Research On The Law Of The Conflict Of Laws On Torts

In the field of international private law, the law of the conflict of laws on torts is anancient but vibrant system. Both domestic and abroad, the theory, legislation andpractice of the law of the conflict of laws on torts went hand in hand with theinternational private law. Traditionally, because of the unitary orientation towardsconflict justice, the rule of the law of the conflict of laws on torts is manifested bymutual constraints of Lex Loci Delicti and Lex Fori. In the modern society, however,given the emergence of value on material justice, the rule of the law of the conflict oflaws on torts shows the characteristics of expansion on scope, diversification on rulesand the variety on methods. In nowadays, the development of modern law of theconflict of laws on torts become more innovative theoretically, more maturepractically and more independent legislatively. The latest developments of the law ofthe conflict of laws on torts in US and EU has become the newest driven forceimpelling it to the future. In the meantime, the act of the People's Republic of Chinaon the application of laws over foreign-related civil relationships makes Chinese lawof the conflict of laws on torts reach a new height in2010. Hence, the research on thetrends of the law of the conflict of laws on torts not only contributes to the theoreticaldevelopment, but also is helpful to the international and domestic legislation.Against this background, in order to conclude the values and trends of the law of theconflict of laws on torts in different periods, this dissertation aims to research and analyze the theoretical problems, legislation and judicial practices of the law of theconflict of laws on torts in the past. The dissertation is consisted of5chapters (15sections), about260thousand characters and English words. In the full-text, thisdissertation summarizes all the basic issues and covers all questions in bothinternational and domestic law of the conflict of laws on torts in a bid to arrive thegoals of collecting the data exhaustively and building the argument as comprehensiveas possible.In the part of introduction, the discourse develops through the angles of topicselection, the literature review, the research methods, the innovation and deficiency.The author believes that it is great theoretical significance that dividing the history ofthe law of the conflict of laws on torts into traditional, modern and contemporaryperiods in a bid to analyze the different characteristics and values respectively andthen to discuss some problems with peculiarity. At the same time, against theflourishing background, it is high time analyze the future trends of the law of theconflict of laws on torts. After conducting the comprehensive analysis of the researchachievements both domestically and abroad, the author considers that though theChinese scholars have made tremendous progress on this subject, their research is stilllagging behind of foreign scholars substantially. Hence to adopt the way of combiningthe domestic and international findings systematically is useful. This study uses themethods of historical research, text examination, comparison as well as case study andstatistical analysis. Finally, this article has some innovations on the research methodand conclusion, but there are inevitably some inadequacies.Chapter one The traditional methods of choice of laws to conflict of laws on torts aimsto clarify the evolution and the position of three basic rules including the Lex LociDelicti rule, Lex Fori rule, the double rules of Lex Loci Delicti and Lex Fori intraditional law of the conflict of laws on torts through the comprehensive analysis ofthe three aboved. As the most important formula of attribution, the Lex Loci Delicti isnot only supported by doctrine of comity and vested rights theoretically, but also is reflected in the earlier practices of States and international treaties. This chapterelaborates the basis and the superiority of the Lex Loci Delicti, then makes somemethods for identification of the Loci Delicti. Even though the single Lex Fori rulewas ratified by W chte and Savigny, it is not accepted by earlier practices of theStates. Therefore, the author evaluates the rule in a critical perspective. The doublerules of Lex Loci Delicti and Lex Fori are conventions which restrict the function ofthe Lex Loci Delicti and protect the interests of Fori state. It originated from The ruleof double actionability in British law and also was spoken highly by most civil lawcountries. The reason is that this rule reflects an appropriate balance betweennationalis and internationalism and it is also the optimal choice under the traditionalvalue of conflict justice.Chapter two The modern methods of choice of laws to conflict of laws on torts tries tofully discuss the diversity of modern methods of the law of the conflict of laws ontorts by selecting modern law of the conflict of laws on torts in the U.S., England andcivil law countries. For modern American law of the conflict of laws on torts, itstarted with the criticism over the first restatement of the law of conflict of law, andthen developed in the debate among the doctrines of the American choice-of-lawrevolution. Finally, it reached the peak when the accomplishment of the compilationof the second restatement of the law of conflict of law. The Babcock case is awatershed in American judicial practice. After this case, the rules of choice of laws toconflict of laws on torts in judicial practice became more flexible and diversifiedunder the guidance of modern