| In the second half of the 20th century,the voices of doubts about the traditional conflict of laws system emerged one after another in the academic circles,which formed the mighty American Conflicts Revolution.Compared with the fierceness and extremes of the American Conflicts Revolution,the method adopted by the academic circle of European private international law is gradual,focusing on the improvement of the traditional conflict of laws system.While the traditional conflict of laws system was in crisis and legal choices were tossing between “rules” and “methods”,Henri Batiffol,a French scholar of private international law,put forward the world-famous“Theory of coordination”,opened up the value orientation and development direction of private international law with new thoughts,as well as formed a new paradigm of“Coordination theory” of private international law in France and around the world.The Theory of coordination in French private international law is a relatively mature theory that has been baptized by time,passed down by generations of scholars,and has been culminated in Batiffol.Batiffol expounds his coordination thought in many works,which can be summarized into four parts: Ontology,Background theory,Methodology and Applicability theory.Focusing on the above-mentioned core content,the paper herein traces the origin and flow of the Coordination theory in French private international law,and explores its enlightenment to Chinese private international law in the last part.The full text is divided into five chapters,which are described as follows:The first chapter is the Ontology of Coordination theory.This chapter is divided into three subsections,respectively discussing the definition of the coordination theory,the historical evolution of the Coordination theory,and the basic categories of the coordination theory.In the definition of coordination theory,this paper firstly defines the different meanings of the word “coordination” and the related fields of“Coordination theory”.The meaning of the word “coordination” in general,legal and private international law is in the same line,but there are also distinctions.At the same time,the term “Coordination theory” exists in many fields of law.For example,economic law,administrative law,international law and private international law all contain “Coordination theory” with different emphases.The “Coordination theory” of the research in this paper is the one which was condensed and developed by French scholar Batiffol in the 1950 s on the basis of summarizing predecessors in French private international law.Regarding the historical evolution of the coordination theory,this paper summarizes the development process of the coordination theory into five stages: the embryonic stage,the establishment stage,the development stage,the deepening stage and the expansion stage.Each stage reflects the course of Batiffol’s exploration,reflection and deepening of Coordination theory.As for the basic category of Coordination theory,this paper focuses on three parts: the basic thought,basic characteristics and basic principles of Coordination theory.First of all,Coordination theory embodies Batiffol’s balanced and eclectic position in several core categories such as national order and international order,policy and interest,conflict of law system and substantive law system,universalism and particularism,private international law and comparative law,legislative centralism and judicial centralism,foreign law and lex fori.Secondly,Coordination theory has five basic characteristics: national,practical,international,functional and result-oriented.Finally,the theory of coordination implements three basic principles,namely the principle of internal and external overall planning,the principle of “three benefits”balance and the principle of “double law” balance.The second chapter is the Background theory of Coordination theory.This chapter is divided into four subsections,namely: the social basis of the Coordination theory,the positive law basis of the coordination theory,the academic basis of the Coordination theory and the academic literacy of Batiffol.These four aspects constitute the background of the Coordination theory.First,in terms of social foundation,factors such as the development of international trade,the prosperity of international organizations and the influx of immigrants have created favorable conditions for the birth of the Coordination theory.Secondly,in terms of the basis of positive law,it mainly involves the non-codified legislative model of French private international law and the legal source status of judicial precedents in French private international law.The former leaves free space for the implementation of the theory of coordination in judicial practice,while the latter provides the possibility for judges to make laws.Thirdly,in terms of academic foundation,it mainly involves the foundation of legal philosophy,the foundation of private international law and the foundation of methodology.In the basis of legal philosophy,Batiffol absorbed the ideological essence of analytical positivism and legal realism,and pragmatically put forward the reality that “domestic order precedes international order,and multination private international law is more feasible than unified private international law”.In the foundation of private international law,Batiffol critically inherits the universalism and particularism of his predecessors,then integrates and compromises these two confrontational propositions;in the methodological foundation,through in-depth research on comparative law,Batiffol strongly advocates and implements the application of comparative law in private international law.In addition,the research on the “adaptation” problem in the academic circles at that time also inspired Batiffol and became an important tool for the implementation of the Coordination theory.Finally,Batiffol’s own academic quality has a distinct personality.His profound academic quality in the fields of philosophy,legal philosophy and private international law is the subjective condition for his theory of coordination,and it is also a key part of the achievement of the theory of coordination.The third chapter is the Methodology of Coordination theory.Coordination theory is based on “rules” and uses “methods”.Based on this,this chapter is divided into four subsections for discussion,namely: the methodology overview of the Coordination theory,the comparative method,the “adaptation” method,and the explanation of specific cases.Generally speaking,the methodology of Coordination theory can be divided into two dimensions: the metaphysical dimension and the metaphysical dimension.The metaphysical dimension refers to the method of comparative law,which is the “wisdom” of the methodology of Coordination theory.When adjudicating legal issues concerning foreign-related civil and commercial relations,judges consider and compare the intentions of the legislators and the legal content of the relevant foreign laws involved in the case based on the investigation of comparative law,in order to make a more just judgment.The metaphysical dimension refers to the method of “adaptation”,which is the “technique” of the methodology of Coordination theory.In the judicial practice of private international law,partial amendments are made to the seemingly contradictory legislative contents to achieve substantial and equivalent consistency.The comparative method mainly involves three aspects: the connotation of the comparative method,the function of the comparative method and the implementation of the comparative method.The method of “adaptation” is relatively complicated.This article will describe the outline of“adaptation”,the types of “adaptation” methods,and the solutions of “adaptation”.Batiffol divides “adaptation” into conflict norm adaptation and substantive norm adaptation.In the “adaptation” of conflict norms,Batiffol proposed three paths: first,interpretive “adaptation”,that is,proceeding an improved interpretation of the conflict norm;second,legislative “adaptation”,formulates new conflict norms for new issues;third,ordinal “adaptation” which prioritizes application of conflict norms according to the importance of the connection point and the degree of relevance to the parties.The adaptation of substantive norms mainly refers to the “adaptation” adjustment of domestic substantive law.Batiffol based on Lewald’s three classifications of“adaptation”,namely “transposition” and “substitution” and the narrow sense of“adaptation”,further clarifies that in the substantive norm,it is necessary to find the“fond commun” and “equivalence” in two different systems to realize the “common nature” and “equivalence” between the two systems.Finally,in order to better demonstrate how to use the method of comparison and “adaptation” in specific cases,this part takes the classic French case of private international law “Arrêt Rivière” as an example,from the perspective of the opposition between the law of domicile included in personal law and domestic law,it shows how to achieve a compromise through comparative methods,and how to use “adaptation” methods to resolve legal conflicts in specific cases.The fourth chapter is the Applicability of the Coordination theory.Based on the typical cases analyzed by Batiffol,this chapter shows the application of the Coordination theory in specific cases,which is divided into three categories: the object of the Coordination theory,the application of the Coordination theory in the substantive norm,and the application in the conflict norm.At the coordination level of substantive norms,the first is the coordination of the substantive content of the applicable law.This article cites the “Szlapka Trust” case,the trust relationship involved in this case does not exist in French law,so how to achieve the coordination of trust relationship between Common Law and French Law is an important observation point of this article.The second is the coordination of legal classification,that is,coordination in identifying conflicts.This article cites a divorce property division case heard by the German Supreme Court listed by Batiffol which involves the identification of marital property relations and the personal relationship of husband and wife.Batiffol argues that judges can better understand foreign rules only if they recognize the legislator’s intent and determine what the rule is made of.The last is the coordination in the public order reservation system.This article exemplifies the case of polygamous marriage to present it concretely.Batiffol pointed out that public order reservations do not mean refusing coordination,but seeking coordination in reservations.In this case,an improved interpretation of domestic law is needed to ensure the fairness of judgments.In the reconciliation of conflicting norms,this paper first analyzes the reconciliation in renvoi,Batiffol takes a refreshing stand on the basis of renvoi,he believes that renvoi is not about sacrificing domestic law for the benefit of foreign law,it should be seen as a powerful tool for harmonizing national legal systems.This is a classic exposition of Batiffol’s much-anticipated “Renvoi coordination”.Secondly,this chapter analyzes the coordination in the preliminaries.Batiffol believes that the legal application of the preliminaries should be determined according to the nature of the preliminaries and the main problems,that is,to distinguish