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Talking about private international law in English

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international economic law

Refers to the adjustment between countries; Between international organizations; Between countries and international organizations; The relationship between the state and private individuals in other countries; The general name of the legal norms of mutual economic relations between international organizations and private individuals and between private individuals of different nationalities. It is formed and developed with the increasing trade and economic exchanges between countries and the increasing state intervention in trade and economic activities. As early as the end of the Middle Ages, major European commercial cities had some rules on international business transactions. After the Second World War, a large number of legal rules and systems related to international economic relations appeared in the form of treaties between countries. As a discipline, international economic law developed gradually after the Second World War.

Concept and Scope There are different theories about the concept and scope of international economic law at home and abroad. Generally speaking, they can be divided into two categories: broad sense and narrow sense.

International economic law in a broad sense generally refers to laws that regulate international economic exchanges. Its scope includes all legal rules and systems on transactions and exchanges that transcend national boundaries and involve any economic interests, regardless of whether the subjects of transactions and exchanges are countries, international organizations or institutions, state-owned financial institutions (such as national central banks), or individuals, legal persons or multinational companies. Nor does it distinguish between international law and domestic law, public law and private law. Jurists who advocate this concept generally believe that international economic law is the general name of international law norms and domestic law norms of economic relations and economic organizations in the international community. They break the boundaries between legal departments and emphasize the interaction and mutual penetration between legal departments. Scholars of this school of international economic law pay special attention to studying practical legal issues from the perspective of the integration of various relevant laws and regulations, which is more practical for practical legal workers.

In a broad sense, the content of international economic law is very extensive, mainly including the following aspects: ① domestic legislation and international law on the economic status of foreigners. (2) The private law of international business transactions, including the law on sales, transportation and contract of goods, insurance law, company law and maritime law. (3) Domestic laws and regulations on international trade, such as tariff laws and regulations, domestic tax laws and regulations, import and export control laws and regulations, foreign exchange control laws and regulations, quality and packaging standards, etc. ④ Domestic legislation and international law on foreign investment, including the organization and liquidation of foreign investment, the treatment, protection and guarantee of investment (see the International Investment Law), nationalization and expropriation, methods for solving investment disputes and applicable laws. ⑤ International law and laws of international economic institutions on international trade system, international monetary and financial system and international institutional investment system, such as General Agreement on Tariffs and Trade, International Monetary Fund, World Bank, regional international development banks (such as Asian Development Bank) and international commodity agreements. These laws are formulated in the form of international treaties, which constitute treaty obligations between countries and belong to the category of public international law, and do not directly involve or bind individuals. ⑥ Laws on regional economic integration, such as European Economic Unity Law, Economic Mutual Assistance Committee Law and Andean Treaty Organization Law. ⑦ International tax law, including tax jurisdiction and laws to solve double taxation (see International Tax Law).

Narrow international economic law is a special department of public international law. All private law issues (such as international contracts for the sale of goods) and domestic law issues (such as domestic legislation on import and export management) involved in international trade and economic transactions are outside the scope of international economic law. This school pays more attention to the study of the theoretical system of international economic law. According to the narrow concept, the scope and content of international economic law mainly include the following aspects: ① About the legal status of citizens (natural persons) and legal persons in the economic field outside their country. ② Legal system of private foreign investment. (3) The legal system of international institutional investment mainly involves the organic laws of the World Bank and regional development banks, and the laws of their funding sources and operations. ④ Adjusting the legal system of international economic relations mainly includes the principles and rules of international law on international trade, finance and monetary relations. The Law on the International Monetary System involves the following issues: the rules of conduct of the international monetary system established according to the Articles of Agreement of the International Monetary Fund, its implementation and reform, and the regional monetary system. The legal system of international trade includes the principles embodied in the General Agreement on Tariffs and Trade (such as the principle of non-discrimination, multilateral MFN treatment and national treatment, universal and gradual reduction of tariffs, the system of prohibiting quantitative quotas, the principle of preventing competition in export trade, the principles involved in the system of customs union and free trade area, the system of safeguard measures and the principle of exemption from implementation, etc.). International commodity (primary product) agreements, producers' associations, comprehensive commodity programs, non-reciprocal preferential principles for adjusting trade relations between countries with different levels of development (developed and developing countries), international codes of conduct for prohibiting business practices that restrict competition, and elimination or reduction of non-tariff trade barriers. ⑤ Law on International Economic Organizations and Institutions, including organizational structure, decision-making procedures and scope of functions. ⑥ Legal system of regional economic integration. ⑦ International tax law, and so on.

