Review And Perfection Of The Criteria For Foreign-Related Civil Relations In China

There is no controversy in Chinese academia that private international law adjusts foreign-related civil relations.However,as for the understanding of"foreign-related relations",great disagreements exist.Theoretically,"foreign-related relations" can be construed both broadly and narrowly.The former holds that civil relations involving foreign-related factors constitute foreign-related relations,while the latter believes that only when the existence of foreign-related factors makes the choice of law necessary,the civil relations belongs to foreign-related relations.Differences in theory affect the practice of law.In the process of drafting the Law of the People’s Republic of China on the Application of Laws to Foreign-related Civil Relations(2010),the legislators’ arguments considerably diverged over the definition of foreign-related civil relations,which eventually led to the removal of relating provisions from the final version.The people’s courts have different criteria for the identification of foreign-related cases,which affects the unity and authority of the judiciary.In recent years,with the increasing complexity of international civil and commercial transactions,some foreign-related relations have been formed in new ways and the existing criteria seem incompatible with them.Therefore,it is necessary to re-examine the standard of determining the foreign-related civil relations,and to discuss the new challenges and corresponding solutions.Chapter I summarizes the current theories and practices of the identification of foreign-related civil relations and points out that the mainstream opinion in China is the "theory of elements of legal relation".It discusses the problems triggered by the"theory of elements of legal relation".Interpretation of the Supreme People’s Court on Several Issues Relating to Application of the Law of the People’s Republic of China on Application of Laws to Foreign-related Civil Relations(I)improved much than previous provisions.On the basis of the "theory of elements of legal relation",it expanded the scope of foreign-related cases.It also increased the flexibility of the law by stipulating gap-filling provision and endows judge discretion power.However,the development is only an improvement in quantity rather than a qualitative breakthrough for its guiding ideology is still the "theory of elements of civil relation".By taking the case of "Dispute over the Recognition and Enforcement of Foreign Arbitral Award Between Siemens International Trade(Shanghai)Co." Ltd.v.Shanghai Golden Landmark Co.,Ltd.",this article reveals the dilemma that the traditional method cannot handle all situations in judicial practice.In addition,for some cases in which only the form is foreign-related,the "theory of elements of legal relation"still mechanically identifies them as foreign-related civil cases,and unreasonably expands the scope of foreign-related civil relations.Chapter II discusses the theoretical basis of the identification of foreign-related civil relations from the perspective of the values that it pursues and the logic that should be followed,based on which this Chapter reflects the value and logic of the current criteria,hoping to lay theoretical foundation for the solving of practical dilemma.This article holds that the identification of foreign-related civil relations,as an important part of private international law,should reflect the values pursued by private international law,which are "conflicts justice" and "substantive justice".In order to achieve the above two values,the identification of foreign-related civil relations should follow the logic of "the domestic being different from the international" and "substantial rationality".Chapter III focuses on the construction of new criteria for the identification of foreign-related civil relations.Under the guidance of the values and the logic proposed above,this Chapter constructs new criteria for the identification of foreign-related civil relations from the aspects of basic path,basic concepts and specific practices.The identification of foreign-related civil relations should be based on the degree of connection between the foreign law and the case at hand.Since "connection" is too vague to determine,certain specific criteria are necessary.Therefore,based on the"governmental interest analysis theory",which was proposed by American scholar Currie,this article proposes that it is necessary to consider the application interest of law to decide whether a civil relation is foreign-related or not.If there is a "real conflict" between the laws of different jurisdictions,the civil relation is foreign-related.If there is "false conflict" between the laws of different jurisdictions and the only interested law is foreign law,the civil relation is foreign-related.If there is a "false conflict" between the laws of different jurisdictions and the only interested law is the local law,the civil relation is domestic.The improvement of legal practice requires not only the foundation of legal theory,but also a clear basic concept as guide.Based on this,this article proposes that the following basic concepts should be followed when improving the legislation on the identification of foreign-related civil relations in China:firstly,maintaining the stability of the rules;secondly,ensuring the science of rules by adapting to the development of social relations;thirdly,promoting the operability of the rules by closely integrating with the status quo of judicial practice.Under the premise of proposed legal theory and basic concepts,this article thinks that the possible solution to handle the current dilemma can be explored from the following aspects:reasonable interpretation of "other circumstances that can be recognized as foreign-related civil relations",properly exercising discretion and perfecting the case guidance system.Chapter IV tests the practical feasibility of the new criteria by applying them to the civil relations involved the Free Trade Zone and foreign-invested enterprises,and civil relations in which only the form is foreign-related.