Presentation on theme: "Chapter 12 Private international law Section one Summary Section two Rule of conflict Section three Civil legal relation concerning foreign affairs is."— Presentation transcript:
Chapter 12 Private international law Section one Summary Section two Rule of conflict Section three Civil legal relation concerning foreign affairs is applicable to Section four International civil action and arbitrating internationally and civilly
Section one Private international law summary 1, Private international law a law department Regard civil legal relation concerning foreign affairs as the target of adjusting Regard solving the legal conflict as the central task Regard rule of conflict as the most basic norm
2, the adjustment target of the private international law a civil legal relation concerning foreign affairs " concerning foreign affairs " here does not only refer to foreign country, but refer to the law concerning foreign affairs land, there are a unique legal system and area of the independent judicial power.
3, the civil legal relations concerning foreign affairs Anyone with one of the following factors ， a, the subject b, an object c, juristic fact Form the civil legal relation concerning foreign affairs
4, private international law adjustment method Direct adjustment method Indirect adjustment method
5, the sources of private international law Including the following four respects: a 、 internal legislation b 、 domestic legal precedent c 、 international treaty d 、 international practice
Section two :Rule of conflict There are the following characteristics in the rule of conflict ： a, does not stipulate the party's right and obligation directly b, different from the norm of the procedure too to different from entity's norm C, range is and two major parts
2, the range Civil legal relations or legal problems solved adjusted that point the rule of conflict The range already can be Legal relation, Juristic fact Legal question
3,attitution to Law that " range " in it is the fixed rule of conflict should be applicable to The structure is often shown as " ….Suitable ….Legal "
4, point of contact Appoint the part of the objective sign in order to display of the applicable law in in rule of conflict Function as bridge and media
5,lex loci actum Mean the law of the spot affiliated law land of the juristic act Originate from " the place arranged the behavior " this legal old saw
6,applicable law Do not adjust the civil legal relation concerning foreign affairs directly, but choose the law It is can concrete to confirm right and substantive law of the obligation of party to be
7,qualification Speaking from the essence, discern it is a legal process of cognition Function of the qualification: At suitable rule of conflict, must getting clear at first What legal category what one involves belongs to the fact or the issue.
S3 fundamental problems about rule of conflict
一、 Renvoi 1 、 Revoi concept For a case ， the count will use foreign law according to its rule of conflict,but this foreign conflict law direct the legal relation apply lex fori.
legend The law of AThe law of B
2 、 Transmission For a case ， the count will use law of B according to its rule of conflict,but this B conflict law direct the legal relation will apply the law of C.
legend The law of A The law of BThe law of C
3 、 indirect renvoi For a case ， the count will use law of B according to its rule of conflict,but this B conflict law direct the legal relation will apply to the law of C. But C confilct law direct lex fori.
legend The law of C The law of B The law of A
4 、 double renvoi It is only in Britain. In the end,it apply to foreign law Britain law Foreign law
二、 evasion of law Mean parties of civil legal relation concerning foreign affairs makes one kind of and connects with the joint on purpose, in order to avoid legal norm that should applicable to actually, make to one‘s own favorable behavior that law can suitable to apply of country a certain. Only stipulate and evade in our country that forces the law to be invalid at home.
Composition of evasion of law Subjective: On purpose Target : Mandatory norm that it should be suitable that the ones that were evaded are Form the important document Means: Intend to alter the dynamic connection to click Result: Accomplished
Way of evasion of law ： (pass and alter the dynamic connection to click) Alter the residence or the nationality Alter the behavior ground Alter the site (when suitable to apply the local law of the thing ) Alter the religious belief (in the country of the suitable religious regulation)
三、 Preliminary question Concept : Also called the residual problem, it is a fingering institute, while dealing with the commercial dispute of the people concerning foreign affairs, must regard solving another problem condition first as, can call " a question " the original problem, the problem solved first is called " preliminary question " or " residual problem ".
