Today we will cover two sections, focusing on summarizing viewpoints, supplementary understanding, and reflective insights.Chapter Four: The Concept of International Private LawSection Two: The Objects of Regulation in International Private LawContinuing from the previous text, determining the objects of regulation in international private law is crucial for defining international private law; simultaneously, from a legal perspective, the primary criterion for distinguishing different legal departments is the social relations regulated by any law, which highlights the importance of the objects of regulation.1. The Connotation and Extension of Foreign-related Civil and Commercial Legal Relations(1) Foreign-related Civil and Commercial Legal RelationsThe objects of regulation in international private law are foreign-related civil and commercial legal relations, also known as international civil and commercial legal relations.· Introduction: Foreign-related civil and commercial legal relations refer to legal facts that give rise to civil and commercial relations where at least one factor is connected to a foreign country or has a transnational nature.In summary, international private law is the legal department that regulates foreign-related civil and commercial legal relations. The foreign nature (or international nature) of this object distinguishes it from the domestic civil and commercial legal relations regulated by civil and commercial law; its private law nature differentiates it from other foreign-related legal relations.Generally, the foreign-related civil and commercial legal relations are judged based on the “three-element theory,” which includes the subject, object, and content. Specifically: ① One or both parties as subjects of civil and commercial legal relations are foreign natural persons, legal persons, or stateless persons; ② The object or subject matter of civil and commercial legal relations is property or actions located in a foreign country or that need to be performed or completed in a foreign country; ③ The content of civil legal relations, i.e., the legal facts that give rise to rights and obligations, occur in a foreign country.Although the above standards are objective, there are two aspects to consider in their specific application: first, to avoid rigid application, as such classification may lead to unfavorable situations for fair resolution of individual cases; second, to accurately understand the concept of “foreign,” which should actually include the meaning of “containing other legal jurisdictions.” For example, how British courts view Scottish law and Northern Irish law is considered foreign law; similarly, the application of laws in Hong Kong, Macau, and Taiwan must also consider jurisdictional issues.· Legal Provisions: “Interpretation of Several Issues Concerning the Application of the Law of the People’s Republic of China on the Law Applicable to Foreign-related Civil Relations (I)” T1:
· Supplement: Professor Huo Zhengxin summarizes China’s multi-jurisdictional framework in his book International Private Law as “One Country, Two Systems, Three Legal Systems, and Four Jurisdictions.” This also indicates that China’s multi-jurisdictional framework has its uniqueness and should be considered in conjunction with actual circumstances, rather than simply transplanting foreign models or copying foreign experiences.
(2) Legal Conflicts in Foreign-related Civil and Commercial Legal Relations
The process of handling foreign-related civil and commercial legal relations is essentially a process of legal choice, which involves issues of legal conflict.The central task of international private law is to resolve legal conflicts in foreign-related civil and commercial legal relations.
· Introduction: Legal conflicts in foreign-related civil and commercial legal relations refer to conflicts in legal applicability arising from different legislations of the countries involved, each claiming jurisdiction over the same civil relationship.
In summary, issues such as jurisdiction, legal applicability (legal choice), and the recognition and enforcement of court judgments abroad, although categorized as procedural and substantive, are essentially all legal conflict issues that require analysis of their causes for resolution.
2. Causes and Conditions for Legal Conflicts in Foreign-related Civil and Commercial Legal RelationsRegarding the causes and conditions for legal conflicts in foreign-related civil and commercial legal relations, the following summarizes the prevailing viewpoints:The first is the large number of civil and commercial relations with foreign factors that arise in real life; the second is that the provisions of civil and commercial law in the countries involved are not entirely the same; the third is the independence of judicial power in sovereign states; the fourth is that sovereign states need to grant equal civil and commercial rights to foreigners within their territory to develop foreign economic and trade relations, and recognize the extraterritorial effect of foreign laws within a certain scope. It can be said that the first two are objective conditions, but to truly generate legal conflicts in foreign-related civil and commercial legal relations, the latter two reasons must also be present.3. The Essence of Legal Conflicts in Foreign-related Civil and Commercial Legal RelationsThis book cites the views of Professors Yao Zhuang and Ren Jisheng: the essence of this conflict in legal applicability is the conflict between the extraterritorial effect of foreign laws and the territorial effect of domestic laws, or the extraterritorial effect of domestic laws and the territorial effect of foreign laws.Understanding this viewpoint requires sorting out the concepts of territorial effect and extraterritorial effect of laws. Territorial Effect refers to the effect of a country’s laws that apply to all persons, property, and actions within its jurisdiction, primarily manifested as the territorial supremacy of the state; Extraterritorial Effect refers to the effect of a country’s laws that can still occur outside the jurisdiction of the lawmaker, primarily manifested as the personal supremacy of the state.From the concepts, it is not difficult to see that the territorial supremacy and personal supremacy, which reflect sovereign power, will appear as two contradictory aspects when dealing with legal conflicts. However, the former occupies the main aspect of this contradiction, due to relevant provisions of international law, which will not be listed here. In summary, when countries exercise their territorial supremacy, they often voluntarily impose appropriate restrictions through special provisions in domestic law, especially conflict law provisions, or international treaty provisions, out of the need to develop normal international civil and commercial exchanges, but it should be noted that such restrictions are self-imposed.4. Types of Legal Conflicts in Foreign-related Civil and Commercial RelationsDue to the diverse manifestations of legal conflicts, different classification standards will form different types, and thus will not be elaborated extensively. However, once the conflict norms designate the applicable law of a certain country, issues such as inter-regional conflicts, interpersonal conflicts, and temporal conflicts will inevitably arise, which require a brief overview.