It is a concrete manifestation of the norms of private international law. The origin of private international law is dual, including both domestic statutory laws and precedents, as well as international treaties and international practices.
First, domestic statute law
The norms of private international law first appeared in domestic legislation. Up to now, domestic legislation is still the main source of private international law.
K different legislative models of domestic legislation on conflict of laws;
1, conflict norms scattered in relevant chapters of the Civil Code, 1804 Napoleonic Code.
2. Only the systematic conflict of laws norms are formulated in the form of special codes or separate regulations, and the earliest is the German Civil Law Enforcement Law 1896.
3. In the Civil Code or other codes, the norms of private international law are systematically stipulated in special clauses or chapters.
4. In different separate laws and regulations, applicable legal norms are stipulated for the foreign-related civil relations of the parties concerned.
Second, domestic precedent.
Precedent means that a judgment of the court has legal effect and can be used as the basis for hearing similar cases in the future. Civil law countries did not recognize precedent as the source of law earlier. Britain and the United States have always been dominated by precedent. Daisy 1896 on conflict of laws, Reece restatement of conflict of laws in the United States.
China's attitude towards precedent: China generally does not recognize precedent as the source of law, but in private international law, we should fully understand the role of precedent.
1, because in the field of international law, written law alone is not enough to meet the needs of judicial practice. When necessary, toothpaste allows the court to make up the blank of written law through precedent.
2. When the judgment of a case involves the laws of common law countries, it is even more necessary to directly quote their precedents as the basis of judgment and recognize their judgments based on precedents.
3. The principle and system of quick decision also need to be formulated through precedent.
The embodiment of precedent in China: Although China does not regard precedent as law, some replies or opinions from the Supreme People's Court or relevant departments of the central government once became the basis for handling similar cases.
Three. Basis of international treaties and international practices: If there are differences between the international treaties concluded or acceded to by People's Republic of China (PRC) and the civil laws of People's Republic of China (PRC), the provisions of the international treaties shall apply, except the provisions on which People's Republic of China (PRC) has declared reservations. Where there are no provisions in the laws of People's Republic of China (PRC) and international treaties concluded or acceded to by People's Republic of China (PRC), international practices can be applied.
Since 1,19th century, the international community has been committed to unifying conflict law, procedural law and substantive law. 2. International Conventions: International Conventions on Atmosphere and International Trade. The former has no active conflict norms in private international law, while the latter plays the role of unifying substantive norms in estimation. Fourthly, the general jurisprudence, principles and theories of private international law, and the relationship between private international law and public international law.
There are different views on whether private international law is domestic law or international law;
1, private international law is also international law.
2. Private international law is not international law, but domestic law.
3. At present, private international law is mainly domestic law, but it will continuously increase the components or factors of international law.
4. Private international law is between public international law and domestic law. The difference between private international law and domestic civil law 25 Basic principles of private international law 25
chapter two
I domestic legislative history of private international law
/kloc-after the second half of the 0/8th century, it began to enter the stage of "legislation of private international law".
In Europe, it was greatly influenced by the "international comity theory" of the Dutch school in the18th century. The Bavarian Code (1756) first stipulated the conflict norms in private international law, but the French Civil Code (1804) had the greatest influence.
1804 the characteristics of the French civil code:
1. In terms of personal law, the domicile law that has been implemented in Europe since the "principle of distinction" has been changed to the nationality law. 2. In some clauses, only the unilateral conflict norms stipulate what French law applies to.
3. Adopt the legislative method of providing substantive civil law norms in relevant chapters and relevant conflict norms. The new development of domestic legislation of private international law at the end of 19, that is, the implementation law of German civil law and Japanese law, is the representative of the legislative model of special conflict law with single regulation.
Second, the history of international legislation of private international law
Unified private international law should be understood in a broad sense, which includes the unification of traditional private international law and the international unification of substantive civil and commercial law.
The most effective and influential international organization for the unification of private international law is The Hague Conference on Private International Law, which founded the International Institute for the Unification of Private International Law in Rome.
Third, the theory of private international law.
1, Italian legal difference theory 1 1 Century bartolus
2. Charles Dumoulin's principle of party autonomy.
International comity theory of Holland 65438+ huber Three Principles in the 3rd and 7th century.