Cond ition Independent of the subject matter This applicable law of depending on court's ground law of question is a foreign law Court ground law rule of conflict have to their different to guide with copies of question
四、 ascertainment of foreign law 1 、 Concept : Pointing will have national rule of conflict only to a certain civil legal relation concerning foreign affairs, while pointing out a certain foreign law is the applicable law, confirm which regulations this foreign law has to this kind of civil legal relation concerning foreign affairs 2 、 Method The party proves with evidence The judge finds out in accordance with the functions and powers Judge's functions and powers are found out and the party help
3 、 Method of our country ： Central organizations of the other side concluding the administration of justice and helping the protocol with our country offer The party offers Stayed in the embassies and consulates of his country by our country and offered Stayed in the embassies and consulates of our country by this country and offered Offered by Chinese and foreign law experts
4 、 In our country, when the foreign law is unable to find out, covered by my national law. The foreign law is applicable to the mistake to allow to appeal
五、 The public order keeping Concept : Fingering institute country in the foreign law of suitable to applying according to national rule of conflict, if course or result that applicable to its violate court vital interests, ground of country or when contravening the basic principles of the morals and law of this country, limit, get rid of the system that this foreign law is applicable to.
S4 The law of the civil legal relation concerning foreign affairs is applicable to
一、 The law of the relation of real right concerning foreign affairs is applicable to 1 、 Scope of application of site of the general thing. Object range of real right Discernment of the movable and immovable property Content and kind of the real right Real right protection method Exception ： Real right change of goods in transit Shipping and flight implements right relation The legacy is inheritted The lapse of the foreign juristic person is dismissed
2 、 Shipping ： The real right relation general ship flag national law of shipping, but priority is covered by court's ground law
3 、 Civil airborne vehicle ： The civil airborne vehicle generally registers the national law, but priority is covered by court's ground law.
4 、 Note ： Note comply with principle on " place arrange behavior " generally, notice recourse to suitable to apply ticket office law, ground law that the procedure of saving from damage when the note is lost is covered by paying the bill
二、 The law of the debt of the contract concerning foreign affairs is applicable to Principle ： Suitable principle that the international treaty has priority Party autonomy principle Maintain close ties with the principle most: If the party has not exercised party autonomy International practice fill a vacancy principle (can't violate social public interests when suitable our country having)
三、 The law of the debt that infringes concerning foreign affairs is applicable to Ususlly: Court's ground law principle Tort ground law It is covered by the tort ground law and court's ground law to overlap Belong to the laws of people together Maintain close ties with the principle most
New development : Tort body law since, belong to to tort ground law, court ground law and party synthesis, people of law consider together, not merely overlap suitably
四、 The law of the relation of marriage of a Chinese with a foreigner is applicable to 1 、 marry ： It abide by mainly various countries conclude marriage not belonging to people the law the principles, marriages concluding ground the law the principles, parties belong to law and party there aren't people the laws 。 Our country: Conclude the ground law in marriage
2 、 Divorced ： Divorce applicable law of various countries the same method, but a kind of generality is that their laws are applicable to and be influenced by the fact that administer the system Only principle of the applicable law that our country divorces ： lex fori
五、 The law of inheritting the relation concerning foreign affairs is applicable to 1 、 In the world ： There are different systems in various countries, make and distinguish the differentiation that is made the samly ： Make the samly : Distinguish movable property and real estate, with arrange according to law surely. To belong to people law inheritor generally. Distinguish and make: Distinguish movable property and real estate, is controlled by different applicable laws. It is movable property that suitable to apply to belong to people law inheritor generally, real estate suitable to apply local law of thing
2 、 Our country: (distinguish and make) （ 1 ） The movable property is applicable to the ground law of the residence while dying by the inheritor （ 2 ） The real estate is applicable to the law of real estate site
3 、 Exception (make singly) Our country adopts the single principle made in the applicable law that nobody inherits the property is confirmed, regard legacy site as nobody's applicable law of inheritting property, unless there are different regulations in the international treaty that our country concludes or participates in.