International economic law and international economic order are closely related to international economic order. In fact, the two are inseparable, and the former serves the latter. The international economic order contains at least two meanings, that is, the value system recognized by all countries in the field of international economic relations, that is, the political, economic and social concept system that guides international economic relations. ② Adjusting the legal structure of international economic relations, also known as the legal order of international economic relations. From this perspective, international economic law can be said to be the legal aspect of the international economic order, that is, the legal embodiment of the political, economic and social concepts that guide the international economic order.

From a global perspective, the dominant economic order in international economic relations today is still the economic order established at the end of the Second World War. Its core content is the system established by the Bretton Woods Agreement, namely the Articles of Agreement of the International Monetary Fund (see the International Monetary Law), the Articles of Agreement of the International Bank for Reconstruction and Development and the General Agreement on Tariffs and Trade. Although this international economic order and the international economic law that served it played a role in the economic and international trade growth of the United States and other western countries after the Second World War, it hindered the economic development of developing countries and caused the gap between the rich and the poor in the North and the South to widen. Therefore, developing countries are striving to establish a fairer and more rational new international economic order. The basic ideas and contents of the new international economic order are embodied in 1974, the Declaration and Programme of Action for the Establishment of a New International Economic Order adopted by the Sixth United Nations Special Session, the Charter of Economic Rights and Duties of Countries adopted by the 29th United Nations General Assembly in the same year, 1975, the Resolution on Development and International Economic Cooperation adopted by the Seventh United Nations Special Session and 1980.

The concept of a new international economic order refers to promoting the economic and social progress of developing countries in today's world economic environment (see the International Development Law), and adjusting and changing the existing international economic structure that reflects the old international economic order. According to the declaration of the Fifth Summit of Non-Aligned Countries held in Colombo from 65438 to 0976, the basic goal of the new international economic order is to establish a balance based on justice, cooperation and respect for human dignity in international economic relations. The specific issues involved in the new international economic order mainly include: international aid, international trade, international monetary and financial issues, industrial issues, technology transfer and business practices. (/view/4250 1.htm)

international private law

In the case of differences between civil law and commercial law in the world, which country's law should be applied to solve the relationship between civil law and commercial law with foreign factors. Because foreign-related factors are also called international factors, civil law and commercial law are traditionally called private law in the west, hence the name private international law. Because civil law in a broad sense can include commercial law, the difference between civil law and commercial law in various countries, and the legal terminology is called civil law conflict or civil law conflict, or legal conflict or legal conflict, this departmental law has long been called conflict of laws or conflict of laws. 1834, American jurist J. Storey coined the term private international law as a synonym for conflict of laws. Subsequently, German and French as well as Italian and Spanish created corresponding words. In China and Japan, it is called private international law. Because private international law is the law applicable to the civil laws of various countries, it is also called the applicable law.

History 184 1 German scholar Scheffno used this concept for the first time in his book The Development of Private International Law. This name is widely used in China, German, Japanese, Russian and other Eastern European countries.

The adjustment object of the concept of private international law is international civil relations, which can be called foreign-related civil legal relations. As the object of adjustment of private international law, foreign-related civil legal relations have the following characteristics: foreign-related factors. Specifically, there are external factors in the subject, object and content of the relationship; It is a broad civil and commercial relationship; There will be conflicts in foreign-related civil relations.

Conditions mainly include:

People from all countries have frequent exchanges, and some civil legal relations contain foreign-related factors, or one or both parties to the lawsuit are foreigners, or the property involved in the lawsuit is in a foreign country, or the litigation act or fact takes place abroad.

Civil laws in different countries are different from each other, such as the legal age of marriage, the share of heirs' inheritance and distribution, and the legal liability for breach of contract.

③ Within a certain range, it is necessary and possible to apply foreign laws to foreign-related civil legal relations. For example, China has signed treaties with many foreign countries, giving each other the right to register trademarks and protect them. In the implementation of such treaties, sometimes the question of whether a legal person is a legal person of the other country arises, that is, the nationality of a legal person. On this issue, the laws of different countries are inconsistent. Countries in continental Europe mainly adopt management centralism, taking the social residence of legal person, that is, the country where the main office is located, as their own country. According to the laws of common law countries, the country where a legal person is established is its own country. In other words, if a legal person is established according to the laws of that country, it has the nationality of that country. In order to decide whether a foreign legal person has the nationality of that country, China's trademark registration authority can only apply the laws of that foreign country.

