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《Journal of Liaoning Administrators College of Police and Justice》 2018-04
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On the application of the non-effective treaty in China in foreign-related civil and commercial judgment

Xue Jiaqi;Nanjing Normal University;  
More and more non-effective treaties are being applied in judicial practice. The applicable logic of the non-effective treaty is mainly reflected in the theoretical basis for its application,the provisions of China's legislation and judicial interpretation on the application of the non-effective treaty. How ever,China's existing legislation and judicial interpretations do not satisfactorily meet the practical needs of foreign-related civil and commercial judgments. Therefore,combined with the analysis of the specific cases in the practical application of the non-effective treaty,the paper points out the problems in its application. To improve the application of non-effective treaty in foreign-related civil and commercial judgments,it can be considered mainly from the follow ing aspects: the parties can be chosen to apply the non-effective treaty including a third party in a civil action with independent claim; the applicable field can be extended to other necessary areas beyond the contract; in addition to the choice of the parties,the application of the non-effective treaty also includes the application of the court's active ex officio; in the judicial interpretation,the applicable nature of the non-effective treaty is determined as the applicable law.
【CateGory Index】: D997
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