred to as the Convention or CISG) is an international uniform substantive law dealing with international trade disputes, and its important position in the field of world trade can not be countered by any other international conventions. But the convention is the result of constant negotiation and compromise among countries with different laws, political and economic conditions, and reservations become an unavoidable issue. In ratifying, accepting or acceding to the Convention, certain States parties have made one or more reservations in the light of their factual circumstances. It is mainly the "form of contract" reservation and the "private international law rule leading to the application of the Convention" reservations. We have also made both reservations. Our country has withdrawn the "contract form" reservation, the "private international law rule" result in the application convention reservation has not been withdrawn, but the timely withdrawal of this reservation can effectively solve all kinds of complicated problems that our country produces in the application of the convention at present. In this paper, the two reservations to the Convention will be analyzed through a theoretical and practical approach. This paper is divided into three parts. The first part introduces the general introduction of reservations to the Convention, the basic theory of reservations from the point of view of the origin, concept, conditions and legal effects of reservations under the Vienna Law of treaties. The reservation clause set by the CISG and the basic situation of the reservations of the CISG Contracting States are also described. The second part mainly expounds the "contract form" reservation, first introduces the background of the "contract form" reservation and the legal effect brought by the "contract form" reservation, and then analyzes the positive effect of withdrawing the reservation in our country. The third part mainly expounds the reservation of the applicable convention. First of all, there is a comprehensive understanding of the reservation of the applicable Convention caused by the rules of private international law, then the legal effect of the reservation is analyzed. Finally, the feasibility of withdrawing the reservation is analyzed with emphasis on the trend and practice at home and abroad.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D996.1
，
本文编号：2397619
[Abstract]:The United Nations Convention on contracts for International Trade (hereinafter referred to as the Convention or CISG) is an international uniform substantive law dealing with international trade disputes, and its important position in the field of world trade can not be countered by any other international conventions. But the convention is the result of constant negotiation and compromise among countries with different laws, political and economic conditions, and reservations become an unavoidable issue. In ratifying, accepting or acceding to the Convention, certain States parties have made one or more reservations in the light of their factual circumstances. It is mainly the "form of contract" reservation and the "private international law rule leading to the application of the Convention" reservations. We have also made both reservations. Our country has withdrawn the "contract form" reservation, the "private international law rule" result in the application convention reservation has not been withdrawn, but the timely withdrawal of this reservation can effectively solve all kinds of complicated problems that our country produces in the application of the convention at present. In this paper, the two reservations to the Convention will be analyzed through a theoretical and practical approach. This paper is divided into three parts. The first part introduces the general introduction of reservations to the Convention, the basic theory of reservations from the point of view of the origin, concept, conditions and legal effects of reservations under the Vienna Law of treaties. The reservation clause set by the CISG and the basic situation of the reservations of the CISG Contracting States are also described. The second part mainly expounds the "contract form" reservation, first introduces the background of the "contract form" reservation and the legal effect brought by the "contract form" reservation, and then analyzes the positive effect of withdrawing the reservation in our country. The third part mainly expounds the reservation of the applicable convention. First of all, there is a comprehensive understanding of the reservation of the applicable Convention caused by the rules of private international law, then the legal effect of the reservation is analyzed. Finally, the feasibility of withdrawing the reservation is analyzed with emphasis on the trend and practice at home and abroad.
【学位授予单位】：湖南师范大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D996.1
，
本文编号：2397619
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