Private international law mainly refers to the rules of which country's law should be applied to foreign-related civil legal relations, that is, the rules of private international law, which are called conflict rules, because the role of such legal rules is to solve the problem of law application when laws of various countries conflict. The conflict rule of the above example is that the nationality of a legal person applies to the domestic law of that legal person. The sum of these conflict rules of a country constitutes its private international law. Therefore, from the legal source (see law), the conflict rules are mainly domestic legislation and domestic precedents, and only a few come from international treaties.

In western countries, the earliest legislation of private international law is the Bavarian Civil Code of 1756. Since then, the legislation on private international law has gradually increased, and some countries have stipulated it in the civil code, such as Article 3 of the French Civil Code1804; Some countries stipulate in the civil law enforcement, such as the German civil law enforcement1896; Some countries have enacted it as a separate law, such as the former GDR 1975 Law on the Application of Laws in International Civil, Relatives and Labor Relations and International Economic Contracts; Some countries scattered it in some separate laws, such as Romania and Bulgaria's private international law legislation. The legislation of private international law has a trend from simple to complex. For example, the former Czechoslovakia Private International Law and the International Civil Procedure Law 1963 contained 68 articles, while the Swiss Federal Private International Law 1987 contained 200 articles. In addition to legislation, there are more and more cases of private international law in the common law system. Even in the European continental law system, the customary law composed of case law occupies an important position. For example, the precedents of French courts have established a fairly complete system of private international law.

Treaties related to private international law include multilateral treaties and bilateral treaties, also known as conventions. The Hague Conference on Private International Law formulated 32 conventions from World War II to the 16th session 1988. 1928 The Bustamante Code concluded by some Latin American countries in Havana contains 437 articles, which is a very complete code of private international law. In addition, Latin American countries also concluded the Montevideo Convention on Private International Law in 1940. There are many bilateral treaties with private international law provisions.

Because private international law is still at a low stage of development, some rules have not yet been finalized, and sometimes the theory of private international law also plays a huge role in international civil litigation.

Private international law is the applicable law. Private international law is the applicable law of civil law, not substantive law. Substantive law refers to the law that directly solves the rights and obligations of the parties. Private international law only points out which country's substantive law should be applied to solve the rights and obligations of the parties, but does not directly solve the rights and obligations of the parties. In the above example, the domestic law of a foreign legal person is substantive law, and the rule of "the nationality of a legal person applies to the domestic law of that legal person" in private international law is applicable law rather than substantive law.

According to the conflict rules, the substantive law of the country concerned is called the applicable law. In the above cases, the nationality of legal person is called the object of contact, and the problem of determining the case as the nationality of legal person is called qualitative, and the nationality of legal person is the basis of contact. The application of private international law means that when dealing with foreign-related civil cases, the object of contact is first determined through qualitative analysis, and then the applicable law is determined according to the conflict rules as the basis for judgment. Due to the different connection bases adopted by the relevant countries' private international law rules, sometimes there will be renvoi and renvoi.

China's private international law began in the Tang Dynasty because foreigners such as cannibals and Persians were in day trading, China. 65 1 year (the second year of Tang Yonghui), in the Yonghui Law, it was stipulated that "all foreigners who commit similar crimes should follow this customary law; Those who commit crimes against each other are in line with the legal theory. Law is the law of the Tang Dynasty, that is, the law of the imperial court. Because there is no clear distinction between punishment and person in Tang Dynasty, this provision is not only the provision of international criminal law, but also the provision of private international law. After the Tang Dynasty, successive dynasties mainly adopted the policy of closing the country to the outside world, and private international law did not develop until the late Qing Dynasty. The Regulations on the Application of Law promulgated by Beiyang Government 19 18 stipulates that personal law, kinship law and inheritance law should adopt the principle of the national law of the parties, but due to the consular jurisdiction of imperialist countries, there are not many opportunities for application. After the founding of People's Republic of China (PRC), some private international laws and regulations were formulated and relevant treaties were concluded. According to the regulations of the Ministry of Interior 195 1, the marriage between foreigners and between foreigners and China in China is governed by China law, that is, the marriage registration law. 1960 The Sino-Czech Consular Treaty stipulates that the consul can register the marriage of both citizens of the sending country according to the authorization of the sending country, but it does not exempt the parties or interested parties from the obligations stipulated in the relevant laws and regulations of the host country. The mutual registration and protection agreements between China and other countries stipulate that such registration and protection shall be governed by domestic laws. In recent years, China has concluded bilateral judicial assistance agreements with many countries, such as France. In order to solve international trade and maritime disputes, China has set up an arbitration commission. The Civil Procedure Law of People's Republic of China (PRC) (see the Civil Procedure Law) has set up a special section to make special provisions on foreign-related civil procedures. (/view/ 10238.htm)

