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英国法律作业:“What is the current position of Hongkong under the U

时间:2019-08-13 10:20来源:未知 作者:anne 点击:
《联合国国际货物销售合同公约》(以下简称《销售公约》)是一项统一的国际销售法条约。1997年7月1日以前,中国大陆的法律体系是罗马法系,而在香港则是普通法系,也叫判例法,1997年7月
《联合国国际货物销售合同公约》(以下简称《销售公约》)是一项统一的国际销售法条约。1997年7月1日以前,中国大陆的法律体系是罗马法系,而在香港则是普通法系,也叫判例法,1997年7月1日香港统一后,必然会出现不同法系之间的冲突。“两制”,香港的法律制度发生了巨大的变化。在香港统一之前,中国政府提交的声明是指1997年7月1日以后在香港继续向联合国秘书长申请的条约。它列出了统一后适用于香港的公约的清单。然而,在《宣言》中,没有说明《联合国国际货物销售合同公约》(以下简称《国际货物销售合同公约》)是否适用于香港,因此,是否适用于香港,这一点已被混淆。她的CISG应该在香港应用,有不同的观点。目前,在美国和意大利等国家,在处理货物贸易合同时,没有明确排除CISG的申请,本公约自动适用于香港。然而,法国反对这种做法,法国法院的态度是,CISG不应自动应用于该国与香港之间的贸易合同纠纷。
The United Nations Convention on Contracts for the International Sale of Goods (hereinafter “CISG”; the Convention) is a treaty that is a uniform international sales law. Before July 1st, 1997, the legal system in mainland China was Roman law system, while in Hong Kong, it was common law system, also called case law.After the reunification of Hong Kong on July 1st, 1997, there will inevitably be conflicts between different legal systems.Under the guidance of "one country, two systems", great changes have taken place in Hong Kong's legal system. Before the reunification of Hong Kong, the Chinese government submitted Declaration which refers to treaties continuing to apply in Hong Kong after July 1st, 1997 to the Secretary-General of the United Nations at that time. It states the list of conventions applicable to Hong Kong after the reunification. However, in the declaration there did not state whether the United Nations Convention on Contracts for the International Sale of Goods (hereinafter CISG)were applicable to Hong Kong, therefore, whether it was applied to Hong Kong has been confused.In the judicial practice of various countries, whether CISG should be applied in Hong Kong, there are different views. At present, in countries such as the United States and Italy, when dealing with trade contracts in goods without explicitly excluding the application of CISG, this convention automatic applied to Hong Kong. However France, opposed such an approach, and the attitude of the French courts was that CISG should not automatically apply in trade contract disputes between the country and Hong Kong.
 
Countries supporting the application of CISG in Hong Kong支持CISG在香港应用的国家
通常情况下,如美国和意大利等国家在处理国际货物贸易争端时,认为香港是合适的缔约方,如果当事人在合同中没有明确同意排除CISG的申请。如果没有任何问题,公约将自动适用于贸易合同。在美国地方法院有一个关于冰箱销售合同的案例,在这个案例中,CNA国际公司诉广东科龙电子控股有限公司(Guangdong Kelon Electronical Holdings)等。法官建议,首先,香港基本法表明香港是中国神圣不可分割的领土,但由于它的特殊地位,它享有自治权和独立立法权和私法执行权。对于内地和香港法律制度的差异,这符合《公约》第93条第1款规定:“(1)如果缔约国有两个或两个以上领土单位,根据其宪法,不同的法律体系是适用的。可以就本公约所处理的事项,在签字、批准、接受、核准或加入时声明本公约适用于所有领土单位或仅适用于其中一个或多个领土单位,并可以通过提交一份第二,如果起草者分析CISG的目的,那就是为了促进国际贸易的发展和统一全球经济,我们也应该考虑香港应该适用CISG的规定。
Normally, countries such as the United States and Italy consider Hong Kong to be a suitable contracting party whenever it deals with disputes in international trade in goods between the countries and Hong Kong, if the parties do not expressly agree in the contract to exclude the application of CISG, the convention will automatically apply to the trade contract if nothing goes wrong. There was a casein the United States District Court regarding a contract for the sale of refrigerators.In this case CNA Int'l, Inc. v. Guangdong Kelon Electronical Holdings et al. [Case No. 05 C 5734] , the judge suggested, first of all, the basic Law of Hong Kong shows that Hong Kong is sacred and indivisible territory of China but due to its special status, it enjoys autonomy and independent legislative and private law executive power. And for the differences in the legal systems between the mainland and Hong Kong, this is in accordance with article 93, paragraph 1 of CISG, which stipulated, “(1) If a Contracting State has two or more territorial units in which, according to its constitution, different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time.” .Secondly, if analyzing the purpose of the CISG by the drafters, that is to promote the development of international trade and unify the global economy we should also consider that Hong Kong should apply the provisions of the CISG.
 
