论文部分内容阅读
摘要：由于经济全球化的发展，对国际条约的研究开始在许多国家流行开来。尝试通过比较和分析指出两个重要国际条约——PICC和CISG所面临的问题，此外，也尝试提出一些切实可行的解决办法。
关键词：优势；问题；思考
中图分类号：A8文献标志码：A文章编号：1673-291X（2011）09-0213-03
With the development of the global economy，the contraction among the different countries becomes closer and closer，however，following it; the global commercial conflicting is also increasing quickly and happening frequently.Thus，how to deal with the problems which happened among the global commercial action and relax the contradictory which is caused by the different custom and law among the different countries have become a subject to everybody.Under this situation，PICC arising at the historic moment，which advanced enormously and fitted more to the different countries’ specific situation than the past CISG above the foundation of CISG.It is an essential fruit for the global business，however，because of the a variety of subjective or objective reasons，the practicing result is not as good as we thought，even so we still could not deny the value of these international contracts whatever CISG or PICC.Under the complete affirmative premise to their value，the writer tries to find the solution about the realistic problem which is made in the practicing of these rules by analysis the difference and their own advantages and disadvantages between PICC and CISG.
一、The root and the historic mission
Since the international trade was produced，the commercial conflicting which was made by the different laws and customs among the different countries is always following it until now，however，in the ancient time，the international trade was not so important that could influence the economy of a nation heavily，hence，our ancestors never pay so much attention in this field or just resolved the problem by a barbaric way.This situation was changed heavily in the modern time，especially after Britain bourgeois revolution，the international trade was becoming more and more popular and began to influence a variety of fields in the social life.Under this kind of situation，the main countries had to try to make some rules to improve the complicated situation，because of the difference among the different laws and customs of all countries，the law hindrance hindered the communication in the international trade heavily and making the unified norm had become an essential mission.
In the 1930，UNIDROIT made attempt to formula the substantive law of unification method for the international cargo business trade.In 1964，Hague conference passed officially 《International cargo business unification method joint pledge》and 《 International cargo contract of sales establishment unification method joint pledge 》.Although these two joint pledges contributed to the international trade enormously，they could not get the original goal which they were made at beginning.Therefore，UNCOTRAL finished the draft of 《United Nations Convention on Contract for the International Sale of Goods》（CISG） above the two joint pledges foundations in 1978 and passed it in the Vienna convenes in the diplomatic conference.In 1988 1.1，this joint pledge became effective officially.
In view of the fact that further develops and the consummation international trading convention need，UNIDROIT established a work team which consisted by the experts，scholar，lawyer and judge who get rich practicing experience and come from the different law cultural background in the law of contract and international trade law fields for the searching elaborates the international commercial contract principle of equality.Finally，UNIDROIT’s council passed 《Principles of International Commercial Contracts》 （PICC） at the seventy-third conference in the Rome.
PICC is an great achievement after CISG and it in heritages the main achievement of the CISG and develops CISG properly，which development has been suitable the unification method standard the space，moreover，as the PICC was established，it had been allocated the special historic mission.In the modern time，the international trade has become an essential part in the most countries’ economy.So PICC would like to relax the contradictory which is caused by the law and custom difference even if it is not as perfect as we thought before.This is a serious subject for every country，hence，we could not hope that all the problems will be resolved by one or two contracts in the short time，however，we could improve the modern contracts or law properly and it will be a realistic solution to the problems.
