Ten Highlights Of China'S New Civil Law Related To Foreign Affairs

The seventeenth session of the Standing Committee of the Eleventh National People's Congress voted in October 28th.

The author has been invited to participate in the legislative seminars and expert meetings convened by the Law Committee of the Standing Committee of the National People's Congress.

As one of the experts participating in the legislation, the author thinks that the law has the following ten outstanding points:

Highlight 1:

Completing the systematization and modernization of China's conflict rules

The so-called "conflict rules" refers to a part of the legal rules that a country should specify when applying a foreign civil relationship.

China's current conflict rules are mainly contained in the eighth chapters of the general principles of civil law (142nd to 150th) and other laws, regulations and judicial interpretations.

However, the existing conflict rules are not systematic, comprehensive and partly obsolete. Some conflict rules even contradict each other. There are also disagreements between the conflict rules in laws and regulations and the conflict rules in judicial interpretation.

There are 8 chapters and 52 articles on the law applicable to foreign related civil relations. For the first time, the rules of conflict are concentrated in the same single law.

In content, the new conflict rules are more reasonable, comprehensive and perfect, which not only summarizes the experience of foreign civil trial since the reform and opening up, but also complies with the development trend of contemporary private international law.

Highlight two:

The most closely related principle occupies a place.

The second clause, the second paragraph, provides that "this law or any other law does not specify the law applicable to foreign related civil relations, and applies the law that is most closely related to the foreign civil relations."

This law does not promote the principle of the most significant relationship to the general provisions, as in the code of private international law of the Austria, nor does it take the form of exception clauses, such as the Swiss international private law code, but regards this principle as a supplementary principle.

In the field of contract, the law applies the principle of the most significant relationship to the rule of law which is only next to the principle of autonomy of the parties, and adopts the theory of "characteristic payment".

The forty-first provision stipulates that when the parties have no agreement to choose the applicable law of the contract, the contract "applies the law that the duty of the parties regularly reflects the characteristics of the contract, or other laws which are most closely related to the contract".

Highlight three:

The principle of autonomy of the parties is given prominence.

The third provision states: "in accordance with the law, the parties may expressly choose the law applicable to foreign-related civil relations."

Although this is only a declarative clause, it stipulates the principle of autonomy of the parties in the general provisions, which embodies the openness and advancement of the law.

In addition to the traditional contract area (forty-first articles), in the field of principal agent, trust, marital property relationship, real property in pportation, the parties' general agreement on tort liability and the right to intellectual property infringement, the choice of appropriate law, the unjust enrichment and no cause management, the pfer and licensing of intellectual property rights, the parties agree to choose the applicable law.

{page_break}

Highlight four:

Innovatively take the habitual residence as the main connecting point.

From the perspective of international private law, the countries in the continental law generally adopt the law of nationality, and the common law countries generally adopt the doctrine of domicile.

However, after the Second World War, the trend of habitual residence is the connection of habitual residence.

Since 1956, the Hague International Private Law Conference has abandoned the nationality law doctrine adopted by the early Hague Convention and adopted the common residence node.

This law is unique to habitual residence as the main connecting point. It accords with the new situation and new situation of the frequent civil contacts between natural persons and legal persons at home and abroad under the background of economic globalization.

Highlight five:

Paying attention to protecting the interests of weak parties

In the absence of a common habitual residence, the relationship between parents and children "applies to the law of one party's habitual residence or the law of the state of nationality in favor of protecting the rights and interests of the weak" (twenty-fifth); to support "the law applicable to the law of a habitual residence, the law of the state of nationality or the location of the principal property in favor of protecting the rights and interests of the dependant" (twenty-ninth articles); and guardianship, "a law applicable to the habitual residence of a party or the law of the nationality state in favor of protecting the rights and interests of the guardian" (thirtieth).

In addition, forty-second "consumer habitual residence laws", forty-third "laborers' workplace laws", forty-fifth articles and forty-sixth "law of the place where the infringed is habitual" is usually beneficial to protect the rights and interests of the weaker parties, because the law of habitual residence is often the most familiar and convenient way for them to claim their rights.

Highlight six:

Equal treatment of the open attitude of laws at home and abroad

The provisions of the "applicable laws of People's Republic of China" only contain fifth articles on the application of foreign laws, which will cause harm to the public interests of Chinese society, and tenth second paragraphs which should be applied to the law of other countries when foreign laws cannot be identified.

But they are not called conflict rules, nor are they unilateral conflict rules.

This is an example of the advanced concept of legislation.

Highlight seven:

The general provisions of private international law are quite characteristic.

The eighth provision stipulates that "the application of the law of the courts" to the nature of foreign-related civil relations is in line with the practice of most countries.

The ninth way to exclude all redress and change is reasonable, since the law does not take the permanent residence as the main node, but excludes the reversal and pformation, which can increase the certainty and predictability in the determination of the applicable law.

The expression of the fifth public order clauses has been improved compared with the current law.

As for the tenth article that identifies foreign laws, the authorities with jurisdiction are mainly responsible for the identification of foreign laws according to their functions and powers, supplemented by the foreign laws provided by the parties, which are suitable for China's national conditions.

{page_break}

Highlight eight:

For the first time explicitly stipulate the direct application of certain laws.

The fourth rule: "People's Republic of China law has mandatory provisions on foreign-related civil relations, and directly applies to the mandatory provisions."

These mandatory provisions of Chinese law are mandatory for the purpose of their specific purposes and must be applied by the people's courts and administrative organs dealing with foreign-related cases.

They have their own scope of application and are directly applicable to foreign-related civil relations in certain circumstances, and they are prior to conflict rules because of their compulsion.

For example, foreign exchange control law, minimum wage law, accident insurance act, tenant Protection Act and consumer protection law are all "directly applicable laws".

Highlight nine:

Partially solve the relationship between different conflict rules.

The second clause, the first paragraph, stipulates: "the law applicable to civil relations involving foreigners shall be determined in accordance with this law.

Other laws have special provisions on the application of laws concerning foreign related civil relations, in accordance with their provisions. "

Although this provision is in line with the principle of "special provisions better than general provisions" (the eighty-third law of legislation), if the legislator does not apply to the existing conflict rules, it will lead to the conflicting rules of the old and new conflicts.

The fifty-first provision: general provisions of the civil law 146th, 147th and inheritance law thirty-sixth, "inconsistent with the provisions of this law, the application of this law."

This is advisable.

Highlight ten:

The article is concise, concise and concise.

Throughout the law, the full text is concise and concise.

The law applicable law of foreign related civil relations undoubtedly helps the Chinese and foreign parties to use this law to safeguard their legitimate rights and interests, and also helps the people's courts, administrative organs and arbitration institutions to properly determine the appropriate law for foreign related civil relations in accordance with the conflict rules of the law, and to achieve the legislative purpose of "defining the law applicable to civil relations involving foreign countries, solving the civil disputes in foreign countries, and safeguarding the legitimate rights and interests of the parties concerned" (first articles), so it is commendable.