Conflict norm
[case]
1999165438+1On the afternoon of October 20th, Chen Qiang, a university employee, was knocked down by Jack, a foreign student who overtook him from behind, when he turned right by bike on campus. Upon examination, Chen Qiang's right inner ankle was bruised and the front wheel of the bicycle was damaged, resulting in economic loss of about 1.40 yuan. The school mediated for both parties, but both parties failed to reach an agreement on the amount of compensation that Jack should pay to Chen Qiang. So Chen Qiang sued the local people's court. The court accepted the case.
[question]
1. How should the court apply the law to this case?
2. If both parties to this case are foreigners, how should the court apply the law?
[analysis]
1. In this case, the defendant Jack's behavior constitutes infringement. According to the principle that the law of the place of infringement is applicable to infringement, the law of the place of infringement should be the applicable law. In this case, the place where the infringement occurred and the place where the damage occurred were both in China, and the court should apply the laws of China. China's "General Principles of Civil Law" also has provisions on this.
2. According to the provisions of Article 146 1 of the General Principles of Civil Law: "The law of the place where the infringement occurred shall apply to the compensation for the damage caused by the infringement. If both parties have the same nationality or domicile in the same country, the laws of the parties' country or domicile can also be used. "Therefore, if both parties to this case are foreigners and both have the same nationality or domicile in the same country, their nationality law or domicile law can be applied; If the two parties have different nationalities or have different residences in the same country, the law of the place where the infringement occurred shall apply.
Application of conflict norms
[case]
A British citizen made seven wills before his death, including 1 will and six appendices. The will and two appendices are made in the form of Belgian substantive law, while the other four appendices are not made in this form, but they are in line with the provisions of English wills law. According to British law, A's residence at the time of his death was in Belgium, while according to Belgian law, foreigners must obtain government permission to settle in Belgium, and A's residence at the time of his death was still in Britain, because this was to obtain such permission. The question that British courts need to solve is: Is the will made by British citizens valid?
The British judge who tried the case solved the above problems by applying Belgian law under the guidance of English conflict law, and admitted that the will and two appendices made according to Belgian law were valid in form. But at the same time, it is pointed out that British judges should apply the law like Belgian judges when trying this case. Since the Belgian conflict law stipulates that "the validity of the will made by foreigners who have not legally established their domicile in Belgium shall be determined according to the domestic laws of the parties concerned", Belgian judges will apply the British initiative to determine the validity of the remaining four appendices. Therefore, the British judge will finally apply English law and determine that the other four appendices are also valid in form.
[question]
1. In this case, when the British conflict of laws rules point to Belgian law, do British judges apply Belgian substantive law or conflict of laws?
2. Is it reasonable for British judges to apply the law? Why?
[analysis]
1. This is the earliest case of renvoi adopted by English courts. The so-called renvoi means that for a foreign-related civil relationship, country A (the country where the court is located) takes the law of country B as the applicable law under the guidance of its own conflict norms, but according to the conflict law of country B, country A should be the applicable law, and as a result, country A decides the case according to the law of country B.
In this case, when determining the validity of the survivor and the two appendices, it is based on Belgian substantive law; In determining the validity of the other four appendices, British judges applied Belgian conflict norms.
2. Different countries hold different attitudes towards renvoi in legislation and practice. The purpose of applying Belgian conflict rules by British judges is to avoid the harsh stipulation that the formal elements of a will can only be determined according to the last residence of the testator, so as to confirm the formal effect of a will that reflects the wishes of the parties as much as possible. At that time, European countries adjacent to Britain stipulated that the formal requirements of a will could be based on the personal law of the testator (including domestic law and domicile law) or the law of the place where the will was made. So from this perspective, the practice of British judges should be reasonable.
[case]
W is an American resident, 1956. During his stay in Saudi Arabia, his car was knocked down by a truck driven by Z, an employee of American oil company, and W was seriously injured. Later, W sued in new york, where the American oil company obtained the business license, and asked the court to order the American oil company to make tort compensation. According to the conflict norms of "Tort Law Applicable to Tort", the court of first instance decided that Saudi Arabian law was applicable to this case, and asked the parties to provide and prove relevant Saudi Arabian laws. Therefore, the plaintiff failed to provide or prove the Saudi Arabian law supporting his claim, and the defendant failed to provide or prove the Saudi Arabian law supporting his defense. The court finally dismissed the lawsuit on the grounds that the plaintiff's claim was insufficient. The plaintiff refused to accept the appeal.
[question]
1. What is the recognition of foreign law? How many ways can foreign laws be determined?
2. When foreign laws are unclear, how to solve the problem of law application?
[analysis]
1. The determination of foreign law, also known as the determination of foreign law, refers to how to find out the existence and content of foreign law when the court of a country designates the application of foreign law according to its own conflict norms.