二、The comparative and the problem of PICC and CISG
Although PICC looks like better than CISG，we could not deny the valve of CISG easily.Because PICC still has many imperfect places and CISG also has its own unique value for the international contracts’ working out.What’s more，CISG has experienced examination for a long time; however，PICC is just practiced in recent years.During the practicing time，CISG has proved that it has strong feasibility，but PICC which looks like much advancer has no this kind of experience.Except what just are outlined before，PICC also has so many indefinite factors such as the substance，force，and so on，so that its suitable prospect is not as clear as the most of us thought.Even if both of them could be the supplement mutually，just as perfect as most people thought，there are also having lots of contradictory which we have to resolve.Thorough the comparative of them，their advantages and disadvantages could be expressed clearly.As the vision of the writer，their difference should be as follow:
1.Comparative.（1）Their nature is different.Although CISG was passed earlier than PICC and maybe its flaw is also obvious in most people’s vision，it is an essential international contract which was made thorough so many countries discussion and compromising，and all of the countries which join the formula process agreed.To a certain extent，it has stronger compelling force to the signatory state，even if the nations which are not joined in this contract could refuse to obey it and sometimes the signatory states are also broke it under the situation that the rules will threat their national benefit，in contrast，PICC was made by a professional work team，although it seems more specialization，it lacks agreement and participation of the different countries，so it didn’t considerate the unique national situation among the different countries completely，of course，it is also lacking the compelling force because of it.What’s more，PICC is only used as the collection of the international conventions which is forming in the international contact medium and long-term practice，but gradually and it does not have the legal binding force.It potency comes from the litigants’ meaning autonomous and the approval of the different countries.According to international convention first suitable principle，when a country law concludes with this country or participates the international convention which has the different stipulation，first is suitable this international convention the stipulation (statement saving clause exception).The international convention is suitable，then receives many limits，which does not have the compulsive suitable potency，therefore can only choose voluntarily by the contract litigant is suitable or in originally should take a country law as the criterion law，when this country law and this country conclude or participates the international contracts which have not been related the stipulation is suitable the international convention.If the litigants refuse to approve or suit，PICC has no power to force them to suit.（2）Applicable scope is different.Because of the different establishing background，the PICC’s applicable scope is much wider than the CISG’s.In fact，the difference between them was caused by the periodic factor.In the period which CISG was made，the Internet was not as developed as modern time and the international trade needed a sufficient international agreement to regulate the complicated international trade eagerly，so you can not find something that is showing in PICC in it.We could not tell the difference between them easily.For this aspect，we could understand from two points:1）From the suitable object to see，the traditional international trade theory is only including the specific commerce—cargo trade.With the development of the international trade，especially the internet trade appeared，the new economic theory begins to include invisible trade.This is also the different special points to the CISG and PICC. 2）From the potency to the people to see，CISG has its own stipulation—except the countries which join this agreement，no country need to obey.However，it also has some accommodating to rules，such as business in different signatory state’s litigant or business in the different country’s litigant but the country is not a signatory state，as the rules of CISG，they could suit a country’s civil law.However，PICC has no any rigid standard to the suitable litigant.So long as the both parties agree its contract to have jurisdiction by this general rule，it could be used.Of course，if both sides refuse to suit it，it will be nothing to them.
2.The problem.Just as we can see on above，even if both of them could supply mutually as perfect as most people thought，we also have to face the pile problems that both of them cause.Except the periodic factor，there is also having some other factors which could affect their practicing result such as potency，scope，idea，etc.The writer tries to collect main of them as follow:（1）The different establishing and technological background.When PICC was made，Internet had influenced on every corner in the world and the most countries come up the higher quality to the international business contract.Hence，PICC followed the trend.Moreover，the theory which takes advantage to make PICC is the newest economical theory，including lots of the advanced legal idea.According to this，we have to face this kind of contradictory that when PICC is made use in the international trade and unfortunately PICC has no rules to regulate this contract，CISG could not be suited that easily，even if it has the relevant rules because these rules will have different meaning and explanation.（2） The different potency.Just as we know from the traditional saying that no matter how good the law is，if it has no force to make the common people to obey，it is also useless.Now the most international agreements have to face this kind of embarrass situation，however，PICC’s situation is worse than others because it is not a complete international agreement，in contrast，CISG has got the agree of the signatory states，so the countries which suit it has to obey its main rules，at least，they have to make indirect way to avoid it so that their activity could be seemed legally.However，PICC has no this kind of power.It will not influence the litigants unless they decide to suit it.What’s more，PICC is a collection of the international trade customs without legal power; this also will affect its realistic influencing.（3）The different traditional idea about them.In most countries’ traditional mind，PICC’s status is not as holy as CISG，because it lacks of the mutual discussion among the different countries.Indeed，CISG has experienced more than eighty years from passed and it has been proved that it could be practiced effectively in reality，even if it seems a little bit out of date now.However，PICC just experienced less than thirty years.Although it absorbs so many advanced theories and idea and most of them are fantastic，all of them are lacking of the proof of the reality.In addition，a few countries exclude it because it is not a fruit of consideration full of the benefit of different nations.Since PICC heritages so much fruit from CISG，it should also get a proper way to make the most countries accepting actively rather than waiting passively for the other countries’ accepting.