4. savigny's legal relationship theory was called "the father of modern private international law" in the19th century.
5. British acquired rights theory 18 th century daisy 6. Cook's theory of "local law" is a new development of contemporary private international law.
1, the scope and content of private international law are extensive and rich.
2. Formation of various branches of private international law.
3. The trend of convergence of private international law is strengthened.
4. Deepening of traditional conflict law and its theory.
The History of Private International Law in China: The third chapter begins in the Tang Dynasty.
1, the concept of the civil legal status of foreigners 52
2, the concept and significance of the principle of national treatment 53
3. The concept, characteristics, functions, classification and scope of application of the most-favored-nation treatment principle. The difference between it and the principle of national treatment 54 55
4. Exceptions to most-favoured-nation treatment 56
5. The civil legal status of the appointer in China (those rights enjoyed by foreigners in China according to law) 59 Chapter IV.
1, the concept and characteristics of conflict norms 62
2. Structure of conflict norms 63 *
3. Types of conflict norms 63 (mainly through examples)
4, the role of conflict norms in legislation 67*
5. What are the expressions of applicable law? What problems are solved separately? 68-69
6. The concept and significance of connection point 70* 7, and the softening treatment of connection point 7 1.
8. The concept of appraisal 7 1 Ogden v. Ogden was first put forward by Kahn and Badin.
9, the basis of identification 75
10, the elements of the initial question 76 were first put forward by Messio and Wenger.
1 1, the concept of interregional conflict of laws and its solutions 80 12, the method types of legal choice 83, Chapter 5.
1, the concept of counteraction. It is important to remember all kinds of fake examples.
2, the reason of the reaction 90-9 1
3, the development trend of renvoi system 93
4. China's attitude towards renvoi: exclusion.
5, the concept of public order and legislative methods 99 pages
6. Pay attention to the answer box when asking questions in public order.
7. Concept and elements of legal evasion, Bo vermont case 8. Two kinds of situations in which legal evasion is prohibited 108.
9. Provisions of China on Evasion of Laws 109
10, Concepts and Methods of Identifying Foreign Laws 109 Provisions on Identifying Foreign Laws in China 1 10
1 1, when foreign laws cannot be ascertained, the law11shall apply.
12, Two Misuses of Foreign Laws and Relevant Provisions in China
Chapter vi
1, the concept and significance of nationality 1 14
2. Resolution of nationality conflict 1 15* and relevant regulations of China *
3. Active conflict in residence and its causes 1 19 Principles and methods of solution 120.
4. The first paragraph of 12 1 page 12 is specified in quotation marks.
5. What kind of law should be applied to claim for the legal conflict of natural person's capacity 122?
6. Jurisdiction and application of law in reporting foreign-related disappearances and deaths 123 123
7. Limitations and exceptions of natural person's ability 124
8. China's legislation is applicable to the behavior of natural persons124 k.
9. Chapter VII 125 on the claim of foreigners' jurisdiction to declare the prohibition of production in China.
1, China's regulations on determining the nationality of legal persons 130
Words in quotation marks in the second and third paragraphs *
2. Legal person domicile claim 13 1
3. Resolution on Recognition of China as a Legal Person 133
4. Recognition procedures for foreign legal persons 133
5. China's recognition of foreign legal persons adopts: special recognition.
Chapter VIII
1, applicable law type required by legal form 138
2. The relationship between the principal and the agent is governed by legal creditor's rights 140.
3. The Hague agency law is governed by the rules of the Convention 145.
Article 5 (2) of the Convention
4. Scope of application and exceptions of lex situs150 * k.
Chapter 10
1, various opinions on the application of copyright law, patent law and trademark law
2, * Four Principles of the Paris Convention 168
3. Three Principles of Berne Convention 174
4. Unique content of universal copyright convention 176
5, *trips Agreement 182
Bankruptcy reorganization protection
1, * development stage of applicable law of contract 188
2. * Principles of Applicable Law to Contracts 189, Combined with Relevant Provisions of China; 3. Ways of specifying performance characteristics193; 4. Broad understanding of contract disputes; 5. Conditions for applying international practices.