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Notes on Private International Law (Chapters 1-6,10-1)+
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Main contents of private international law teaching
Chapter I Introduction to Private International Law
Chapter II Conflict Rules (1)
Chapter III Conflict Rules (II)
Chapter IV Subject of Private International Law
Chapter V Real Right
Chapter VI Creditor's Rights
Chapter VII Intellectual Property Rights
Chapter VIII Marriage and Family
Chapter IX Inheritance
Chapter X Interregional Conflicts of Laws
Chapter II XI International Commercial Arbitration and Litigation
Required reading regulations: L. Chapter 8 of General Principles of Civil Law "Legal Application of Foreign-related Civil Relations" and its judicial interpretation.
2. Relevant judicial interpretations of foreign-related economic contract law
3. The fourth part of the Civil Procedure Law "Special Provisions on Foreign-related Civil Litigation" and its judicial interpretation
4.1Arbitration Rules of China International Economic and Trade Arbitration Commission, which came into effect on May 6, 1998.
Requirements: Master basic concepts and principles. Focus on the first three chapters, and the remaining chapters focus on mastering the provisions of China's current laws and international development trends.
Chapter I Introduction to Private International Law
Section 1 Concept of Private International Law
I the concept of private international law
1, name of private international law P23-24
(A) the principle of distinction
(2) conflict of laws
(3) the place effect theory of law.
(D) Theory of application of foreign laws
(5) Foreign-related private law
(6) Private international law
2. Definition of private international law P 15
(1) The legal department adjusts foreign-related civil relations.
(2) Provide the sum of norms to adjust the conflicts between private laws of different countries.
(3) whether it should be defined from the perspective of the effectiveness of foreign law, that is, whether it should be under the jurisdiction of such a legal department as the effectiveness of foreign law.
(4) It is defined by enumerating the scope of private international law. Britain believes that private international law can be solved: 1. Jurisdiction 2. Application of the law. The sum of norms for recognizing and enforcing judgments of foreign courts.
(5) The viewpoint of this book is P 16, which is basically consistent with Li's viewpoint.
(6) Private international law is the sum of legal norms that directly or indirectly adjust foreign-related civil legal relations.
Pay attention to its two characteristics: 1, international. First, produced in international exchanges
B, beyond the scope of a country
2. Private law. On the division of private law.
Second, the object of adjustment of private international law P 1-5
Foreign-related civil legal relations in a broad sense.
Features:
L, on the premise of foreign-related non-governmental exchanges.
2. There are foreign factors, namely subject and object, and at least one legal fact is foreign.
3. Foreign-related civil legal relations in a broad sense include both general foreign-related civil legal relations and foreign-related commercial legal relations in western countries. Foreign countries should also understand it in a broad sense, including the meaning of other jurisdictions. But some people hold different opinions. It is believed that not all foreign-related civil legal relations will produce legal conflicts, but will involve the validity of foreign laws.
The object of adjustment of private international law? It refers to a wide range of civil legal relations with foreign factors that transcend the boundaries of a country or a jurisdiction in the process of international civil communication.
Three. Adjustment Method of Private International Law P7-8
(A) indirect adjustment method
Concept: the method of adjusting conflict norms or conflict laws.
Conflict description:
Adjustment characteristics under conflict norms
(2) Direct adjustment method
Uniform substantive law
Domestic substantive law
Characteristics of direct adjustment method
Four, several different conflicts of law
(i) Introduction to chapter 10 on interregional conflicts of laws.
(2) Legal interpersonal conflict: it is a conflict between laws applicable to people of different religions, races and even different classes within a country.
(3) Inter-temporal conflict of laws: it is the conflict between the application of the former law and the application of the latter law in civil relations caused by the differences between the old and new civil laws.
Verb (abbreviation of verb) Scope and norms of private international law P9- 15
Two understandings of the scope. The norms of private international law mainly include:
! Rules and regulations on the civil legal status of foreigners
2. Conflict norms
3, unified entity specification
4, domestic entity specification
5. International civil procedure norms
6, international commercial arbitration norms
Section 2 Sources of Private International Law
I. Meaning and characteristics
Meaning; The first is the origin in the real sense.
The second is the origin in the formal sense.