三、The solution
Facing the modern situation of CISG and PICC，the writer considers that it is so hard to make another worldwide international contract or make a large revision for them.Thus the writer thinks maybe the suggestions as follow will be practiced easier than the other solutions.
1.Establishing the professional committee to surveillance.Just as the most experts said that if legislation has no any surveillance，it will equal to nothing no matter how perfect it is.In fact，we also could fit this saying to the international legal contracts even if sometimes their compelling force is restricted by a variety of conditions such as the international politic，the special situations of the different counties，the lack of fitting standard，etc.Indeed，the unique situation of the international legislation should be considered，thus the writer thinks making a professional committee seems much easier to practice，because this organization could be consisted by the experts who come from a variety of countries and be chose seriously by their government.If so，the authority of PICC and CISG will be higher and it is also convenient to make different countries to prevent their right.
2.The international authority legal organization makes the judicial interpretation frequently.Nothing is perfect in this world，including CISG and PICC.Hence，they should be ameliorated during the process that the whole world practices.However，it is too hard to create and revise frequently or in time for a international contracts.The reality is always changing and there is no way to keep a sufficient business order without relevant and advanced legislation.For resolving this contradictory，the writer considers that maybe the international authority legal organization could model the way that the Chinese legal organization always uses--- making the judicial interpretation.Although it could not replace the legislation，it could relax the situation that the legislation is not that perfect.Moreover，it is faster and simpler and will give enough time for huge revision or establishing new legislation.
3.Negotiating with most nations and trying to get their agree.The important standard whether it is a successes international contract is whether the different could agree or practice it.Therefore，the agreement of the most nations in the world is essential for PICC and CISG，especially for PICC.Thus the writer thinks the relevant organization should organize the meeting for making one voice for PICC from a variety of countries.
4.Making the relevant punishment for breaking.In fact，all of us will know that no matter what kind of law，if it has no ant punishment for breaking，it won’t be called law，the same as PICC and CISG.Even if the international contracts have its own unique difficulty，the relevant organization also should make some punishment in its range.Now it is really a problem which PICC and CISG have to resolve in the next step.
5.Making the accommodating rules.Just as the writer outlined above，all countries have their own unique conditions so that they could not practice both them completely，however，facing this kind of situation，if still force them to fit it，it is really not a good idea for them and also not good for the visional development of PICC and CISG.Thus，maybe the relevant organization could make some accommodating rules for the different countries，so that they could practice them properly.
Given what the writer has outlined above，PICC and CISG are two of the most important international contracts for the international trade.How to make them better to practice will be an essential subject to most countries.The writer hopes that this paper could make some useful inspiration for the following reforming of these two international contracts.
Bibliography:
[1][Former Soviet Union]Kerry Burma branch 《International law dictionary》，Liu sha，Chen sen，Ma jin wen translate，CommercialPress in the May，1995 1st edition.
[2]Yu jing song 《International economic law》，Higher publishing house in the June，1994 1st edition.
[3]International unified civil law association《International commercial contract general rule》，The foreign trade and economic cooperation department treaty law department translates，Legal publishing house in the August，1996 1st edition.
Advantage and Problem
——The Pondering About the Comparative of PICC and CISG
ZHANG Yi1，ZHANG Ji-guo2
（1.Qingdao University，Qingdao 266071，China；2.Qingdao Submarine Institution，Qingdao 266071，China）
Abstract: Because of the global economic development，the researching of international contracts is popular in most countries.This paper tries to point the problems which the two essencial international contracts——PICC and CISG by the comparative and analysis of them.What’s more，the writer also tries to come up some solution to these questions.
