Renvoi in private international law for the system of Understanding

Anti-induced restrictions on foreign law as applicable to the practice of one of the broad and narrow sense. Narrow renvoi, is for a foreign-related Civil cases, the court in accordance with their own conflict rules should apply to foreign law, and the foreign law But the conflict rules should apply to the court specified in the law of the Court applied the results of the substantive law of the forum State. renvoi broad, in addition to including the transfer induced, indirect and induced anti-foreign court said.

One. Produce conditions: Anti-induced problems arise must have three conditions.

1. That the court trying the case, it points to the conflict rules of a foreign law, both substantive law of the country, but also the conflict of laws in the country. This is the subjective condition of renvoi.

2. Relevant state conflict of laws in conflict with each other, that the same legal issues related to developing countries on the conflict rules of the connecting point is different from the surface or in the links under the same point, each point on the link to different interpretations, it is anti- To the legal conditions.

3. Relevant state presented relationship between the conflict rules. If presented relations interrupted, even though the countries have their own conflict rules that specify other country of foreign law, including the conflict of laws, have no means to renvoi. Therefore, it is anti- To produce the objective conditions.

II. China's legislation and judicial practice in the attitude of the anti-To:
Legislation from our point of view, the present mainland of the <<Civil Code "> and the Supreme People's Court released in 1988 on <<Civil Code"> of judicial interpretation, the problem is not caused by the anti-In 1987 Supreme Court expressly on the application of> a number of questions answered in the (now repealed), indicating that China's foreign contract law in determining the application of renvoi is not used. At the same time there is no judicial practice is also the case on renvoi. And in Hong Kong, Macao, Taiwan area, the application of law to varying degrees of acceptance of the renvoi.

III. On the need for anti-China legislation caused personal view:
In 1878 the French Supreme Court case on the judgments of welfare results, marking the conflict of law renvoi as an important system to be set down. After a hundred years of development, but comes to show a trend of the system: more and more countries to accept the renvoi, and through a number of specific measures to overcome its disadvantages, to strengthen its applicability.

Theorists in the domestic application of renvoi, there are three attitudes: fully accepted, there are limits to accept and reject. I am more inclined to have a limit in the domestic legislation of acceptance of the renvoi, reasons include:
1. Renvoi, without prejudice to their sovereignty at the same time, can expand the application of domestic law, to achieve the national policy embodied in the substantive law. On the other hand to reach decisions by consensus renvoi. Verdict consistent, it is one of the purposes of private international law. Anti-induced harmonic as a good way to avoid the parties choose the court to enhance execution of judgments.

2. China as a multi-national jurisdiction, each jurisdiction there is a conflict between the so-called regional conflict of laws. From the history and current situation analysis, development of a unified interregional conflict of laws difficult, and can increase induced by anti-choice of law flexibility so that each jurisdiction for their own private international law by analogy. so, but comes to Solve our system meets the needs of the international conflicts of law.

3. Admittedly, there are also disadvantages of renvoi, as the practice of "vicious circle" and so on. If its fully accepted, would have a negative impact, so the scope and variety through the limited acceptance on the play renvoi the advantages of foreign-related Civil done better safeguard the legitimate rights and interests of legal relations. Links http://www.hi138.com Research Papers Download