private international law
Preview:
DESCRIPTION
private international law
Citation preview
1The object of private international law is the civil and
commercial legal relation containing foreign element.For
example:
1.the subject of the legal relation contains foreign element--at
least one party is foreign natural person,legal person,stateless
person or international organization--a Chinese man married an
American woman
2.the object of the legal relation contains foreign
element--subject matter()--legacy in foreign countries
3.the content of the legal relation contains foreign element--the
contract is concluded in foreign countries.
Object
Conflict Law
In common law system,private international law is also called
conflict law().
Why are there conflicts?
Because legal regulations in various laws are different.
The conflicts in private international law are civil and commercial
legal conflicts.
How to solve the problem?
By applying rule of conflict.()
By applying the uniform substantive law.
What is "rule of conflict"?
It's neither substantive law nor procedural law.It just regulates
which law should be applied under a certain circumstance rather
than regulates the rights and responsibilities of the parties.So we
call it "rules of application of law"()
It regulates the legal relationship indirectly,with the help of the
invoked substantive regulations.
Different from substantive regulations,a rule of conflict is
composed of "Object of connection/ Category"(),“Attribution”()and
conjunctive word ()
The applicable law under the guidance of the rule of conflict is
called lex causae()
Category:The legal relationship that need to be regulated by rules
of conflict or the legal problem that need to be solved.
Attribution:the substantive law which is applied to solve the legal
problem.
Point of contact()is a part of attribution.It can either be a
constant point of contact() which cannot be changed or a variable
point of contact ()which can be changed.
Analyze the following rule of conflict:
The laws at the habitual residence shall apply to the civil rights
capacities of a natural person.
The ownership of immovable property shall be bound by the law of
the place where it is situated.
The laws at the locality of an estate shall apply to the
administration of estates and related issues.
The laws at the locality of the court shall apply to a divorce by
litigation.
Category
unilateral conflict rules() refers to the direct provision that
certain legal povisions(domestic law in most cases) should be
applied to a foreign civil relationship.For example:If foreign laws
can not be ascertained or there are no provisions in the laws of
this country, the laws of the People’s Republic of China shall
apply.
bilateral conflict rules()refers to the provisions that provide
only one construvctive law.For example:The ownership of immovable
property shall be bound by the law of the place where it is
situated.
Overlap applicable conflict rules()refers to the provisions provide
at least two applicable laws and the laws should be applied at the
same time.For example:19022:
choice applicable conflict rules()with or without condition
Article 21 The laws at the mutual habitual residence of the parties
shall apply to the marriage qualifications; if there is no mutual
habitual residence, the laws of the mutual state of nationality
shall apply; if there is no mutual nationality and the marriage is
established at the habitual residence or in the state of
nationality of one party, the laws at the locality where the
marriage is established shall apply.
The laws at the place of tort shall apply to liabilities for
tort(the place where the infringing act takes place and the place
where the result of violations of the infringement occurred )
How to deal with a foreign civil case?
Step one:identification()--what'sthe nature of the
case,tort?contract?Marriage?...
Article 8 Lex fori shall apply to the determination on the nature
of foreign-related civil relations.
Step two: The Law of the Application of Law for Foreign-related
Civil Relations of the People’s Republic of China
Article 9 Foreign laws applicable to foreign-related civil
relations do not include the Law of the Application of Law of this
foreign country.
Direct Renvoi/Remission
Case
David(male,A's citizen)and Marry(female,B's citizen)got married in
B and moved to C after the marriage.David had a son Tom with his
ex-wife.Some years later David died in C.Tom sued to C's court for
the succession of David's legacy in C and the nullification of the
marriage between David and Marry.C's conflict rules regulate that
B's law should be applied in the case while according to B's
law,A's substantive law should be used.If C's court applies A's law
at last,how to define the court's decision?
Transmission C--B--A
Difficulties
Who is responsible to ascertain the provisions of the foreign
law?()
Article 10 Foreign laws applicable to foreign-related civil
relations shall be ascertained by the people’s court, arbitral
authority or administrative organ. If any party chooses the
applicable foreign laws, he shall provide the laws of this
country.
If foreign laws can not be ascertained or there are no provisions
in the laws of this country, the laws of the People’s Republic of
China shall apply.
Article 16 The laws at the locality of agency act shall apply to
agency, but the laws at the locality of agency relation shall apply
to the civil relations between the principal and the agent.The
parties concerned may choose the laws applicable to entrustment of
agency by agreement.
Article 17 The parties concerned may choose the laws applicable to
trust by agreement. If the parties do not choose, the laws at the
locality of the trust or of the fiduciary relation shall
apply.
Article 18 The parties concerned may choose the laws applicable to
arbitral agreement by agreement. If the parties do not choose, the
laws at the locality of the arbitral authority or of the
arbitration shall apply.
Reservation of the public order()
Article 5 If the application of foreign laws will damage the social
public interests of the People’s Republic of China, the laws of the
People’s Republic of China shall apply.
Article 150 (of GPoCL) The application of foreign laws or
international practice in accordance with the provisions of this
chapter shall not violate the public interest of the People's
Republic of China.
Article 266 If a party applies for execution of a legally effective
judgment or order made by a people's court and the party subject to
execution or its property is not within the territory of the
People's Republic of China, it may directly apply for recognition
and enforcement to the foreign court which has jurisdiction over
the case, or the people's court may, in accordance with the
relevant provisions of the international treaties concluded or
acceded to by China, or on the principle of reciprocity, request
recognition and enforcement by a foreign court.
If a party applies for execution of a legally effective arbitral
award made by an arbitration agency on foreign-related disputes of
the People's Republic of China and the party subject to execution
or its property is not within the territory of the People's
Republic of China, it may directly apply for recognition and
enforcement to the foreign court which has jurisdiction over the
case.
evasion of law()--change the point of contact deliberately in order
to avoid the application of the law which should be applied and
caused some legal effect.
A famous case:The divorce of a French Prince
Thanks!