This concluding Chapter summarizes how consumer jurisdiction and choice of law rules in Chinese private international law could or should be improved to enhance consumer protection and facilitate consumers’ access to justice in cross-border civil litigation. By examining the effectiveness of existing rules and identifying legal gaps, the analysis draws on case law and academic works based on the weaker party protection theory in China, leading to recommendations for clarifying or reforming current consumer jurisdiction and choice of law rules. The following conclusions are based on three fundamental questions: (1) who is a consumer? (2) what are the jurisdiction rules over consumer contracts? (3) what are applicable law rules over consumer contracts? To achieve a higher level of consumer protection, this chapter concludes that it is crucial to clarify the relevant criteria for determining consumer status, the material scope of consumer contracts, and the conditions to apply consumer protective rules. For instance, China could combine the current positive definition of consumer under ‘daily consumption need’ test with a negative definition. A dual purpose contract can be classified as a consumer contract if its primary purpose is for private, household, family consumption. Package travel and timeshare contracts should be expressly included in the scope of consumer contracts. In addition, it is essential to establish a favorable consumer jurisdiction over in China and restrict the validity of choice of court agreement in consumer contracts. Instead of adhering to strict unilateral party autonomy, which designates two laws, embracing bilateral party autonomy with the limitations of mandatory provisions could offer a more balanced approach. In this context, the distinction between mandatory and overriding mandatory provisions and their different roles in consumer protection need to be clarified.

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Conclusions

  • Zhen Chen

摘要

This concluding Chapter summarizes how consumer jurisdiction and choice of law rules in Chinese private international law could or should be improved to enhance consumer protection and facilitate consumers’ access to justice in cross-border civil litigation. By examining the effectiveness of existing rules and identifying legal gaps, the analysis draws on case law and academic works based on the weaker party protection theory in China, leading to recommendations for clarifying or reforming current consumer jurisdiction and choice of law rules. The following conclusions are based on three fundamental questions: (1) who is a consumer? (2) what are the jurisdiction rules over consumer contracts? (3) what are applicable law rules over consumer contracts? To achieve a higher level of consumer protection, this chapter concludes that it is crucial to clarify the relevant criteria for determining consumer status, the material scope of consumer contracts, and the conditions to apply consumer protective rules. For instance, China could combine the current positive definition of consumer under ‘daily consumption need’ test with a negative definition. A dual purpose contract can be classified as a consumer contract if its primary purpose is for private, household, family consumption. Package travel and timeshare contracts should be expressly included in the scope of consumer contracts. In addition, it is essential to establish a favorable consumer jurisdiction over in China and restrict the validity of choice of court agreement in consumer contracts. Instead of adhering to strict unilateral party autonomy, which designates two laws, embracing bilateral party autonomy with the limitations of mandatory provisions could offer a more balanced approach. In this context, the distinction between mandatory and overriding mandatory provisions and their different roles in consumer protection need to be clarified.