whether the preliminaries are the source of the main problems or the simple condition.Finally,this chapter analyzes the coordination in intertemporal legal conflicts.Battifol points out that the choice of conflict norm caused by time factor should be guided by the parties’ predictability of the outcome to choose the appropriate conflict norm.The fifth chapter is the Apocalypse of the Coordination theory.This chapter discusses the influence of the Coordination theory,the evaluation of the Coordination theory and the enlightenment to China.The influence of the Coordination theory is divided into two aspects: the influence on private international law in France and abroad,as well as the influence on its own in the subsequent academic development.First of all,Batiffol’s coordination thought aroused important academic repercussions in Europe,Britain and France.Second,Batiffol’s reconciliation thought directly influenced the French native scholar Pierre Mayer,who extended Batiffol’s coordination thought from the field of conflict of laws to the dimension of jurisdiction and the recognition and enforcement of judgments.The evaluation of the Coordination theory can be divided into affirmation,doubt and the opinion of the article.There are three main stances for affirming the Coordination theory: first,it has strong practicability and meets the development needs of contemporary conflict of laws;second,it has profound connotations,and promotes the building of conflict of laws theory to “go up”;third,it has accurate positioning and leads the conflict of laws a paradigm shift in research.The doubts about the Coordination theory are mainly concentrated in the following four aspects:firstly,the obvious tendency of nationalism;secondly,the lack of innovation;thirdly,the lack of clarity;forth,the neglect of the role of the EU.Finally,the author summarizes the innovations,advantages and limitations of Batiffol’s Coordination theory by synthesizing the comments and analysis of the Coordination theory in the academic circles.In terms of innovations: firstly,the concept of “conflict of laws is the law of coordination of legal systems” is clarified,and the goal of private international law is the coordination of legal systems;secondly,a third path for choice of law is created between “rules” and “methods” which promotes the integration of conflict-of-law justice and substantive law justice as much as possible;thirdly,it builds a methodology of Coordination theory that can be implemented,that is,an“adaptation” method to achieve conflict norms and substantive norms through the method of comparative law.The Coordination theory has the following four advantages: first,it emphasizes “coordination” and attaches importance to the combination of “rules” and “methods”;second,it has a grand pattern and a lofty vision;third,the system is open and sustainable;fourth,focus on judicial practice and be forward-looking.Finally,the Coordination theory also has the following limitations: first,the common nature is difficult to define;second,the judge’s task is arduous,which increases the judicial burden;third,the judge’s power is oversized,and it is difficult to effectively regulate.Fourth,the statutory law system lacks the legal source status of precedents,which limits the promotion and application of the Coordination theory in statutory law.The enlightenment for China of the Coordination theory can be divided into three aspects: the theoretical level,the legislative level and the judicial level.The theoretical level includes five dimensions of enlightenment,including the compromise between universalism and particularism,the combination of conflict justice and substantive justice,the balance between certainty and flexibility,more extensive and in-depth comparative law research,and the sinicization of Coordination theory.At the legislative level,there are enlightenments from two aspects: the choice of legislative model and the improvement of related systems.At the judicial level,our country should establish the judicial concept of restraint and prudence,rationally protect the discretion of judges,learn from the application of the Coordination theory through the guiding cases of the Supreme People’s Court and highlight its adjudication guidance position,and appropriately introduce judicial “coordination”technology.Batiffol’s theory of coordination advocates inclusiveness,internal and external coordination,and hits the current malpractice of the contemporary development of private international law,showing the vitality of sustainable development,and has the tendency of leading the future development of private international law.Theoretically,the study of Coordination theory will help to expand the scope of country-specific research on private international law,analyze the rich theories of French private international law theory,improve the innovative quality of private international law theory in China,and defend the multilateral approach of law application.In practice,it can provide academic reserves for the improvement of China’s private international law legislation and an important methodological reference for my China’s foreign-related civil and commercial justice.At a time when unilateralism and the supremacy of national interests are rising,and globalization and the international order have suffered heavy losses,revisiting the essence of Batiffol’s theory of coordination and achieving coordination through comparison and “adaptation” will help to reawaken people’s awareness and confidence in tolerance,comity,cooperation,“win-win” and respect,and realize that civilization coexistence transcends civilization superiority,and legal coordination transcends legal conflict. |
PDF Full Text Request