(A) the way to solve the interstate conflict of laws
From the perspective of conflict law, the main ways adopted by the United States are: there is no strict distinction between interregional private law and private international law, and the norms of state courts to solve interstate legal conflicts are basically the same as those to solve international legal conflicts. Of course, some restrictive clauses in the Constitution must be observed when solving interstate legal conflicts, but the biggest feature of American conflict law is that its basic rules are applicable to both interstate legal conflicts and international legal conflicts. As pointed out in the Second Restatement of Conflict Laws of the United States, under normal circumstances, the principles defined in this restatement are applicable to private international law cases with multinational factors and also to conflict cases between domestic countries.
(b) Constitutional restrictions on interstate conflict laws
As mentioned above, the interstate conflicts of laws in the United States are mainly solved by States according to their own interstate conflict laws. However, in order to ensure the normal and orderly domestic civil and commercial exchanges, the constitutional restrictions on interregional conflict laws in the United States are also very prominent, mainly including the following rules:
1. Complete sincerity and trust Article 4, paragraph 3, of the U.S. Federal Constitution stipulates that each state should be full of sincerity and trust in the public decrees, records and judicial procedures of other states. This clause requires that judgments made by other state courts should not be examined on their substance, but should be regarded as valid judgments. As long as the court has jurisdiction, its judgment should also be fully trusted and recognized. This provision ensures that a valid judgment of a state can be recognized and enforced anywhere in the country.
2. Citizens of all states are treated equally. Article 4, paragraph 2, of the United States Federal Constitution stipulates that citizens of all states enjoy the privileges and immunities of citizens of all states. "States shall not refuse to give equal legal protection to anyone within their jurisdiction. This provision provides a constitutional guarantee for equal treatment among citizens of all countries.
3. The due process amendment to Law 14 of the United States Federal Constitution stipulates that no state may enact or enforce laws that deprive American citizens of privileges or immunities, and no one may lose his life, freedom or property without due process. Due process requires "basic fairness". If there is no reasonable connection between the forum and the parties or litigation, it is basically unfair to apply the forum law, because this result is not foreseen and expected by the parties. This clause plays a major role in restricting the choice of law, but this role is only passive, not active. It does not require a country to apply a certain law, but only requires it not to choose the law of a jurisdiction that has no significant connection with the case in order to achieve fairness and substantive justice.
(3) norms of jurisdiction division
(A) the way to solve the interstate conflict of laws
From the perspective of conflict law, the main ways adopted by the United States are: there is no strict distinction between interregional private law and private international law, and the norms of state courts to solve interstate legal conflicts are basically the same as those to solve international legal conflicts. Of course, some restrictive clauses in the Constitution must be observed when solving interstate legal conflicts, but the biggest feature of American conflict law is that its basic rules are applicable to both interstate legal conflicts and international legal conflicts. As pointed out in the Second Restatement of Conflict Laws of the United States, under normal circumstances, the principles defined in this restatement are applicable to private international law cases with multinational factors and also to conflict cases between domestic countries.
From the way of unifying substantive law, the United States adopts the federal legislature to formulate a unified substantive law, which is adopted by the States, or similar substantive law is adopted by the States, and the two ways are combined to solve its interstate legal conflicts. As far as the former is concerned, since19th century, American federal legislation has become an important way to unify its laws. For example, the Interstate Commercial Law of 1877 and the Sherman Act of 1890 are laws formulated by federal agencies and implemented in the United States. Today, laws and regulations issued by federal agencies are still one of the main sources of legal unification in the United States. However, as a federal country, the US Constitution clearly stipulates the scope of federal legislative power. All the unlisted residual powers belong to the states, and most of the laws of private law belong to the legislative jurisdiction of the states. Therefore, it is far from being able to solve the interstate legal conflicts only by the federal legislature to formulate a unified substantive law. In order to solve this problem, the United States adopts the latter unification method more frequently and widely, that is, on the basis of the "model laws" provided by some official, semi-official or non-governmental organizations with no legal effect, the legislatures of various States adopt the same or similar substantive laws, thus realizing the unification of laws. The practice in this field in the United States is outstanding, among which the National Committee of Commissioners for the Unification of State Laws, american law institute, American Bar Association and other professional organizations have played an important role. The widely used Uniform Commercial Code and other texts belong to the "model laws" provided by these organizations. This way undoubtedly accelerated the process of legal unification in the United States, expanded the scope of legal unification, and promoted the settlement of interregional legal conflicts.
