The Analysis Of The Preliminary Question About Dalian HADEDA Case

The preliminary question was discovered by German scholars--Melchior and Wengler, which caused widespread attention from scholars on this question in the field of international private law. However, as for the standard of identifying a preliminary question, the rules of law application of preliminary question and so on, there exist big differences between the domestic and foreign scholars. The advantages and disadvantages of theories from these scholars make the preliminary question obscure in the judicial practice. Therefore, it is necessary to make further research and analysis to the preliminary question. Focusing on Dalian HANEDA Case, the thesis makes systematic discussion about the concept, structure and solution of the preliminary questionPart 1, raising the question. In this part, through the introduction of the typical case about the preliminary question--Dalian HANEDA Case and the judgment from court on this case, the main legal issue discussed in the essay is drawn forth, namely what the preliminary question is, how to identify preliminary question, what the solution rule of the preliminary question is, and the discussion about this case under the existing rules in our country.Part 2, the composition analysis of the preliminary question about Dalian HANEDA Case. This part mainly introduces the concept and the constitution condition. There is no unified view about the constitution condition of preliminary question in the theoretical circle. In this part, the author starts from the conventional views about constitution condition of preliminary question referred by Morris, reflects on the conventional view, analyzes its advantages and disadvantages, and concludes own opinion about constitution condition of preliminary question, namely the three elements of constituting the preliminary question: the precondition, independence, supereminence. In addition, based on theory, the author examines whether Dalian HANEDA Case contains the three elements one by one.Part 3, the analysis about law choices of preliminary question in Dalian HANEDA Case. The research about preliminary question focuses on the solutions of preliminary question. Since the preliminary question shows up, there exists controversial opinion about laws choices of it. A unified rule is not found in the academic world and practice. This part analyzes the four main rules of choosing laws, points out its advantages and disadvantages, and on the basis of the theory, perfects the rules of laws choices of the preliminary question, and makes the detailed analysis about the laws choices which may present in Dalian HANEDA Case. Comparing the old rules of choosing laws with new rules of preliminary question in the Dalian HANEDA Case, it is concluded that the conflict rules theory of the court is the most appropriate theory which determines the proper laws of preliminary question in this case.Part 4, The analysis about the preliminary question in Dalian HANEDA Case under the new rules. In the legislative level, the countries which regulates the preliminary question are few and far between. Current legislation of our country also did not make specific provisions to preliminary question, and there is only simple introduction in the legal explanations of Law of Law Application of Foreign Civil Relations. This part analyze the law application of preliminary question under the new rules of Law of Application of Foreign Civil Relations, and makes comments on the current rules of preliminary question in our country.