Because countries have different opinions on whether foreign laws are facts or laws, the methods of identifying foreign laws can be roughly divided into the following three categories:
(1) Taking foreign laws as facts, the parties shall provide evidence to prove it;
(2) Foreign laws are regarded as laws, and judges are responsible for finding out;
(3) Foreign laws are basically regarded as laws. In principle, judges are responsible for finding out, and if necessary, they can also ask the parties for assistance.
2. Countries have different theories and practices on how to solve the problem of law application when foreign laws are unclear. However, the legislation and practice of various countries mainly adopt the following two methods to solve it:
(1) Replace the applicable foreign law with the law of the forum;
(2) Rejecting the claim or defense.
The subject of private international law
[case]
British woman A and French woman B( 19 years old) got married in England, but their parents knew nothing about it. After the marriage, B's parents took B back to France and filed a lawsuit in France, demanding that the marriage be declared invalid. The French court ruled that the marriage was invalid according to the national law that "men are under 25 years old and women are under 2 1 year old, and they cannot get married without their parents' consent". Later, the two sides got married separately in their respective countries. But two years later, A's British husband C filed a lawsuit, because the marriage of A and B was not declared invalid or dissolved for any reason in English law, so he asked the court to decide that the marriage of C and A was dissolved. On this basis, the British court decided to dissolve the marriage relationship between A and C. The reason is that if the national law is the national law of Party B, and B does not have the ability to enter into marriage, the French court ruled that the marriage between A and B was invalid; However, according to English law, that is, according to the law of domicile and the law of marriage place, B has full capacity to enter into marriage, so the English court ruled that the marriage between A and B was valid, thus dissolving the marriage between A and C.
[question]
1. Which country's laws should be applied to determine the capacity of the parties?
2. What exceptions do national laws provide for determining the capacity of the parties?
3. What provisions do our laws make on the capacity of the parties?
[analysis]
1. Because the capacity of a natural person is directly related to his identity, the identity of a natural person includes not only his natural condition, such as whether he is an adult or not, but also his legal status, such as whether he is married or not. Therefore, it is generally advocated to solve the legal conflict of natural person's ability according to the personal law of the parties, but the understanding of personal law is different. For example, civil law countries refer to the domestic laws of the parties, while common law countries refer to the laws of the parties' domicile. Therefore, in this case, the courts in Britain and France have different judgments.
2. With the development of international trade relations and exchanges, in order to protect the counterpart or the third party from losses due to ignorance of their personal laws, and to protect the stability and safety of commercial activities, countries still have the following exceptions or restrictions when applying the conflict rule that the capacity of natural persons depends on their personal laws:
(1) Generally speaking, the personal law of the parties does not apply to the capacity for real estate behavior and the capacity for tort liability, and the law of the place where the property is located and the law of the place where the tort is committed apply respectively.
(2) The law of the place of business conduct can also be applied to the capacity of the parties involved in business activities, that is, if the parties involved in business activities are incompetent according to the personal law but competent according to the law of the place of business conduct, they shall be deemed to be competent.
3. Article 143 of China's General Principles of Civil Law stipulates: "China citizens who settle abroad may apply the laws of the country of residence with the same civil capacity." Supplementary provisions on judicial interpretation in the Supreme People's Court are as follows:
(1) The civil capacity of China people and China citizens who have settled abroad shall be governed by the laws of our country; The laws of the country of residence can be applied to things done in the country of residence.
(2) Foreigners who engage in civil activities within the territory of China and have no capacity for civil conduct according to their own laws are deemed to have capacity for civil conduct.
(3) The capacity for civil conduct of stateless persons is generally governed by the laws of the country where they live; If you haven't settled down, you will use the laws of your place of residence.
Foreign real right
[case]
The plaintiff is a bank operating in the cities of country A and country B in the UK, and the defendant is a married woman living in the UK. The plaintiff and the defendant reached an agreement in Britain: the defendant agreed to mortgage the plaintiff's land in city A, country A, as a guarantee for the plaintiff's bank loan to her husband; At the same time, the defendant entrusted a person living in City A of Country A to handle mortgage-related matters on his behalf. According to the law of country A, the defendant cannot reach such an agreement. After that, the plaintiff filed a lawsuit in the English court, demanding that the defendant's obligations under the above agreement be enforced according to the provisions of English law on specific performance (referring to the equitable compensation given to the plaintiff by the court to enforce its obligations under the contract). The court ruled that the defendant should bear legal responsibility, because according to the law of the place where the subject matter (land) of the contractual relationship between the two parties is located, the defendant could not conclude such a contract, so the agreement between the two parties was invalid.