Key words: advantage; problem; pondering[责任编辑 郭伟]
关键词：优势；问题；思考
中图分类号：A8文献标志码：A文章编号：1673-291X（2011）09-0213-03
With the development of the global economy，the contraction among the different countries becomes closer and closer，however，following it; the global commercial conflicting is also increasing quickly and happening frequently.Thus，how to deal with the problems which happened among the global commercial action and relax the contradictory which is caused by the different custom and law among the different countries have become a subject to everybody.Under this situation，PICC arising at the historic moment，which advanced enormously and fitted more to the different countries’ specific situation than the past CISG above the foundation of CISG.It is an essential fruit for the global business，however，because of the a variety of subjective or objective reasons，the practicing result is not as good as we thought，even so we still could not deny the value of these international contracts whatever CISG or PICC.Under the complete affirmative premise to their value，the writer tries to find the solution about the realistic problem which is made in the practicing of these rules by analysis the difference and their own advantages and disadvantages between PICC and CISG.
一、The root and the historic mission
Since the international trade was produced，the commercial conflicting which was made by the different laws and customs among the different countries is always following it until now，however，in the ancient time，the international trade was not so important that could influence the economy of a nation heavily，hence，our ancestors never pay so much attention in this field or just resolved the problem by a barbaric way.This situation was changed heavily in the modern time，especially after Britain bourgeois revolution，the international trade was becoming more and more popular and began to influence a variety of fields in the social life.Under this kind of situation，the main countries had to try to make some rules to improve the complicated situation，because of the difference among the different laws and customs of all countries，the law hindrance hindered the communication in the international trade heavily and making the unified norm had become an essential mission.
In the 1930，UNIDROIT made attempt to formula the substantive law of unification method for the international cargo business trade.In 1964，Hague conference passed officially 《International cargo business unification method joint pledge》and 《 International cargo contract of sales establishment unification method joint pledge 》.Although these two joint pledges contributed to the international trade enormously，they could not get the original goal which they were made at beginning.Therefore，UNCOTRAL finished the draft of 《United Nations Convention on Contract for the International Sale of Goods》（CISG） above the two joint pledges foundations in 1978 and passed it in the Vienna convenes in the diplomatic conference.In 1988 1.1，this joint pledge became effective officially.
In view of the fact that further develops and the consummation international trading convention need，UNIDROIT established a work team which consisted by the experts，scholar，lawyer and judge who get rich practicing experience and come from the different law cultural background in the law of contract and international trade law fields for the searching elaborates the international commercial contract principle of equality.Finally，UNIDROIT’s council passed 《Principles of International Commercial Contracts》 （PICC） at the seventy-third conference in the Rome.
PICC is an great achievement after CISG and it in heritages the main achievement of the CISG and develops CISG properly，which development has been suitable the unification method standard the space，moreover，as the PICC was established，it had been allocated the special historic mission.In the modern time，the international trade has become an essential part in the most countries’ economy.So PICC would like to relax the contradictory which is caused by the law and custom difference even if it is not as perfect as we thought before.This is a serious subject for every country，hence，we could not hope that all the problems will be resolved by one or two contracts in the short time，however，we could improve the modern contracts or law properly and it will be a realistic solution to the problems.
