Comparative Studies In The Rules Of Law Applicable To Rights In Rem Of The Both Sides Of The Taiwan Strait

In2011, the mainland China and Taiwan both implemented a new private international law act, that were great achievements in international private law legislation for both sides of the Taiwan Strait. The amount of laws applicable to rights in rem in both acts increased substantially, so that the laws could adjust the diverse legal relationship in property in a more precise way. The new private international acts rule the laws applicable to rights in rem not only in general conditions, but also in the conditions for various real right objects. The movable property in transit, rights characterized as real right and negotiable securities are ruled respectively in accordance with the related domestic legislation as far as possible.Because of the limitation of Lex rei sitae which is adopted as the basic principles, The Law of the Application of Law for Foreign‐related Civil Relations (Mainland China)broke the tradition and a new set of laws applicable to rights in rem of the movable property was created on the basis of the party autonomy and Lex rei sitae. The new rules for the rights characterized as real right and negotiable securities, as amendments, correspond with the object scope of related domestic civil laws. But, several clauses of the new act went against the domestic legislative spirit, which became evident defects of the legislation.On the other hand, Law Governing the Application of Laws to Civil Matters Involving Foreign Elements (Taiwan) sticked with the principle of Lex rei sitae, and softened the inflexible connecting points to solve the conflicts mobiles of characterizing the lex rei sitae. The nature of the connections between the diverse objects distinguish and their lex rei sitae was distinguished, so proper conflicts of law were constructed by applying new connecting points. The legislators maintained a rigorous attitude when the doctrine of the most significant relationship and the party autonomy were applied as new connecting points. Those two Flexible connection points were set only in rules of the negotiable securities under the supporting of sufficient theoretical basis and Legislative Practice. So, the new act provided a explicit instruction for judicial practice.The specificity of new acts of the both sides of the Taiwan Strait will definitely bring a great contribution in solving foreign‐related civil and commercial cases, and they will also play an indispensible role in solving Chinese interregional conflict of laws. The author aims to summarize the features, advantages and disadvantages of the rules of law applicable to rights in rem, by using the methods of micro‐analysis and horizontal comparison, and come to a conclusion to propose several suggestions for domestic legislation and judicial practice.