Since the 1980s, with the economic liberalization initiated by Deng Xiaoping, Chinese law has been in constant turmoil. China has acquired a modern legal arsenal, which it has just completed with an important piece: the law of the People's Republic of China on the application of laws concerning civil matters involving a foreign relationship [1] (zhonghua renming Gongheguo shewai mingshi guanxi falu shiyong fa, China (China) and China Foreign Affairs (French: French: French).
Its legislative body did not entirely ignore the rules of conflict of laws, but they were scattered, and very fragmented, sometimes in contradiction with each other, making the determination of the applicable law an often complex and perilous undertaking. This breakup caused a certain confusion and significant internal differences; eager to ensure a solid legal environment in support of its economic development, China has just adopted, at the 17th meeting of the Standing Committee of the 11th plenary session of the National People's Congress, a text systematizing its private international law. This law, taken at the central level, applies throughout China, except for the special administrative regions (Macao and Hong Kong) and Taiwan, which enjoy legislative autonomy.
This law, of October 28, 2010, came into force on April 1, 2011. It consists of 52 articles divided into 8 chapters; the first sets out the general principles, the following, the rules of conflict in the various branches of civil law: capacity, marriage, inheritance, real rights, obligation, intellectual property... The assertion of general principles, at first, and then specific rules in a second, reveals a German influence.
Two adjectives characterize this law: it is modern and systematic.
The desire to be at the “forefront” of private international law is constantly reflected in the comments of the authors of the law. They cite as evidence of this modernity the integration of provisions on the protection of the weak party (the consumer, the worker...), as well as the prominence given to the autonomy of the will.
Moreover, it is also intended to be systemic, organizing all the rules relating to the subject in the same text. This effort to systematize can be understood in a wider context: China has initiated a process of codifying its law. Its legislator is developing a civil code slowly; it proceeds in stages, drafting laws on major areas of civil law (property law, inheritance, etc.), which are thought to be the chapters of a future Chinese civil code.
Academics, often trained in Europe, especially in Germany, were involved in the drafting of the law. Consequently, a certain influence of Community private international law is felt, even if, in the interests of simplification, this law deviates significantly from it.
Private international law does not resolve a case on the merits, but provides a method for determining, in a situation of competition between virtually competent laws, who will have exclusive jurisdiction to resolve the case on the merits. We will therefore first study the methodology selected (I), before studying the particularity of certain connections (II).
I. The method chosen: the direct designation of the competent law
The law, written in the German way, contains in the first part a series of general principles, which form the essence of a general theory of Chinese private international law. The classical Chinese conflict rule locates a legal situation in a particular legal order by determining a connection point. However, the implementation of conflict rules can be more or less flexible. Chinese law has taken the side of a certain rigidity (A), which is however mitigated by its methods of implementation (B).
A. The bill for the Chinese conflict rule: the direct designation of the competent law
In law, a technical field, the terminology used is of particular importance. The Chinese law on laws applicable to civil cases of an extraneity does not use Western terminology of conflict of law rules, or Conflict of Laws Rules, who would have given Chongtu Guize () in Chinese, but uses the concept of Falu Shiyong Fa (france), translated with difficulty into French as a law on the application of laws.
This semantic discrepancy is not neutral. As it often does, the Chinese legislator could have simply ensured the literal transposition of foreign concepts into its law. In this Act, he made the decision to depart from Western terminology. This choice is indicative of the methodology adopted: a direct designation of the applicable law. Indeed, the Chinese conflict rule refers directly to the law competent to resolve a particular situation in substance, and not an entire legal order with its own conflict-of-law rules. One of the consequences is the rejection of the theory of dismissal in both the first and second degrees. Referral involves additional time in determining the applicable law. Once the forum conflict rule is in play, it is up to the judge to consult the conflict rules of the designated legal order, to find out if the latter accepts its jurisdiction, or if it refers it to a third legal order, whose conflict rules will have to be questioned to find out if it accepts its jurisdiction or if... and so on.