(1) Inter-regional Conflicts: This refers to conflicts of private law between different regions or jurisdictions within a country. The law that resolves inter-regional conflicts is called inter-regional private law. International private law and inter-regional private law differ in terms of scope of application, constraining factors, and connecting points.(2) Interpersonal Conflicts: This refers to conflicts between laws applicable to different religions, ethnicities, or even different classes of people within a country. The law that resolves interpersonal conflicts is called interpersonal private law. International private law and interpersonal private law differ in terms of applicable subjects and the functions of connecting points.(3) Temporal Conflicts: This refers to conflicts between new and old laws, or later laws and earlier laws, that may affect the same civil and commercial relationship. The law that resolves temporal conflicts is called temporal private law. There is currently no consensus on how to resolve temporal conflicts in theory and practice, and measures need to be taken based on the nature of the legal relationship and the fair and reasonable resolution of the case.· Supplement: Some legal scholars believe that the above three types of conflicts belong to “secondary conflicts,” while the conflicts addressed by international private law are “primary conflicts.”5. Main Approaches to Resolving Legal Conflicts in Foreign-related Civil and Commercial RelationsAt present, the main approaches to resolving conflicts in foreign-related civil and commercial relations are two: indirect adjustment methods and direct adjustment methods.(1) Indirect Adjustment MethodThis method designates the applicable law for various foreign-related civil and commercial relations through conflict norms, without directly stipulating the rights and obligations of the parties.· Conflict Norm: A norm used to indicate which law should apply to a certain foreign-related civil and commercial relationship.From its definition, it can be seen that if the indirect adjustment method is used in resolving legal conflicts in foreign-related civil and commercial relations, it requires two steps: first, applying the conflict norm to identify which country’s law should serve as the governing law, and second, applying that governing law to determine the rights and obligations between the parties in the foreign-related civil and commercial relationship.However, the indirect adjustment method also has some limitations: ① The role of indirect adjustment does not clearly and directly stipulate the rights and obligations between the parties, nor can it foresee the consequences of legal actions; ② Conflict norms can only achieve formal justice in legal applicability, but cannot ensure substantial justice in individual cases, as they do not consider the existence and specific content of legislation; ③ Conflict norms are stipulated by the domestic laws of various countries, which are influenced by concepts of national sovereignty, interests, and judicial convenience, leading to complexity and controversy.In response to the above limitations, a series of systems such as renvoi, public order reservations, ascertainment of foreign law, and legal avoidance have emerged; however, differences will inevitably persist over the long term, and conflict norms will continue to play an irreplaceable role that other legal norms cannot substitute.(2) Direct Adjustment MethodThis method involves countries establishing unified substantive laws through bilateral or multilateral international treaties to directly govern the rights and obligations of parties in foreign-related civil and commercial legal relations, thereby avoiding or eliminating legal conflicts and legal choices.From its definition, the direct adjustment method adjusts the rights and obligations relationship by directly stipulating the rights and obligations of the parties through “substantive norms,” effectively filling the gaps left by the indirect adjustment method. Therefore, in contemporary times, domestic laws, international treaties, and international practices contain a large number of such methods.However, one should not assume that the advantages of unified substantive law norms can completely replace the role of conflict norms. In other words, the two methods will coexist and complement each other for a long time and cannot replace each other. There are two reasons: ① The application scope of the direct adjustment method is limited, for example, in areas such as inheritance and marriage and family law, which have personal characteristics, it is difficult to reach consensus, and the indirect adjustment method still needs to play a role; ② The functions of the direct adjustment method are limited, for example, unified substantive law is commonly found in international conventions, but the contracting states of the convention cannot include all countries, and it is only binding on the contracting states; contracting states often declare reservations on certain provisions of the convention due to considerations of interests; moreover, the convention may not provide comprehensive and clear regulations on the issues it addresses.In summary, the direct adjustment method and the indirect adjustment method are the basic methods for international private law to adjust foreign-related civil and commercial legal relations, and they are indispensable methods for international private law to resolve legal applicability. The two are complementary, and their specific application needs to be determined based on specific circumstances.Additionally, the book discusses the direct application of law and public order reservation clauses when discussing the adjustment methods for foreign-related civil and commercial relations, which I will elaborate on in later chapters and will not record here.