Académique Documents
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Li Xiang
Object
The 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.
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?
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
Peoples 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.
Direct Renvoi/Remission
A(conflict rule)
B(conflict rule)
A(substantive law)
Transmission
A(conflict rule)
B(conflict rule)
C(substantive law)
Indirect Renvoi
A(conflict rule)
B(conflict rule)
A(substantive law)
C(conflict rule)
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 exwife.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
1. 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 peoples
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
Peoples 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.
Thanks!