The Chinese rule of conflict of laws refers directly to substantive law, and not to the foreign legal order, taken as a whole and therefore including its conflict of law rules. This principle is affirmed by the 9th article of the first chapter of the law.
Referral is a technique for correcting the often abstract nature of a conflict rule, which arbitrarily attaches a legal category to a legal order; it also allows for a certain degree of international coordination, in the case of second-degree referral, because all the legal orders present in the referral chain, if they all agree, will designate the same applicable law. The exclusion of referral can be understood in the Chinese context by a desire for simplification: the autonomy of the will and the usual residence are almost the only connections retained. To admit referral would be to reintroduce complexity when the legislator has taken the side of simplicity.
A sociological reason may explain this choice: in all countries, international law presents a difficulty because of its technicality, generating litigation fuelled by judges who often lack expertise in the field. Although the Chinese judiciary is becoming more professional at a rapid pace, it is highly heterogeneous in its technical competence.
A certain difficulty arises in the case where the law designated is that of a federal state, because it is then necessary to determine within this state which law is competent to resolve the merits of the dispute. Not being able to enforce dismissal, and taking into account the rules of private international law of the foreign State, the legislator introduces the principle of proximity to determine within this State what will be the applicable law.
B. The implementation of the conflict rule
Two first questions arise: how to resolve a case of competition between rules of conflict? Or their absence?
First, how do you resolve a competing set of conflicting rules? The law affirms the principle lex specialis generalibus derogant. Thus, if a special law establishes another connection, this law will take precedence over the law commented on. However, the latter rules out the application of the conflict rules contained in the law on general principles of civil law and inheritance law.
In the absence of an applicable conflict rule, article 2 of this law confers on the principle of proximity (Zui Mique Guanxi YuanzeSuch) has a subsidiary role; the second paragraph gives jurisdiction to the law with the greatest proximity. It will then be up to the judges to determine which law has the greatest number of points of contact with the legal situation in question. But this law is comprehensive enough to ensure the rarity of such hypotheses.
Then, the question of devolution of the burden of proof from foreign law arises. Article 10 states that the content of foreign law must be proved by the body in charge of its application, be it the judge, the arbitrator, or an administrative body. If the proof is impossible to produce, then Chinese law has subsidiary applicability. However, in the event of a procedural agreement designating foreign law at the expense of forum law, the burden of proof falls on the parties.
Finally, there is the question of how to correct the conflict of law rules.
First of all, it is necessary to mention the role of mandatory provisions that are immediately applicable (Zhijie Shiyong Gai Qiangzhi (hereinafter referred to as) provided for in article 4. They present the eternal problem with police laws: the virtual impossibility of defining them. The law does not contain any operational criteria to distinguish these laws of immediate application from others. Commenting on this article, Professor Chen Weihu (he participated in the writing of the text) offers as an example the regulation of the exchange rate, the rules of consumer protection (!) or of the worker...
Finally, a public international order reaction mechanism is put in place, but in a deliberately very limited manner. Article 5 states that if the application of foreign law infringes the common interests of Chinese society (zhongguo shehui gonggong liyi,In this case, this law must be set aside in favor of the law of the forum. Indeed, it seems that the Chinese legislator expressed the desire to establish real equality between foreign law and Chinese law, thus showing “vanguardism”, according to Professor Chen. This mechanism in practice, given the narrowness of its trigger criterion, should almost never work.
LSince Chinese general private international law is summarily presented, it is appropriate to focus on its conflict rules.
II. Conflict rules organized around two main relationships
The Chinese legislator, undoubtedly for the sake of simplicity, has organized its private international law around two main, and almost unique, connections, the autonomy of the will (A), and the place of the usual residence (B). The principle of proximity only plays an auxiliary role in the event that none of the conflict rules provided for by Chinese law can be applied.