Features: 1, dual, with both domestic sources (domestic legislation and precedents) and international sources (international treaties and practices)
2. Theory is also an important source.
Second, the origin of private international law P 16-20
1, domestic legislation. A, casual style, b, special edition, special chapter c, code style
2. Domestic precedent.
3. International treaties. Uniform substantive law and uniform conflict law
4. International practice. Mandatory and arbitrary international practices. International practice of substantive law and conflict of laws.
5. theory.
Section 3 Nature of Private International Law
Dispute: an argument between international law or domestic law, procedural law or substantive law, public law or private law.
I international law and domestic law P24-26
Two viewpoints: the representative of universalism-internationalism school
A representative figure of the school of particularism-nationalism
dualism
Book view P26
Second, substantive law and procedural law.
Public law and private law. Mainly private law
Section IV Historical Development of Private International Law
First, the budding private international law (before 13c)
Roman law era, racial law era, territorial law era.
Second, 14C- 18C legal difference theory era P3 1-34
Requirements: representative figures, main works, main viewpoints, historical role (significance)
(A) the Italian theory of legal differences
Bartolus (bartolus)
(B) France's legal distinction theory
Du Molin's "Will Autonomy"
Kyntola (Argentina)
(C) Dutch legal distinction theory
Huber's "International comity Theory"
The new French school
Article 3 P45 of the French Civil Code
Three principles:
1, all residents living in French territory should abide by the public security law (that is, the territorial law).
French law applies to real estate, even if it belongs to foreigners.
3. The laws on personal status and capacity to enjoy rights apply to all French people, even if they live abroad.
Meaning:
1, the expansion of the role of private international law
2. The emergence of domestic legalists.
3. Establishment of written norms of private international law.
Three. 19c modern private international law
(A) American schools
Beauty; Comment on conflict of laws of the story P38-39.
English: Dicey has the right to speak P39-40.
He is the founder of Anglo-American private international law.
(b) German schools
Savigny's Location of Legal Relations laid the foundation of modern private international law (the father of modern private international law) p36-37.
(3) Italian and French schools P37-38
Mancini (1), nationality principle is nationality law.
2, the principle of sovereignty, public order.
3. The principle of freedom means autonomy.
Four. Contemporary private international law
(-) Anglo-American countries
Britain: Moris and Daisy abandoned the theory of acquired rights when they co-authored The Conflict of Laws in 1949.
Cheshier and North's Private International Law
The above two books are quite authoritative in Britain, and many cases decided by British courts are based on citing the above works as the basis for dealing with private international law issues.
United States: 1934 Bill's Restatement of Conflict Laws began to show the scene of a hundred schools of thought contending and various theories.
L, Cook's "ground method theory" P40
2. Cavers, Fuld, Reese, etc. Reece's second restatement of conflict of laws based on the principle of closest connection.
3. Currie's Theory of Government Interests P4 1
(2) continental European countries
1, France 1955 draft of private international law
2.1June 1989+1February 1989 was adopted in Switzerland. Three characteristics: 1, not limited to conflict norms, but also absorbed the views of common law, including the jurisdiction and norms of recognizing and enforcing foreign court judgments. 2. Take the principle of closest connection as the principle of legal choice. 3. Any foreign law designated by conflict norms, even if it has the nature of public law, shall not be excluded from its application only on this basis.
3. Austria 79. L and 1 come into effect, and the principle of closest connection in private international law is the overall highest guiding principle of legal choice.
4. Characteristics of German 86, 9. 1 Civil Law Enforcement Law. 1. A lot of space is devoted to the legal application of contract debts, and all foreign-related legal relations are adjusted by bilateral conflict norms. 3. Widely adopt the principle of closest connection. In all civil relations, renvoi is applicable. 5, reflect the principle of protecting the legitimate interests of vulnerable parties. Such as employees of consumers, and so on.
V new development of private international law in the international community
1, the adjustment scope of private international law is constantly expanding, and the content is also constantly enriched.
2. More and more attention has been paid to the study of various branches of private international law.
3. The convergence of private international law is increasingly obvious, and the comparative private international law is developing rapidly.
4. Influenced by the convergence of private international law, the reform of traditional conflict law and conflict law theory is deepening.
5. The domestic legislation of UNIDROIT is developing towards codification.
Legislative history of intransitive verbs in private international law P44-56
Please note the following points:
1, changes in the principle of choice of law in national legislation P47. 2. Bustamante code 3. Hague conference on private international law.