S5 International civil action and trade arbitration of the international member of a nationality
一、 Concept and principle of international civil action 1 、 Concept : It mean in lawsuit having one party foreign citizenning, legal personning, other civil actioning of organization at least among the subject mainly. It is general names of different legal norm which stipulates the international civil contentious procedure.
2 、 Principle Principle of state sovereignty Principle of national treatment Respect the international treaty and principle of the international practice Equal principle of reciprocity
二、 Foreigners' civil action status The current method is in the world for foreign people's thing capacity: It belongs to the laws of people to covered by parties in principle. Foreigners go on the civil activity in our country field, if for not having civil capacity in accordance with the national law, and in order to have civil capacity in accordance with the law of our country, should regard as civil capacity.
If foreigners ask the lawyer to act as agent, must entrust the country lawyer. If foreigners involve in appealing the lawyer in China, must entrust a Chinese lawyer
To the suitable principle of national treatment of our country of foreigner's lawsuit, give consideration to the reciprocity principle. Notice: Foreigners here include the foreign natural person, stateless person, foreign enterprise and organization
三、 Administration of international civil action The sureness of the civil action jurisdiction of our country is considered ： Principle with sovereign right of the national administration of justice International civil action jurisdiction coordinates the principle Convenient lawsuit principle Effective principle
Five kinds of main jurisdiction The rank is administered : The court of first instance of the general foreign case is a people's court at the basical level, there is great foreign case that just the intermediate people's court does the court of first instance
To the lawsuit about identity relation which the person living brings in the field of our country, the residence ground or often people's court of the residence administer by the plaintiff The region is administered
Administer exclusivly Sino-foreign joint venture, Sino-foreign co-operative joint venture, the natural resources contract dispute of cooperative exploration and development Dispute of the real estate Dispute taking place in the port work Inherit the dispute of legacies
Concerning foreign affairs contract or concerning foreign affairs property party, rights and interests of dispute, can is it choose dispute have actual court of place of connection administer to agree in writing. Choose what the people's court of the People's Republic of China administer, can't violate this law about rank administering and exclusive regulation administered. Agreement of election of forum
The defendant of civil action concerning foreign affairs administers and does not put forward the objection the people's court, should also tell that reply, is deemed to admit this people's court is a court that has the right to administer Infer and administer
四、 The international administration of justice helping 1 、 Reason: One country jurisdiction of court is it render a service to happen in foreign country in principle, so lawsuit behavior want mutual commission among court and is it finish to help 2 、 Basis: The treaty or mutually beneficial relation exist 3 、 mainly help behavior ： Send overseasly Investigate and collect evidence Inquire witnesses Carry out the judgement
Overseas way to send ： Treaty way Diplomatic Channel Embassies and consulates Post Announcement Represent the organization in our country
五、 Trade arbitration of the international member of a nationality 1 、 Concept : Refer to person who open party dispute that take place among economy, trade, transportation, maritime affairs their right away in different country, reach written agreement, voluntary to is it refer to some country international the people commercial affairs arbitration organ carry on settlement way of dispute of arbitration to dispute on.
2 、 Organization: Can be divided into a temporary arbitration organ and standing arbitration organ. There are China International Economic and Trade Arbitration Commission and Chinese Maritime Arbitration Commission (MAC) inside in China Council for the Promotion of International Trade (CCPIT) in our country. 3 、 Arbitral agreement: Can reach after disputing on before disputing on, get rid of the effect that courts administered.
4 、 Arbitral award ： Engagement : To both parties Carry out strength : Can apply to enforce （ Can prove applicant arbitral award violate due course of law or execution of award this violate social public interests, the people's court verifies through examining, can decide that refuse to carry out. )
六、 The judgement or the mutual recognition and execution that awards 1 、 Basis: International treaty and principle of reciprocity
2 、 Procedure The way of submit ： The party refers to court that has the right to administer directly The court submits to according to the international treaty and principle of reciprocity
The court examining ： Legal basic principle State sovereignty, security Social public interests It is qualified to examine, decide that admits it rendered a service, needed carrying out, send out the order of carrying out, carry out in accordance with the relevant laws of our country. Otherwise refuse to admit and carry out