(b) Constitutional restrictions on interstate conflict laws
As mentioned above, the interstate conflicts of laws in the United States are mainly solved by States according to their own interstate conflict laws. However, in order to ensure the normal and orderly domestic civil and commercial exchanges, the constitutional restrictions on interregional conflict laws in the United States are also very prominent, mainly including the following rules:
1. Complete sincerity and trust Article 4, paragraph 3, of the U.S. Federal Constitution stipulates that each state should be full of sincerity and trust in the public decrees, records and judicial procedures of other states. This clause requires that judgments made by other state courts should not be examined on their substance, but should be regarded as valid judgments. As long as the court has jurisdiction, its judgment should also be fully trusted and recognized. This provision ensures that a valid judgment of a state can be recognized and enforced anywhere in the country.
2. Citizens of all states are treated equally. Article 4, paragraph 2, of the United States Federal Constitution stipulates that citizens of all states enjoy the privileges and immunities of citizens of all states. "States shall not refuse to give equal legal protection to anyone within their jurisdiction. This provision provides a constitutional guarantee for equal treatment among citizens of all countries.
3. The due process amendment to Law 14 of the United States Federal Constitution stipulates that no state may enact or enforce laws that deprive American citizens of privileges or immunities, and no one may lose his life, freedom or property without due process. Due process requires "basic fairness". If there is no reasonable connection between the forum and the parties or litigation, it is basically unfair to apply the forum law, because this result is not foreseen and expected by the parties. This clause plays a major role in restricting the choice of law, but this role is only passive, not active. It does not require a country to apply a certain law, but only requires it not to choose the law of a jurisdiction that has no significant connection with the case in order to achieve fairness and substantive justice.
(3) norms of jurisdiction division
The regional legal system in the United States is a typical constitutional model, that is, the rights and legal status of States and their relations with each other and with the Federation are clearly stipulated by the Constitution. The amendment to Article 10 of the Federal Constitution of the United States stipulates that all powers not granted to the central government or prohibited from being exercised by the states in this Constitution shall be reserved by the states or people. The Federal Constitution clearly divides legislative jurisdiction and judicial jurisdiction. As for the former, Article 1, Item 8 of the Federal Constitution stipulates that except bankruptcy law, maritime affairs, patents and copyrights, other private law matters belong to the legislative authority of each state. This determines that the conflict laws of American States cannot have jurisdiction over the civil cases of the above-mentioned American States, and the American Constitution distinguishes them according to the standards of federal affairs and state affairs. The main federal issues are: (1) federal legal issues. Cases concerning common law and equity as stipulated in Article 3 of Section 1 of the United States Federal Constitution. Cases based on the US Constitution, laws and treaties concluded or to be concluded under the authorization of the United States fall into this category. (2) Cases in which the Federation or the State is a party. According to the United States, the Supreme Court has the jurisdiction of first instance over any case in which the state is a party or litigation between the state and the federal government. (3) Civil litigation in different states.
Whether the norms of jurisdiction, especially legislative jurisdiction, belong to the scope of interregional conflict law is still inconclusive, but it is undeniable that the norms of jurisdiction, especially legislative jurisdiction, not only affect the emergence of interregional conflict law, but also limit the scope of interregional conflict law, which has been fully proved by many American cases. It can be said that jurisdiction norm is a legal means to eliminate or partially eliminate interregional conflict of laws or interregional conflict laws, so it is necessary to discuss it.
(d) The application of conflict norms in the conflict law between States.
1. Determination of the connection point of personal law The United States takes domicile as the connection point to determine personal law, regardless of interstate or international legal conflicts. Practice has proved that it is convenient and feasible for the United States, a multi-jurisdictional country with great freedom of population migration and settlement, to determine personal laws in the past. Concluding remarks
The interregional conflict of laws in China has its particularity and complexity, which is not found in any country with complicated jurisdiction in the world. Whether this problem can be properly solved in time has become a key and urgent issue to realize the concept of "one country, two systems" and complete the great cause of reunification. If we can seriously study the relevant legislation and practical experience of the United States, which is at the core of the development of conflict law today, and combine with the actual situation in China, it will undoubtedly greatly accelerate the pace of solving interregional conflict of laws in China.
Reference micro-public: hongjingusbar