Seven. The History and Present Situation of Private International Law in China P56-6 1
1, Yonghui Law in Tang Dynasty 2, Law on the Application of Foreign-related Civil Laws in Taiwan Province Province 3, Main Contents of China Model Law on Private International Law.
Section 5 Basic Principles of Private International Law
First, the principle of national sovereignty.
Second, the principle of equality and mutual benefit.
Three. Abide by international treaties and refer to international practices.
Fourth, the principle of protecting the legitimate rights and interests of the parties.
Three. Principles of establishing a new international economic order
Section VI Research Methods and System of Private International Law P29
First, research methods.
(A) the historical method
(2) Comparative method
(3) Study the actual treatment methods in various countries.
(D) Establish the theory of private international law with China characteristics.
Second, the system
1. Civil law countries: general principles, property rights, intellectual property rights, creditor's rights, marriage and family, inheritance, nationality, domicile, civil legal status of foreigners and international civil litigation and arbitration procedures.
2. Anglo-American law: jurisdiction, choice of law and recognition and enforcement of foreign court judgments in foreign-related civil cases.
Thinking about the problem:
* 1. What is private international law? What do you think of the concept of private international law?
2. What is the object of adjustment of private international law? How to adjust?
3. What norms does private international law include? What is the relationship between these specifications?
4. What is the origin of private international law? What are the main contents and characteristics of various sources?
5. How should we recognize and treat private international law? What are the basic principles of private international law? What role does it play in developing China's foreign economic cooperation?
* 6. China's theory and practice of private international law? How to establish China's private international law system? What do you think about this?
Chapter II Conflict Rules (1)
Section 1 Legal Conflicts and Solutions
I. What is a conflict of laws?
A private international law relationship involves the laws of two or more countries, and the laws of the relevant countries are inconsistent in handling this legal relationship, which leads to different conclusions when applying the laws of different countries. This phenomenon is called conflict of laws.
Features:
L, laws involving different countries; 2. The laws and regulations of the countries involved are inconsistent; 3. The laws involved are likely to be used to solve the application problems of relevant laws.
Reasons for conflict of laws: P5-6
1, the direct reason is the existence of foreign-related factors in relevant legal relations;
2. The core reason is that the extraterritorial effects of a country's laws and foreign laws coexist in a legal relationship. Territorialism: It means that the laws of a country have effects on all people in its territory, whether domestic or foreigners, that is, territoriality.
Extraterritorial jurisdiction (personalism): refers to the fact that the laws of one's own country are applicable not only to nationals within one's own country, but also to nationals outside one's own country, that is, personal superiority.
Although a legal relationship has foreign relations, it does not necessarily lead to legal conflicts, such as Sino-foreign joint ventures and Sino-foreign cooperative enterprises.
3. The most fundamental reason is the conflict of interests of different countries, and the adoption of laws is a conflict of laws.
Second, the settlement of legal conflicts.
(1) Only domestic laws apply. It violates the principle of equality and mutual benefit between countries, and the exchanges between countries are interdependent. However, in modern society, there are also cases where only domestic laws are applicable. For example, Article 126 of the Contract Law stipulates that Sino-foreign joint ventures, Sino-foreign cooperation and cooperative exploration and development of natural resources are only applicable to China laws and will not cause legal conflicts. Is it in line with international practice?
First, all countries have this provision. B permanent sovereignty of all countries over natural resources. C the joint venture or cooperative enterprise is a legal person or enterprise in China, and its signing and performance are all in China.
(2) Signing international treaties or bilateral agreements directly stipulates the rights and obligations of the parties, which fundamentally avoids the possibility of legal conflicts.
(3) Adopt international practices.
(4) Apply foreign laws according to the provisions of domestic conflict norms (this is the most common and important method).
For example, Article 149 in Chapter 8 of the General Principles of Civil Law: The law of the decedent's domicile shall apply to the inheritance of movable property.
Why should foreign laws be applied?
Western countries study the theoretical problems of applying foreign laws, such as the theory of legal differences, the theory of international comity, the theory of legal relationship, the theory of acquired rights and so on.