二、The comparative and the problem of PICC and CISG
Although PICC looks like better than CISG，we could not deny the valve of CISG easily.Because PICC still has many imperfect places and CISG also has its own unique value for the international contracts’ working out.What’s more，CISG has experienced examination for a long time; however，PICC is just practiced in recent years.During the practicing time，CISG has proved that it has strong feasibility，but PICC which looks like much advancer has no this kind of experience.Except what just are outlined before，PICC also has so many indefinite factors such as the substance，force，and so on，so that its suitable prospect is not as clear as the most of us thought.Even if both of them could be the supplement mutually，just as perfect as most people thought，there are also having lots of contradictory which we have to resolve.Thorough the comparative of them，their advantages and disadvantages could be expressed clearly.As the vision of the writer，their difference should be as follow:
1.Comparative.（1）Their nature is different.Although CISG was passed earlier than PICC and maybe its flaw is also obvious in most people’s vision，it is an essential international contract which was made thorough so many countries discussion and compromising，and all of the countries which join the formula process agreed.To a certain extent，it has stronger compelling force to the signatory state，even if the nations which are not joined in this contract could refuse to obey it and sometimes the signatory states are also broke it under the situation that the rules will threat their national benefit，in contrast，PICC was made by a professional work team，although it seems more specialization，it lacks agreement and participation of the different countries，so it didn’t considerate the unique national situation among the different countries completely，of course，it is also lacking the compelling force because of it.What’s more，PICC is only used as the collection of the international conventions which is forming in the international contact medium and long-term practice，but gradually and it does not have the legal binding force.It potency comes from the litigants’ meaning autonomous and the approval of the different countries.According to international convention first suitable principle，when a country law concludes with this country or participates the international convention which has the different stipulation，first is suitable this international convention the stipulation (statement saving clause exception).The international convention is suitable，then receives many limits，which does not have the compulsive suitable potency，therefore can only choose voluntarily by the contract litigant is suitable or in originally should take a country law as the criterion law，when this country law and this country conclude or participates the international contracts which have not been related the stipulation is suitable the international convention.If the litigants refuse to approve or suit，PICC has no power to force them to suit.（2）Applicable scope is different.Because of the different establishing background，the PICC’s applicable scope is much wider than the CISG’s.In fact，the difference between them was caused by the periodic factor.In the period which CISG was made，the Internet was not as developed as modern time and the international trade needed a sufficient international agreement to regulate the complicated international trade eagerly，so you can not find something that is showing in PICC in it.We could not tell the difference between them easily.For this aspect，we could understand from two points:1）From the suitable object to see，the traditional international trade theory is only including the specific commerce—cargo trade.With the development of the international trade，especially the internet trade appeared，the new economic theory begins to include invisible trade.This is also the different special points to the CISG and PICC. 2）From the potency to the people to see，CISG has its own stipulation—except the countries which join this agreement，no country need to obey.However，it also has some accommodating to rules，such as business in different signatory state’s litigant or business in the different country’s litigant but the country is not a signatory state，as the rules of CISG，they could suit a country’s civil law.However，PICC has no any rigid standard to the suitable litigant.So long as the both parties agree its contract to have jurisdiction by this general rule，it could be used.Of course，if both sides refuse to suit it，it will be nothing to them.
2.The problem.Just as we can see on above，even if both of them could supply mutually as perfect as most people thought，we also have to face the pile problems that both of them cause.Except the periodic factor，there is also having some other factors which could affect their practicing result such as potency，scope，idea，etc.The writer tries to collect main of them as follow:（1）The different establishing and technological background.When PICC was made，Internet had influenced on every corner in the world and the most countries come up the higher quality to the international business contract.Hence，PICC followed the trend.Moreover，the theory which takes advantage to make PICC is the newest economical theory，including lots of the advanced legal idea.According to this，we have to face this kind of contradictory that when PICC is made use in the international trade and unfortunately PICC has no rules to regulate this contract，CISG could not be suited that easily，even if it has the relevant rules because these rules will have different meaning and explanation.（2） The different potency.Just as we know from the traditional saying that no matter how good the law is，if it has no force to make the common people to obey，it is also useless.Now the most international agreements have to face this kind of embarrass situation，however，PICC’s situation is worse than others because it is not a complete international agreement，in contrast，CISG has got the agree of the signatory states，so the countries which suit it has to obey its main rules，at least，they have to make indirect way to avoid it so that their activity could be seemed legally.However，PICC has no this kind of power.It will not influence the litigants unless they decide to suit it.What’s more，PICC is a collection of the international trade customs without legal power; this also will affect its realistic influencing.（3）The different traditional idea about them.In most countries’ traditional mind，PICC’s status is not as holy as CISG，because it lacks of the mutual discussion among the different countries.Indeed，CISG has experienced more than eighty years from passed and it has been proved that it could be practiced effectively in reality，even if it seems a little bit out of date now.However，PICC just experienced less than thirty years.Although it absorbs so many advanced theories and idea and most of them are fantastic，all of them are lacking of the proof of the reality.In addition，a few countries exclude it because it is not a fruit of consideration full of the benefit of different nations.Since PICC heritages so much fruit from CISG，it should also get a proper way to make the most countries accepting actively rather than waiting passively for the other countries’ accepting.
