国际私法英文版

Chapter oneIntroduction to Private International Law1. Regulative Object of Private International Law•Question 1: A company of Beijing with B company of Guangdong will sign a contract of sale of goods, which country’s law is applicable?•Question 2: If the parties in supposed question 1 are changed as A company of Beijing and B company of California State in US, what would be the applicable law then? •Question 3: Citizen A of China got married with Citizen B of US, what law would be subjected to then?Characteristic:①This kind of civil relationship is formed during international intercourse②This kind of civil relationship has one or more foreign elementssubject involving foreign element●object involving foreign element●content involving foreign element③What such civil relationship adjusts is the particular foreign civil relation2. Conflict of Laws2.1 Essence and productive conditionConflict of laws also named ‘rules of conflict’, which has distinctive meaning in private international law, and it refers to the difference in regulations of civil relationship involving civil law in two or more countries respectively, but it is required to apply these different regulations competitively, which caused the phenomenon conflicting each other on the law. In brief, conflict of laws means the conflict of applicable laws to the same civil relation involving the different civil laws of every respective country.①Civil legal systems of various countries are different each other.② A large number of civil contacts exist, a large number of international civil relations appear between various countries.③Various countries acknowledge foreigners enjoy the equal civil legal status in domestic state.④Based on practical requirements for dealing with civil and commercial relations among reciprocal countries justly, rationally, various countries acknowledge extraterritorial effect of foreign civil laws in domestic state or admit legal equality between domestic state and foreign state.2.2 Several different characteristics of conflict of laws2.2.1 Private interregional law2.2.2 Private interpersonal law2.2.3 Private intertemporal law3. Range and Definition of Private International Law3.1 Range of private international law①Different view②Range of private international law should contain the several norms as following:●legal norms on the status of foreigners in civil law●Conflict rules●Uniform substantive rules●International civil procedural norms andprocedural norms of international commercialarbitration3.2 Definition of private international lawPrivate international law is to regard foreign civil relation as regulative object, regard solving conflict of laws as the central task, regard conflict rules as the most basic norm, whilst including legal norms on the status of foreigners in civil law, and uniform substantive norms avoiding and removing conflict of laws, and international civil procedural norms and procedural norms of international commercial arbitration, which is an independent legal department.4. Sources of Private International Law4.1 Domestic legislationManifestation manner:●sporadic appearance type●special compiling and special chapter type●the code type4.2 Municipal jurisprudence4.3 International treaties4.4 International customs4.5 About doctrine as one of the sources of private international law5. The nature of Private International Law5.1 International law or domestic law?①School of international law②School of domestic law③Dualism schoolFrom the view at present, private international law primarily belongs to domestic law, but with the further development of international civil intercourse and the constant promotion of unitized sports of private international law, private international law will increase the composition or factor of international law gradually.5.2 Procedural law or substantive law?We think that private international law is composed of conflict rules, substantive norm and procedural norm, which is a synthesis of these three kinds of legal norms. Only emphasizing one side of them and denying another one or another two respects among them, or diametrically opposing to each other, which is unadvisable, not corresponding to reality either. So it is neither procedural law nor substantive law, has one kind of its own.5.3 Public law or private law?From the view of actual situation, we think that private international law has close contacts with domestic civil law. They all adjust social relations with characteristics of civil law. And private international law is the applicable law of domestic civil law. Also like the foregoing, the basic principles and systems of every national civil law are having direct influence on private international law, and many systems in private international law (Among them, especially like reservation system of public order) also were established to ensure realization of basic principle of domestic civil law. Therefore, though private international law is an independent legal department, it mainly still belongs to the category of private law.6. Basic Principle of Private International Law6.1 Sovereignty doctrine6.2 Principle of equality and mutual benefit6.3 Principle of observing international treaty and consulting international customs6.4 Principle of protecting the legitimate rights and interests of partiesPonder over following question:1. What is “conflict of laws”? Please state briefly the reason or condition why conflict of laws produce?2. State briefly several kinds of meanings of conflict of laws of different nature.3. State briefly the definition and the sources of private international law.4. Talk about the cognition for regulative object of private international law.5. Try discussing the nature of private international law.Chapter TwoHistory of Private International Law1. Private International Law at Sprouted Stage (before the 13th century)1.1 Period of Roman Law 1.2 Period of Racial Laws 1.3 Period of Territorial Laws2. Theory History of Private International Law2.1 Period of Theory of Statutes (or: Statute Theory) 2.1.1 Italian “Theory of Statutes”●About issue of jus ad rem, was applicable to territorial laws, i.e. lex situs.●About issue of persons, such as capability of civil rights of persons and capacity to act of persons which were applicable to personal laws, i.e. lex domicilii.,●About issue of behavior, was applicable to lex actus, i.e. locus regit actum doctrine.Innovation：●Could the statute of a civil-state be applicable to all people within it (including non-residents)?