[question]
1. Do you think the English courts have jurisdiction over this case? What is the basis?
2. In this case, what law does the court apply to the contracting capacity of real estate? Why?
[analysis]
1. In this case, the English courts have jurisdiction over this case. Due to the litigation of contract disputes, countries all over the world generally adopt two signs of contract boundary and contract performance to determine international civil jurisdiction. In this case, the contract between the original defendant and the defendant was concluded in England, and the defendant's domicile was also in England. The plaintiff filed a lawsuit based on the mortgage contract, so the English court has jurisdiction over this case.
2. In this case, the court applied Law A to the contracting capacity of real estate. Because of the capacity of the parties in real right, countries in civil law system usually solve it according to general capacity, that is, the personal law of the parties is applied; In common law countries, the capacity of the parties is mainly solved by movable property and immovable property respectively, and the capacity of immovable property is changed to the law of the place where the property is located. In this case, the law where the object is located is the law of the country.
Foreign intellectual property rights
[case]
On August 1986, a Japanese company submitted a patent application for the invention of "myopia orthosis" to the Chinese Patent Office. The patent application was entrusted to Shanghai Patent Office by a Japanese company. The filing date is 1 986 August 1, the application number is 86 106540. 1, and the priority date is1985 August1,jp142475/.
Upon examination by the China Patent Office, the patent application was granted a patent right with the date of authorization of1June 1992 10 and the patent number of 86 10654 1, which was published in1September 23, 1992.
[question]
1. According to the relevant provisions of China's patent law, can the above-mentioned Japanese enterprises directly apply to the China Patent Office for patents?
2. If the above-mentioned Japanese enterprises have business offices in China, can they directly apply to the Chinese Patent Office according to the relevant provisions of the Paris Convention? What is the basis?
[analysis]
1. According to the provisions of Articles 18 and 19 of China's Patent Law: "If a foreigner, foreign enterprise or other foreign organization who has no habitual residence or business office in China applies for a patent in China, it shall be handled in accordance with the agreement signed between his country and China or the international treaty to which * * * is a party, or in accordance with the principle of reciprocity." It also stipulates that if such foreigners apply for patents or handle other patent affairs in China, "they shall entrust patent agencies designated by People's Republic of China (PRC) and the State Council to handle them". Therefore, in this case, Japanese enterprises cannot directly file a patent application with the Chinese Patent Office, but can only entrust a patent agency designated by the State Council to apply for a patent according to the provisions of the Patent Law of China.
2. According to the "national treatment principle" stipulated in Article 2 of the Paris Convention, in the protection of industrial property rights, "nationals of the member countries of the Convention, regardless of whether they have domicile or business office in the country, shall enjoy all kinds of benefits currently or in the future granted to their nationals by their respective laws in the territory of the member countries. Even citizens who are not members of the convention can enjoy the same treatment as nationals of member States of the convention as long as they have a residence or a real and effective industrial and commercial office in any member state of the convention. " According to this principle, if the above-mentioned Japanese enterprises have business offices in China, they can directly file a patent application with the Chinese Patent Office in accordance with the provisions of the Paris Convention. However, China made a reservation when it joined the Paris Convention, and China's current patent law adopts conditional national treatment. Therefore, Japanese enterprises must entrust specialized agencies to handle their patent applications according to the provisions of China's patent law.
contract debt
[case]
Company A of country A entrusts company B of country B to tow platform B of company A from Louisiana to Italy with tugboat A of company B. The jurisdiction clause contained in the contract is: "Any dispute arising shall be tried by the court in London." On the fourth day after towing, the rig was hit by heavy rain in the international waters of the Gulf of Mexico, resulting in the fracture of the rig bracket and serious damage to the rig. According to the instructions of company A, tugboat A took the damaged rig to SaPAM Port in Florida for refuge. At the request of company A, tugboat A was detained in Sapam port and forced to provide bail of $3.5 million. Later, Company A ignored the clause in the agreement that was under the jurisdiction of the London court and sued Company B in Florida, accusing tugboat Company A of negligence and breach of contract, demanding compensation of $3.5 million. Company B counterclaimed Company A in the High Court of London, demanding that it pay liquidated damages and rescue remuneration. The English court accepted the expanded jurisdiction and declared its jurisdiction to hear the case.
In the trial of this case, the English court presumed the application of English law, on the basis that both parties chose to be tried by the London court.
[question]
1. Is autonomy of will explicit or implicit in this case? What's the difference between them?
2. Does China law recognize autonomy of will?
[analysis]
1. In this case, autonomy of will is implicit. Because when expressing autonomy of will, the parties must clearly point out the applicable law; In implied autonomy, the parties only make the court of jurisdiction, and do not directly specify the applicable law, but the court of jurisdiction has the implied meaning of replacing the court as the applicable law.