References:

/view/4250 1 . htm/view/ 10238 . htm

Private international law is the general name of legal norms regulating foreign-related civil legal relations. Some western countries have traditionally called civil law and commercial law private law. The law regulating international civil legal relations is called private international law.

Nature:

There are still controversies about the nature of private international law, mainly as follows:

(1) Is private international law an international law or a domestic law?

1. Theory of international law

The School of International Law holds that private international law is international law, also known as "cosmopolitan school" or "universalist school".

2. The provisions of domestic law

It is believed that private international law is domestic law. Some people hold this view, such as Badin of France, Wolff of Germany, Kahn of F, Daisy of England, cheshier of G.C., North of P.M. and Morris of England.

3. Dualism

Dualism holds that private international law is an independent legal department, which has the nature of both international law and domestic law and does not belong to any legal department. The representative of this view is Qi Tellman.

(2) Is private international law an arbitrary legal norm or a mandatory legal norm?

Private international law is generally understood as the domestic legislative history of private international law.

In Europe, the systematic formulation of written conflict laws through domestic legislation was greatly influenced by the "international comity theory" of the Dutch school in the18th century.

In Europe, Bavarian Code 1756 and Prussian Code 1794 are the first codes to stipulate conflict rules in domestic laws.

At the end of 19, there was a legislative way to specify conflict of laws by separate regulations. Representative examples are German Civil Law Enforcement Law 1896 and Japanese Law 1898.

Section 2 History of the Theory of Private International Law

Since14th century, the basic theories of private international law have appeared in various theoretical forms, such as "legal differences", "international comity", "location of legal relationship", "acquired rights" and "local law".

A, Italy's theory of legal differences [secret]

Bartolus is the representative of Italian legal distinction theory. [memory]

Second, the French theory of legal differences

The representative figures of French legal difference theory are Charles Dumoulin and Dugent Lai.

[memory]

Third, the Dutch theory of international comity.

The representative of the Dutch legal distinction theory is ulrich huber, who put forward three famous principles: [memory].

1、

The law of any sovereign must be exercised within its territory and bound by its subjects, but it is invalid outside its territory;

2、

Anyone living in its territory, including permanent and temporary people, can be regarded as a resident of the monarch;

3、

The laws of each country are implemented within its own territory. According to comity, people who exercise sovereign power should also keep them effective within the territory of the country. Only in this way will they not harm the rights or interests of the latter and their subjects.

Huber's third principle also emphasized a view that later had a great influence on the Anglo-American school, that is, the view of vested rights.

IV. savigny's Legal Relationship This seat expresses [understanding]

/kloc-in the 9th century, private international law was finally advanced to a new stage due to the theory of location of legal relations put forward by savigny, thus making Saskatchewan known as the "father of modern private international law".

Five, the British acquired rights theory [understanding]

Daisy, a law professor at Oxford University, has made the greatest contribution to British private international law and marked a new milestone in private international law with her own vested rights theory. He published Conflict of Laws on 1896.

Six, Cook's "local law theory" [strong memory]

This theory was put forward by Cook, an American law professor, in the book Logic and Jurisprudence Basis of Conflict of Laws published in 1942.

The theory of equality and mutual benefit put forward by scholars of private international law in China and the theoretical viewpoint that private international law should take the construction of a new international civil and commercial order as its own responsibility in the 2 1 century are increasingly showing great vitality.

Section III History of Private International Law in China

In 19 18, the Beiyang warlord government promulgated the first private international law legislation in the history of China-Regulations on the Application of Law.

Interviewee: Anonymous 9-22 09:22

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