conflict law theories. In compare with the case in theU.S., British modern law of the conflict of laws on torts rise from professor Morris'stheory of the proper Law of tort. It is became the theoretical foundation of the Britishlaw reform (miscellaneous provisions)act in1995although it has not been echoedcompletely by practice. Since the late20th century, the codification of internationalprivate in civil law countries had given rise to the reform of the law of the conflict oflaws on torts domestically. Among the characteristics of this reform, four of these aretypical: the principle of the most significant relationship, protection of the weak, the autonomy of the parties and emergency of immediate applicable law. The reason whythere was the substantial change in methods of choice of laws to the law of theconflict of laws on torts in this period is the same direction pursued by countries in theregard of material justice.Chapter three The special issues in the modern law of the conflict of laws on tortsfocuses on three special issues in the modern legal system. The choice of law whenthe liability for breach of contract and tortuous liability come simultaneously in themodern international civil and commercial disputes has been a focal point as it notonly relates to the basic theory of the concurrence of liability for breach of contractand tortuous liability in civil law, but also has the close connection with the system ofidentification in international private law. Under this particular circumstance, thechoice of law rules on torts would be affected by contractual relationship, applicablelaw and exemption clauses. As a controversial method in conflict law, depecage hasoccupied a place in modern American law of the conflict of laws on torts. Yet mostEuropean countries hold cautious attitude to it. Therefore, based on the uncovering ofthe theoretical core of depecage, the author aims to discuss the situation and degreedof depecage. Another feature of modern law of the conflict of laws on torts isdistinguishing general and special torts as well as setting certain independent conflictrules for the latter. For the sake of summing up the characteristics of rules of choice oflaws to conflict of laws on special torts, the author uses the comparison method andselects six models: producer's liability, traffic accidents, general environmentalliability, infringement of intellectual property rights, unfair competition andinfringement of spiritual personality rights.Chapter four The developments and trends of contemporary law of the conflict of lawson torts mainly analyzes the European and American law of the conflict of laws ontorts in the new century and then reviews the trends and looks forward to theprospects of contemporary law of the conflict of laws on torts from a macro point.Among them, the American contemporary law of the conflict of laws on torts has two main trends. First, based on the critiques on the second restatement of the law ofconflict of law, scholars of conflict law present a number of programs about the thirdrestatement of the law of conflict of law, which contain a large number ofreconstruction opinions concerned with the contemporary law of the conflict of lawson torts. The second one is the synthesis and codification of the law of the conflict oflaws on torts. This trend is reflected by the complex litigation project (1993) at thefederal level. While at the state level, it is illustrated by Louisiana and Oregon's newlaw of choice of law for tort conflicts. In Europe, the EU provides a platform foruniform conflict of laws on torts. In2007,the regulation on the law applicable tonon-contractual obligations (Rome II) represents the new direction of thecontemporary law of the conflict of laws on torts. With all these facts, the authormakes detailed study to the EU regulation. Finally, the author tries to conclude thischapter by construing the future direction of law of the conflict of laws on torts aswell as making some conclusions. It includes four aspects: the codified andconvergence of the legislation, the pursuit and limitation of the material justice, theconcurrence of three choice of laws approaches and the balance between legalcertainty and flexibility.Chapter five The history and future of Chinese law of the conflict of laws on tortsmainly examines the contemporary theories, legislations as well as judicial practicesbefore making the final comments and suggestions under the precondition ofreviewing the history of law of the conflict of laws on torts in China. The seed ofChinese law of the conflict of laws on torts can be traced back to the feudal period,but the first written international private law was not implemented until1918. Afterthe founding of the People's Republic of China, Chinese legislation experienced aninitial development during the general Principles of the Civil Law and entered to amature stage in the early21st century. Contemporary Chinese law of the conflict oflaws on torts is guided by theoretical study and tested by judicial practices.Furthermore, the Act of the People's Republic of China on the Application of Lawsover Foreign-related Civil Relationships in2010brings it to a new height. Nevertheless, the author also considers that there are defects and shortcomings invarious fields such as legal sources, the legislative system, the legislative techniquesand judicial practices. Therefore, making the trend of contemporary law of theconflict of laws on torts as a guidance and making some suggestions on the futuredevelopment of Chinese conflict of laws on torts become the main emphases of thisdissertation.