三、The solution
Facing the modern situation of CISG and PICC，the writer considers that it is so hard to make another worldwide international contract or make a large revision for them.Thus the writer thinks maybe the suggestions as follow will be practiced easier than the other solutions.
1.Establishing the professional committee to surveillance.Just as the most experts said that if legislation has no any surveillance，it will equal to nothing no matter how perfect it is.In fact，we also could fit this saying to the international legal contracts even if sometimes their compelling force is restricted by a variety of conditions such as the international politic，the special situations of the different counties，the lack of fitting standard，etc.Indeed，the unique situation of the international legislation should be considered，thus the writer thinks making a professional committee seems much easier to practice，because this organization could be consisted by the experts who come from a variety of countries and be chose seriously by their government.If so，the authority of PICC and CISG will be higher and it is also convenient to make different countries to prevent their right.
2.The international authority legal organization makes the judicial interpretation frequently.Nothing is perfect in this world，including CISG and PICC.Hence，they should be ameliorated during the process that the whole world practices.However，it is too hard to create and revise frequently or in time for a international contracts.The reality is always changing and there is no way to keep a sufficient business order without relevant and advanced legislation.For resolving this contradictory，the writer considers that maybe the international authority legal organization could model the way that the Chinese legal organization always uses--- making the judicial interpretation.Although it could not replace the legislation，it could relax the situation that the legislation is not that perfect.Moreover，it is faster and simpler and will give enough time for huge revision or establishing new legislation.
3.Negotiating with most nations and trying to get their agree.The important standard whether it is a successes international contract is whether the different could agree or practice it.Therefore，the agreement of the most nations in the world is essential for PICC and CISG，especially for PICC.Thus the writer thinks the relevant organization should organize the meeting for making one voice for PICC from a variety of countries.
4.Making the relevant punishment for breaking.In fact，all of us will know that no matter what kind of law，if it has no ant punishment for breaking，it won’t be called law，the same as PICC and CISG.Even if the international contracts have its own unique difficulty，the relevant organization also should make some punishment in its range.Now it is really a problem which PICC and CISG have to resolve in the next step.
5.Making the accommodating rules.Just as the writer outlined above，all countries have their own unique conditions so that they could not practice both them completely，however，facing this kind of situation，if still force them to fit it，it is really not a good idea for them and also not good for the visional development of PICC and CISG.Thus，maybe the relevant organization could make some accommodating rules for the different countries，so that they could practice them properly.
Given what the writer has outlined above，PICC and CISG are two of the most important international contracts for the international trade.How to make them better to practice will be an essential subject to most countries.The writer hopes that this paper could make some useful inspiration for the following reforming of these two international contracts.
Bibliography:
[1][Former Soviet Union]Kerry Burma branch 《International law dictionary》，Liu sha，Chen sen，Ma jin wen translate，CommercialPress in the May，1995 1st edition.
[2]Yu jing song 《International economic law》，Higher publishing house in the June，1994 1st edition.
[3]International unified civil law association《International commercial contract general rule》，The foreign trade and economic cooperation department treaty law department translates，Legal publishing house in the August，1996 1st edition.
Advantage and Problem
——The Pondering About the Comparative of PICC and CISG
ZHANG Yi1，ZHANG Ji-guo2
（1.Qingdao University，Qingdao 266071，China；2.Qingdao Submarine Institution，Qingdao 266071，China）
Abstract: Because of the global economic development，the researching of international contracts is popular in most countries.This paper tries to point the problems which the two essencial international contracts——PICC and CISG by the comparative and analysis of them.What’s more，the writer also tries to come up some solution to these questions.
Key words: advantage; problem; pondering[责任编辑 郭伟]