Lex Persona Communis Applicable To Torts With Foreign Elements

There has been a great change in the field of choice of law on torts with foreign elements in China, as the Law of The People's Republic of China on the Law Applicable to Foreign-related Civil Relations ( hereafter"Law on the Application of Laws") come into force as of April 1,2011. Pursuant to the new Statue, where the parties have common habitual residence, tortious liability shall be governed by the law of their common habitual residence, with the exception of an"ex post agreement"by both parties on an applicable law. (Article 44) It is a manifest departure from the Lex Persona Communis in the Article 146 of General Principles of The Civil Law of the People's Republic of China (hereafter"General Principles of The Civil Law"), which provides,"if both parties are citizens of the same country or have established domicile in the same country, the law of their own country or the country of domicile may be applied."This change in the Law on the Application of Laws, brings a new subject to the scholars on private international law in China. This research theme may comprise problems as follows: What was the background of the occurrence of Lex Persona Communis? Which theories built this rule? How this rule has been applied in the case of tortious liability in United States and countries in Europe? Is there any deficiency in the rule? Answers are given to these questions in this article. And two clues are followed in discussion. On one hand, the establishment of Lex Persona Communis is explored in the view of development of Private International Law. On the other hand, the deficiency and flexibility of this rule is presented by comparison with the practices in U.S and codifications in Europe. A critique on the Article 44 of Law on the Application of Laws is followed after the analysis of the history of Lex Persona Communis.Part I focuses on the territorial feature of the classic conflict rules on torts: lex loci deliciti, lex fori and"Double Actionable Rule". Although these traditional rules have different theories and values, they all emphasize the relation between territory and the tortious civil relation with foreign elements. In other words, a territorial character is embedded in them. The social and economical condition of the human community before the 20th century may explain this phenomena.Part II analyses the social background, fundamental theories and process of the establishment of Lex Domicilii Communis in the practices of American courts. In the 20th century, new technology brought a great change in the human society. As a result, the substantial laws of torts experienced various transforms, such as the appearance of new types of tortious cases, the principle of strict liability and establishment of insurance system. As substantial law is the base of rules of choice-of-law, evolution in the former would inspire revolution the in the latter. In U.S, this demand encountered thought of Legal Realism in 1920, when a revolution in conflicts of laws broke out. And it is the Lex Domicilii Communis applicable in the cross-state cases of torts that was one of the achievements of the revolution. This new rule of choice-of-law in tort has two theoretical elements: the distinction between condult-regulation and loss-distribution found by Ehrenzweig and Brainerd Currie's"Analysis of Government Interest". As sufficient cannonballs had been supplied by scholars, judges met the chance of departure from the traditional rules. In 1963, the Supreme Court in New York abandoned the law of the last act in torts and replaced it with a new approach in the case Bobcock v. Jackson. The result of this new approach in choice-of-law was just the law of the parties'common domicile.Part III refers to common domicile rules in the practices of American courts and codifications of European countries. In U.S , the precedent in Bobcok v. Jackson was transformed into a rule in the case Neumeier v. Kuebner , in which the court brought up three succinct rules with a special emphasis on the parties'domicile. And the first rule of"Neumeier Rules"provided"when the guest-passenger and the host-driver are domiciled in the same state, and the car is there registered, the law of that state should control and determine the standard of care which the host owes to his guest."According to the report of American scholars, in the cases which both parties had the same domicile nearly a great majority of courts applied the Lex Domicilii Communis. Under the effect of American Conflict-of-Laws Revolution, many European countries introduced the common domicile rule in their private international laws. On May 15,2007 the European Parliament and the Council, eventually approved the final version of the Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligation("Rome-II"), in which the Article 4(2) provides a common habitual residence rule.In the final part, a critique of the common habitual residence rule in Article 44 of the Law on the Application of Laws is provided. The deficiencies of this statue are as follows: inaccuracy of the term"Jing Chang Ju Suo DI", narrow scope of the rule and lack of flexibility. A suggestion of the amendment of this article is brought forward,"Tortious liability is governed by the law of the place of tortious act. Where the parties both have their habitual residence in the same country, the law of that country shall apply. However, where the parties have chosen by agreement an applicable law after the tortious act occurs, the agreement shall be followed."...