A. The prominent connection: the autonomy of the will
The Chinese legislator granted the principle of autonomy of the will (Yisi Zizhi YuanzeAncient Greek) a prominent place. The latter is affirmed in the first part of the law concerning general principles, in article 3, which states that the parties may, by express procedural agreement, opt for the application of a particular law. In this specific case, the choice of parties is an obstacle to the implementation of Chinese rules of conflict.
In addition to this general role recognized in the autonomy of the will, this principle intervenes as a connecting element in many conflict rules.
This is obviously the case in contractual matters. Article 41 provides that the parties may choose the law applicable to the contract. However, in the absence of choice, an objective location will be achieved by recourse to the usual residence of the debtor of the service most characteristic of the contract (Luxing Yiwu Zui Tixian Gai Hetong Tezheng by Yifang Dangshiren Jingchang Jusuo In fact, how can I say what is currently the real world? This location is highly reminiscent of the method adopted by Community law.
However, limits are placed on this method of location in order to protect the party deemed to be weak, such as the consumer or the employee:
Article 42: In a consumer contract, the applicable law is the law of the consumer's usual place of residence; when the consumer chooses the law of the place of sale of goods, of the provision of service, or if the entrepreneur goes to the place of the consumer's usual residence for a purpose other than for his professional activities, the law of the place of sale of goods or service provision applies.
Article 43: An employment contract is subject to the law where the work is carried out; in case of difficulty in determining the place where the work is carried out, the law of the place of the employer's main activity applies, if the employee is sent somewhere, the law of that place can be applied.
Article 44 provides that in matters of delictual liability, it is possible, by an agreement of will between the parties arising from the event giving rise to liability, to freely determine the law applicable to the dispute. Article 49 also provides for the possibility of determining the law applicable in the event of a dispute concerning intellectual property issues.
The role of will is found in the framework of company law: the Chinese conflict rule admits the principle of incorporation at the expense of the head office. However, an option is open, if there is a dissociation between the location of the main activity (Shiyong Zhu Yingyedi Falu) and the place of incorporation, to allow the law of the place where this activity takes place to be applied. The law also establishes a presumption: the main activity takes place at the place of the usual residence of the legal person.
B. The innovative connection: the law of the place of usual residence
The common connection for all matters related to the family is the usual residence (Jingchang Jusuo ). Chinese legislators preferred this connection to that of nationality. In doing so, they wanted to ensure greater flexibility, and to take note of the increasing development of globalization. The desire to ensure modern private international law is Ratio Legis of this choice.
This connection is used to resolve conflicts of laws in matrimonial matters.
A conflict rule with a cascading connection is used for substantive questions relating to the validity of a marriage: the applicable law is that of the common habitual residence of the spouses, in the absence of such, the common nationality, and in the absence of such, the common nationality, and in the absence of such, the law of the place where the marriage is celebrated. The Chinese conflict rule does not opt for a distributive application of the spouses' personal laws. The form of marriage is governed by the law of the place of celebration (articles 31 and 32).
The same applies to property relationships subject to the law of common residence. But in order to protect the weak party, Chinese law allows for an exception by creating a conflict rule with a material dimension: an option, whose election criterion is favorable, exists between a variety of potentially competent laws.
Article 25 provides that in property relationships between parents and children, the law of common residence must be applied; but in the absence of such a law, either the law of the habitual residence of the parties to the proceedings, or their national law, is applicable, with preference being given to the law in favour of the weaker party.
In inheritance matters, a division is made between movable property — subject to the law of usual residence — and real estate — subject to their law of situation. The validity of the will is also subject to the law of the usual residence.
The link to the usual residence has the defect of its instability over time — a family, a person, which may have to move — thus generating possibilities of mobile conflict — should the law of the new residence be applied, or of the old one? — that Chinese law does not solve. The problem is eliminated in the context of the will, where it is specified that the applicable law is that of residence at the time the act is drawn up.
Article originally published on: https://www.lepetitjuriste.fr/le-renouveau-du-droit-international-prive-chinois-la-loi-du-28-novembre-2010/