How does China view the application of foreign laws? Does it conflict with the independence of legal rights? Our country does not study from theory, but from practical needs, including "practical needs theory" and "equality and mutual benefit theory"
1. Realistically speaking, in some cases, it is more favorable to apply foreign laws than domestic laws.
For example, the evolution of the application of inheritance law: domestic law-domicile law-domicile law at the time of death.
Example: China's ship collided with an Australian dock and collided with the Greek "Jade Emperor".
2. In some cases, only the application of foreign laws can solve the related problems. For example, China people buy two forests in the United States.
Real estate should be governed by real estate law, while foreign laws should be applied to solve problems. However, the law in China forbids buying and selling land.
3. Sometimes the application of foreign laws is based on the consideration that foreign countries also apply their own laws.
4. Foreign laws can be directly applied without violating national sovereignty, which is conducive to promoting national exchanges. Act according to the conflict norms of the country.
Under what circumstances should foreign laws be applied?
A. licenses based on domestic legislation;
B. restrictions based on international treaties;
C. based on the voluntary choice of both parties;
D, according to the relevant provisions of private international law.
Section 2 Concept, Structure and Types of Conflict Norms
I. Concept (conflict rules) P62
Indicate which country's legal norms should be applied to a foreign-related civil legal relationship. And the rules of law.
The application of law) and "the choice of legal rules". Features:
1, which only plays an indirect regulatory role. 2. If the specific rights and obligations of the parties are not directly stipulated, they must be combined with substantive law;
It may lead to the application of foreign laws. 4. There are both substantive and procedural conflicts.
Structure of conflict specification P63
It consists of scope and category (applicable law).
(1) Category: refers to the legal relationship adjusted by conflict norms. Every legal relationship in private international law may become the scope of conflict of laws.
(=) Attribution: refers to the settlement of legal relations adjusted by conflict rules. That is, a certain law to be applied.
Connection point: a factual factor that stipulates that the law should be applied to the legal relationship referred to in the scope.
Its significance:
A, from the formal point of view, the connection point is a medium or link that connects the legal relationship referred to in the conflict of laws with a certain area;
B, in essence, this kind of media or contact reflects that there is an inherent and essential connection or subordinate relationship between legal relations and the laws of a certain region. Such as "nationality" and "domicile"
Scope, subordination and connection point are exclusive concepts of private international law.
Applicable law: a proper term of private international law, which refers to the substantive law cited for conflict norms to determine the specific rights and obligations of the parties. P77
For example, "the law of the decedent's domicile is applicable to the inheritance of movable property", which is a constructive conflict norm between the two parties.
The scope is "chattel inheritance", foreign-related civil legal relations, and the system is "law of domicile at the time of death"
The connection point is "the place of residence at the time of death" and the applicable law is the applicable law.
What kind of law can be the applicable law?
A, forum law b, foreign laws related to the case c, uniform substantive law (including international conventions and international practices) d, laws related to the case selected by both parties.
Conflict Type Specification P66-69
According to the difference of connection points:
(-) Unilateral conflict rule
Example: "People's Republic of China (PRC) citizens who have settled abroad may be governed by the laws of the country where they have settled."
Bilateral conflict rules.
Example: Presumption belongs to "the law of the location of real estate applies to real estate"
(c) Optional conflict rules: (alternative conflict rules)
Unconditional is one of them. For example, the Austrian private law stipulates that "the way of marriage held abroad conforms to the personal laws of both parties to the marriage, but it is also effective to conform to the provisions of the place where the married woman is held."
Conditional restriction of choice
Example: 1898 Law The legal relationship between parents and children shall be in accordance with the national laws of the father; If there is no father, according to the mother's national law. "
"If the parties to a foreign-related contract have no choice, the laws of the country most closely related to the contract shall apply";
"The property of husband and wife shall be governed by the law expressly chosen by both parties or, in the absence of such agreement, by the law of personal influence at the time of marriage."
Overlapping conflict rules: (double conflict rules)
Article 2, paragraph 2, of The Hague Convention on Conflict of Laws and Jurisdiction on Divorce and Separation (1902) "No divorce request shall be filed unless there are grounds for divorce according to the laws of the husband and wife's home country and the law of the court."
If a legal relationship is strictly or leniently mastered, what kind of conflict norms should be formulated?
The combination of conflict norms and applicable law can solve the rights and obligations of the parties, and the role of conflict norms is to invoke applicable law.
Section III Several Main Genealogical Formulas