●Could the statute of a city state be applicable to its own residents outside the state?2.1.2 French “Theory of Statutes”达让特莱（D’Argentre，1519—1590）strict principle of territoriality●“All customs belong to substance”●“Statuta personalia” regarded as an exception of “statuta realia”●There has another kind “mixed rules” except “statuta personalia” and “statuta realia”,i.e. the same rule contains concurrently two respects of person and substance.2.1.3 Dutch “Theory of Statutes”2.2 Modern Science of Private International Law2.2.1 Story’s “Territorial Theory”斯托雷（Joseph Story 1779—1845）●V arious countries enjoy absolute sovereignty and right of jurisdiction, all people, substance, agreement concluded and behaviors engaged in their territories are restrained by this country’s law;●According to sovereignty doctrine, the l aw of any country can’t restrict persons and substances beyond its territory, namely, the law does not have extraterritorial effect;●Whether the foreign law could be applicable in domestic state should be in accordance with the stipulations of domestic law.2.2.2 Savigny’s “Sitz des Rechtsverhaltnisses” (or: “Sitz of Legal Relationship Theory”萨维尼（Savigny 1779—1861）Departed from the standpoint of universalism to internationalism, Savigny had criticized traditional “theory of statutes”, cons idered that the applicable laws which should be applied should only be the law of every place concerning foreign civil relations with its inherent “seat” according to itself characters. He had rounded territorial and extraterritorial effect issues, which w as talked volubly by the scholars of “theory of statutes”, and claimed to look on domestic law and foreign law equally, in order to achieve the following goal, i.e. we can apply to the same law and get an accordant verdict, no matter where the case was accepted and heard. The foundation of Savigny’s theory was, we should admit that “an international community among the mutual association nations” existed, and various conflict rules generally applicable all over the world existed too. Because in his view, each legal relation has its own seat like everyone with his (or her) own domicile. One’s domicile exists on a particular space, the seat of a legal relation exists on a particular space too. Since domestic laws and foreign laws are equal, so far as we can find out which country the seat of legal relation is, we can apply the law of this country directly, totally unnecessary to care about whether the law is domestic law or foreign law.●About personal relation, based on its place of domicile as the seat, applying lex domicilii [L, the law of the domicile].●About material relation, based on the place of situation of the thing as the seat, applying lex situs.●About contractual relation, according to will of the parties to determine the seat, if there is no c lear and definite declaration of will, then based on the place of a contract’s performance as the seat, applying lex loci contractus [L, OE, the law of the place where the contract is to be governed, or place of its performance].2.2.3 Mancini’s “Doctrine of Nationality Laws”孟西尼（Mancini，1817—1888）“Nationality as the Foundation of the Law of Nations”●Nationality principle ──principle of national law.●The rule of autonomy of the will ──freedom principle.●Reserve principle of public order ──sovereignty principle.2.2.4 Dicey’s “Doctrine of V ested Rights”戴西（Dicey，1835—1922）On one hand, Dicey’s theory adhered to strict territorial principle, disavowed extraterritorial effect of foreign law; On the other hand, he attempted to make the vested rights and interests according to foreign law protected, which had obviously reflected benefit and requirement of the British colonialist with numerous colonies.2.3 Contemporary Science of PrivateInternational Law2.3.1 Cook’s “Local Law Theory”库克（Cook，1873—1943）The court is not suitable to apply foreign law, but national law only forever. However,proceeding from the convenience of public interests and judicial practice, the court can be suitable to apply foreign law, which combines the rules of foreign law into the national law only.2.3.2 Currie’s “Governmental Interests Analysis”柯里（Currie，1912—1965）Currie proposed that the best method of solving conflict of laws was to analyze “governmental interests”. If only one count ry has legitimate interests, applicable to the law of this country; If there are legitimate interests in two countries, and when a country among them is the country of the court, covered by lex fori unconditionally; If two foreign country have legitimate interests, and the country of the court is the third country which has illegitimate interests, can not only be covered by lex fori, but also the applicable law the court should think in accordance with discretion.2.3.3 Reese’s “Doctrine of the Most Significant Relationship”里斯(Reese)Reese wrote with a kind of more objective attitude: “‘Restatement, Second, Conflict of Laws’ has been written from the angle of a kind of neutral court that had no interests to protect for, it only seeks to be applicab le to the most appropriate law.” On the basis of such so-called neutral court, Reese had proposed a concept of “the most significant relationship” according to the idea of “center of gravity” and “grouping of contacts”, maintained “the law of proximate con nection ground” should be applicable to the court, and had run through this kind of thought into “Restatement, Second, Conflict of Laws”.Fuld, together with “Doctrine of the Most Significant Relationship”3. Historical Development of Chinese Private International Law3.1 Legislative History of Chinese Private International Law①Legislative relic of ancient private international law of China②Abnormal development of modern private international law of China③Legislative survey of private international law of new China3.2 The Development of Chinese Science of Private International Law①Science of private international law of old China②Science of private international law of new China4. Legislative History of PrivateInternational Law4.1 Domestic Legislative History4.2 International Legislative HistoryPonder over following question:1. State briefly “theory of statutes”.2. State briefly respective meanings of “Sitz des Rechtsverhaltnisses”, “Doctrine of Nationality Laws”, “Comitas Gentium” and “Doctrine of the Most Significant Relationship”.3. State briefly some influential international organizations which were engaged in uniform private international law movement.。