Define "(Trial)" the provisions of article 178 of the Civil and Commercial Relations in the Foreign

Abstract: Object of private international Law is international (foreign-related Civil and commercial relations is essential to its definition, the paper on the definition of foreign-related Civil and commercial relations between the two criteria for analysis and comparison of their advantages and disadvantages of China made on the basis <<(Trial >>(<<( Trial>> is the Supreme People's Court <"On the implementation of" Republic of China Civil Code "number of views on the issue (for Trial Implementation>> short, the same changes in Article 178 comments and explain the relevant reasons.

Keywords: foreign Law applicable to foreign factors
First, the definition of foreign-related Civil and commercial relations between the two standards
(A standard containing foreign elements
Private International Law, with the economic and trade exchanges between countries frequently, foreign Civil and commercial relations in the quality and quantity of significant changes have taken place, and the relevant countries have come to realize that the Law has not adjusted the domestic foreign-related civil and commercial relations between the reality based on a new legal depArtment to determine adjustments arising from these relationships. However transnational exchanges doomed itself to the foreign elements involved, including their legal relations subject, object, foreign-related legal fact. specific to connection point, the traditional view, in the main area is the main one or both pArties is a foreign natural or legal person, in the object, the relationship between civil Law as the subject matter in a foreign country, the legal facts in the performance of production, change or eliminate the public Commercial rights and obligations of the fact that in foreign countries. With the deepening of international exchanges, increasing the practice of modern national legislation, some new connections, an increase of the main aspects of foreign countries, international organizations or a stateless person, or domicile, habitual residence or business where the natural or legal persons abroad, increased by a controversial object of the subject matter of cross-border movement in the legal facts on the traditional adjustment range has been expanded, in the intellectual property rights, inheritance, marriage, private international law does not apply to adjust the original, and now in these areas are involved in different countries.

In a way, the emergence of private international law with foreign elements destined to foreign relations is its inherent adjustment measure, the standard is not controversial in the academic community, such as: "Foreign Civil Relations refers to the subject, object and At least three elements of the content of one or more of the factors associated with foreign civil and commercial legal relationship. "
(B Application of foreign law standards
Foreign-related civil and commercial relations not only within the laws of the country involved but also necessarily involves foreign law, in this case, if the number of national commercial law related to the contents of different specifications, and adjustment of claims under domestic law, it will inevitably lead to conflict, to maintain the interests of the pArties to the normal rules need to be in accordance with the laws of different countries to choose, any sovereign nation should not only living person in its territory (except enjoy judicial immunity, objects, events, actions to implement law and protection of also have the right of foreign nationals in the actual law and the protection of both public international law "is a superior right of people" and "superior right of territory." within the law involving the validity and extraterritorial issues, namely, the Application of foreign law problem, and recognition of foreign law applicable to the international civil and commercial exchanges to a certain stage the inevitable result of continued natural economic times strictly adhere to the Territoriality principle and recognition of foreign law applicable to clear depArture from the economic laws and economic development requirements, Moreover, the market the pursuit of the rational allocation of economic resources, in international commercial exchanges become more frequent and large numbers of foreign-related civil and commercial relations between the case and how to maintain the stability of the relationship between civil law and protect the interests of the people, taking into account the interests of foreigners in the international society "reciprocal" exchanges today, the mutual recognition between countries in some civil law countries, the extraterritorial effect, and under certain conditions, apply the laws of foreign countries as possible, and support of this view have legal options to apply.

But must refer to foreign law is the possibility of being applied, does not mean that a certain Application of foreign law. The number of foreign-related civil and commercial relations and the law of contact taking place in different countries laws are based on principles of national sovereignty and jurisdictional right to a legal conflict is inevitable, you need to opt in accordance with the rules of private international law, which state law applies in the choice of law, foreign law may have been selected. Mr. Li Haopei to private international law's definition: "means civil and commercial law in the world to each other differences in the circumstances, the civil relations with foreign elements, which should be applied to solve the law of the State law. "object that the adjustment of private international law should be two or more countries involved in the legal interests of the people select the appropriate relationship between civil law.

To some extent, foreign law may apply the standards and with the emergence of private international law developed, and has its inherent characteristics. A foreign-related civil and commercial relations are involved in the Application of foreign law, in addition to has the effect of foreign law clinics and legal facts, but also in recognition of the foreign law of the State laws and licensing can be effective, including the provisions of the country, although the number of foreign-related civil and commercial relations and the existence of a link, but its usually not the number of countries to adjust common behavior, but in fact the legal relations governing unilateral acts of States. in recognition of the country within a certain range effect of foreign law in order to obtain the adjustment of foreign-related civil and commercial relations between different legal systems of internal unity.

Second, the standard advantages and disadvantages:
(A standard of whether it contains advantages and disadvantages of foreign-related factors: the scope of the standard and broad, expanded the range of adjustment of private international law, but in some civil and commercial legal relationships involved may appear to be the object of adjustment of private international law, Application of foreign law, but not the case, as the inherent defects of the standard. If <<Foreign Equity Joint Ventures Law "> Article 2: Joint Ventures" all activities shall abide by the laws, decrees and the relevant regulations. "Thus, the law did not involve joint ventures to the effect of foreign law. so, whether the use of light standards with foreign elements can not explain such legal relationship.