Countries not supporting the application of CISG in Hong Kong
However, in French judicial, the French High Court ruled on a dispute over the sale of international goods by telephone.The French company purchased the goods from Chinese company and found the goods to be defective when receiving the goods., which did not conform to the contract, so the French company returned the goods to the company in China,,in accordance with the contract.However, the Chinese company refused the French company's request, and then the French company sued the court for the termination of the contract and ordered the seller to compensate the buyer for the losses of the buyer.
 
The court's decision was based on Article 93 of the Convention.When a State party wishes to apply the CISG within its territory, it must meet two conditions. Firstly, the territorial units have different legal systems.Secondly, the State party should submit to the Secretary-General of the United Nations a declaration which clearly states that the territorial unit applies the CISG.In Article 93 (2) of CISG, it stipulated: “[T]hese declarations are to be notified to the depositary and are to state expressly the territorial units to which the Convention extends.” In addition, in an existing diplomatic memorandum, it was stated that the Chinese Government had submitted to the United Nations a declaration on the subsequent application of treaties in Hong Kong not including the CISG. In particular, looking back on the history of Hong Kong's application, the CISG is not applicable to Hong Kong at the time of British rule. After the reunification, the statement submitted by the Chinese government did not indicate that the CISGwill be applied to Hong Kong . Therefore, the CISGis not applicable to Hong Kong.
 
From the judgments of the United States court and the French High Court, it is easy to see that the interpretation of Article 93 of the CISG varies widely. In the case of States parties with multiple territorial units, if it is necessary to apply the CISG, the State party should specify where it is necessary to apply it. In contrast to the declaration submitted by the Government of China, which does not indicate the Conventionwould be applied to Hong Kong after reunification, so it is fair and reasonable to say that the CISGis not applicable to Hong Kong.
 
Judicial practice in Hong Kong
Article 93 in the Convention sets out the specific problems of the application of the Convention in a State with multiple territorial units,but these are under the precondition that these State parties has not made declaration ofthe Convention in their territorial units. In fact, long before the reunification of Hong Kong, the Chinese Government had already submitted a declaration listing the list of conventions which had been applied to Hong Kong since 1997. But the declaration did not include the CISG. Therefore, in my opinion, this declaration constitutesthe second half of Article 93paragraph 1 inthe treaty, that is, “...it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time.”And this is one of the reasons why the CISG is not applicable to Hong Kong.
 
After Hong Kong's reunification, China regained sovereignty over Hong Kong.Since the reunification of Hong Kong, there has never been a case of applying CISG to Hong Kong in the courts of Hong Kong. In judicial practice, it is almost tacitly believed that in Hong Kong, the Convention is not applicable. It can be seen that the attitude of Hong Kong courts is very clear that Hong Kong is not applicable to the CISG Convention.
 
Conclusion
With the continuous improvement of China's international status and the continuous expansion of import and export trade, China plays an important role in the international market.Therefore, after joining the United Nations Convention on Contracts for the International Sale of Goods, the application and implementation of the Convention plays an extremely important role as a model for all the countries of the world.Although I think that CISG is not applicable to Hong Kong at this stage, under the future economic globalization, Hong Kong, as an important link point for China to promote international trade, should conform to the international situation and make a declaration that the CISG is applicable to Hong Kong.This practice not only promotes the domestic economy to connect with that of the international, increases the international trade volume, but also makes the indispensable contribution to the economic globalization of our country and the development and progress of theworld economy.


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