2. According to Article 135 of the General Principles of Civil Law and Article 126 of the Contract Law, the parties to a foreign-related contract can choose the applicable law (unless otherwise stipulated by law); If the parties choose the law, the law of the country most closely related to the contract shall apply. This shows that in the field of foreign-related contracts, China, like most countries in the world, takes the principle of party autonomy as the first principle to determine the applicable law of foreign-related contracts. However, in the second paragraph of Article 2 of the Supreme People's Court's Answers on the Application of Foreign-related Economic Contract Law, it is clearly stipulated that "the legal choice of the parties must be clear", thus excluding implied autonomy. At present, although China's foreign-related economic contract law has been abolished, the Supreme People's Court's judicial interpretation still has guiding significance.
[case]
Plaintiff A (wife) and defendant B (husband) got married in country A in 19 18, and lived together in country A for 15 years, during which they raised two children. 1933, the defendant abandoned his wife and children and went to country B alone. On the way, he got a divorce judgment in country C and married another woman. 1935, the plaintiff came to Dingzhou in country B from country A and reached a separation agreement with the defendant in Dingzhou. The two sides agreed in the agreement that the defendant would give the plaintiff 80 pounds a month to maintain the living expenses of the plaintiff and his children; A wife (plaintiff) may not bring a lawsuit to any relevant authority on the grounds that her husband (defendant) is divorced or remarried. Subsequently, the plaintiff returned to country A and continued to raise children in country A, but the defendant never paid the living expenses as agreed. Therefore, the plaintiff filed a lawsuit of separation with the court of country A on 1936 for the defendant's adultery. 1938, the court of country a ruled that the defendant should pay the living expenses to the plaintiff.
However, because the defendant was not in country A, the judgment of the court in country A failed to take effect. The plaintiff then filed a lawsuit in Dingzhou Court of Country B with 1947, requesting to obtain the money due from the defendant according to the separation agreement reached by both parties 1935. The defendant argued that the plaintiff's lawsuit in country A had invalidated the agreement of 1935, thus terminating the plaintiff's right to receive alimony according to the agreement. Dingzhou District Court held that since the parties to the contract did not choose the applicable law, the law of the place where the contract was concluded should be applied. The separation agreement was established in Dingzhou, so Dingzhou law should be used. According to Dingzhou law, the plaintiff filed a lawsuit in country A, and obtained the award of temporary payment, which invalidated the separation agreement between the two parties at 1935. Therefore, the local court supported the defendant's defense and rejected the plaintiff's claim. The plaintiff refused to accept the appeal. The court of second instance upheld the original judgment. The plaintiff continued to appeal to Dingzhou Court of Appeal.
1954 When Dingzhou Court of Appeal tried this case, Judge Fuld advocated that the law most closely related to this case should be applied instead of the law of the place where the contract was concluded. He believed that this case was most closely related to country A. For example, the two parties who entered into the separation agreement were citizens of country A, married and had children in country A, and lived together in country A for 15 years. As for Dingzhou, the relationship with this case is only the place where the separation agreement was concluded. This factor is purely accidental. Accordingly, Dingzhou Court of Appeal finally tried the case with the law of country A as the applicable law according to the principle of closest connection. According to the law of country A, after the parties conclude a separation agreement, the main responsibilities of the husband and father of country A will not automatically expire because of the wife's lawsuit; The defendant (husband) should pay alimony to the plaintiff and the children abandoned in country A, so Dingzhou Court of Appeal overturned the judgment of Shen Yuan court according to the laws of country A and supported the plaintiff's claim.
[question]
1. What is the closest relationship principle?
2. What is the biggest feature of the most significant relationship principle?
3. Dingzhou is the place where the separation agreement is concluded, but why is the place with the closest connection country A?
[analysis]
1. The principle of closest connection means that when a case is in dispute, if the parties have not agreed on the applicable law, the law of the country with the closest connection to the case shall be applied as the applicable law.
2. The most important feature of the principle of closest connection lies in its flexibility, and the corresponding judges have greater discretion. In private international law cases, the legal facts and actions of the parties often occur or are completed in different countries or jurisdictions, and they can be linked with many countries. Taking the law of any country as the applicable law, we can find out some reasons. Which one or several are most closely related, there is no clear and unchangeable law, and it depends on the judge's discretion, so the final applicable law has great flexibility.
3. Dingzhou is the place where the separation agreement was concluded, but the separation agreement did not adopt any unique elements in Dingzhou's laws or customs. Dingzhou has nothing to do with the conclusion or dissolution of the marriage relationship, the root cause of the dispute between the two parties. Country B is also not the nationality country of both parties. Country A is the nationality country of both parties, where they got married and where their children were born, and they lived together for 15 years. It can be seen that the root of the dispute in this case occurred in country A, which is the closest contact place.