(B is the standard application of foreign law, the advantages and disadvantages: choice of law applicable to private international law is the law, private international law to adjust to the object located in the law applicable to relations between States in order to truly understand the specific conflict rules of international private law and private international law the meaning of norms theory of specific systems. conflict rules point to a law of the country, if understood as the law of the country and include both substantive law of all laws, including conflict of laws, and points to the conflict rules of the country, will appear and after renvoi, transfer or indirectly caused by anti-To, the end point of a country's substantive law. to the substantive law of a State civil and commercial relations to foreign rights and obligations of the parties, not only to the immediate interests of the parties, but also with the forum State the public order, good customs, closely related, so may appear parties through their own manufacturing or Gaibian willfully and intentionally a connection point to achieve the legislation to their advantage the law applicable to the occurrence of avoidance behavior, also occur for the foreign law will be the vital interests of the forum State, the basic policy, the basic concepts of ethics or contrary to the basic principles of law, thereby excluding its application to retain use of the system of public order. The biggest drawback is that the standard could cause "selection Court, "State Court judges discretion expansion.

The author believes that the adjustment of private international law should be the object of international civil and commercial exchanges generated, involving two or more interests of national law choose to apply civil law relations. Among them, the "foreign elements" and "the application of foreign law" is determined based on the object of Private International Law, both are indispensable. The former is the premise, which is the key, not foreign elements, would have no choice of law applicable to the problem, only foreign-related factors, but does not involve the interests of the parties in different countries, will not conflict of laws occurs, it will not appear possible application of foreign law.

Third, "<(Trial>> Notice of Private International Law section 178 adjustment of objects and the related amendments defined reasons.

<<(Trial>> Article 178 of civil relations with foreigners only in the "foreign factors" aspects of the definition, and which is not entirely foreign elements, not to take into account whether the application of foreign law.

In my opinion, learn civil law (legislative style of the draft read as follows: Links to Research Papers Download http://www.hi138.com of the following circumstances, the foreign relations of civil law
(Yimin commercial legal relationship between parties are foreigners, stateless persons, foreign legal persons, other foreign organizations, foreign countries, international organizations,
(B side of the home civil and commercial legal relationships, habitual residence or place of business in different countries,
(Sanmin commercial legal relationship between the subject matter outside the territory of the Republic of China, or the subject matter controversial cross-border movement
(D produce, change or eliminate the fact that civil law and its legal name in the Republic outside the territory of China.

But the following types of foreign-related civil and commercial legal relationship is not between the Civil and Commercial
(A behavior of the event rather than the formation of foreign-related civil and commercial relations.

(B, including the country's legal system under the on-site transactions. If the foreign country, including travel, accommodation, shopping and so on.

(C Because of the strict territorial limits, within the country can not recognize the validity of foreign law, or the effect of foreign law does not involve the kind of foreign-related civil and commercial relations.

(Four specialized entities with the domestic foreign-related civil and commercial law relationship adjustment.

People's Republic of natural persons, legal persons and other unincorporated organizations and foreign legal persons and other unincorporated organization in the PRC, made to perform the following contracts to be governed by the laws:
1, the joint venture contract,
2, Sino-foreign joint venture contracts,
3, Sino-foreign cooperative exploration and development of natural resources,
4, Sino-foreign cooperative development of housing and land contracts,
5, foreign natural persons, legal persons and other unincorporated organization contracted business in the PRC, the People's Republic of contract.

Reasons: a clear set of foreign civil and commercial relations, "foreign factors", and appropriately increase the principal factors in foreign-related factors, and the objective connection point object to help identify the legal relationship between the judge the appropriateness Moreover, the residence of the parties, the usual nationality of the parties in dealing with housing, civil rights, behavior, etc. has been the trend. the party's habitual residence or place of business has become to deal with civil and commercial legal dispute is most closely linked to important considerations. these objective signs links increase the benefit limit the discretion of the judge.

Some countries have adopted "Minshanggeyi," the legislation, while others are "civil and commercial division," so that the adjustment of national civil law civil and commercial legal relationship between a narrow width. Adjustment of private international law is the law of international civil and commercial relations, not only Taking into account one or laws of some countries, but should view on the general civil law countries of the world up to consider in order to determine the scope of private international law. only emphasizes the differences between national laws, private international law there can be unity adjustment of the object, defined as foreign-related civil and commercial relations are very necessary.

Application exclusion of private international law to adjust the object of appropriate restrictions are necessary. Whether it involved the use of foreign law limits the effectiveness of the method of exclusion, because some foreign-related civil and commercial relations between seemingly the adjustment should be the object of international private law, but Since only the law of the land, does not involve the application of foreign law to force the issue, they do not exist between the laws applicable to conflicts. So do not belong to the Object of private international law. At the same time be the judge shall also help to better identify the legal relationship, for law.

IV, Conclusion
On Private International Law of the Object of Research is the cornerstone of private international law, foreign-related civil and commercial relations should be defined both positive and negative, while the standard is to use private international law is not only with foreign elements, but also to the possible application the question of foreign law, according to two criteria to be defined is no doubt of its more reasonable and scientific.

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"3" Zhao Xiang-Lin editor <"International Private Law FORUM - theoretical front, legislation and judicial practice of>> Higher Education Press, August 2005 edition.

"4" Zhao Xiang-Lin editor <"China Private International Law Legislation Research"> China Politics and Law University Press in October 2002 the first edition.

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