The Impacts Of Constitution On The Conflicts Of Laws

In recent years, there are two main issues discussed by Chinese scholars: One is the theories and approaches of Choice of Law appeared in American Revolution on Conflicts of Laws; the other is the harmonization of laws among different law districts in China. As to the first issue, there are many introductive articles. Someone realized that the genius of American Conflicts Revolution is the trend that the theories and approaches of Conflicts of Laws in America has tended from thinking much of "conflicts justice" or "choice justice" to "substance justice" or "result justice". On the other hand, our study on interregional conflicts of law is limited by the thought pattern of "One country, two systems", has not yet contributed any suggestive opinions to the interregional justice corporation. Both of these two issues are connected to the constitution. As basic law, the content of constitution has influence and constraints on other laws, so to the conflicts of laws.This article mainly discuss following questions: The reason why constitution may influence conflicts of laws? What content of constitution may give effect to it? What influence has constitution attached to it? And by what method or track does constitution influence it. Based on above, some legislative suggestions are given to the constitution according to the character of conflicts of laws in our country. The discussion is divided into seven parts as follows:The first chapter discusses the connection between constitutional law and private law based on primary theory in order to looking for the reason and ground why constitutional law may influence and constraints conflicts of laws. Constitutional law mainly regulates two aspects: One is the distribution of power and the format of government. The other is the protection of basic rights of people. The conflict of laws arises from different extents of the distribution of power and different formats of government, so to the legislative power and jurisdiction. This gives effect to the method of solution on conflict of laws directly. Conflict of laws mainly appeals to be the conflict of civil and commercial laws. It is in fact the conflicts of basic rights of people in different law districts. This is also the main content of constitution. It is the main function to protect human rights by the statusof basic law in constitution. Constitutional law may influence conflicts of law in this aspect. The status of basic law of constitutional law is guaranteed by the system of unconstitutional review. It is this system set up a bridge for constitution to affect conflicts of law.Different constitutional thoughts in history may affect primary theories of conflicts of law. This is discussed in Chapter two. Although there was no modern constitution in Middle Age, the constitutional thought about the construction of country or government has already existed. The father of the theory on city status, Bartolus expressed his opinion about the power and construction of a country through his book-"treatise on city government". He concluded the theory of different city statuses based on his analysis about city government. With the flush of the thought on sovereignty, local law doctrine became another theory on application of law. Maybe it is not complied with the need of intercourse among different countries, but the thought of sovereignty gave rise to the doctrine of international comity, which explained the reason of the application of foreign law in some extent. Accomplished with the care of human rights in constitution, Mr.Dicey introduced vested right from American constitutional practice into conflicts of law. That doctrine replaced the super status of international comity in the field of application of law. Also with the thought of liberty and right of people in constitution, the doctrine of party autonomy has been used in a wide scope in conflicts of laws. Different theory on the application of law complied with different constitutional thought.Chapter three discusses the influence and constraint of modern constitutional theory on today's grounds and methods of application of law. The local law doctrine under the thought of absolute sovereignty began to criticize the character of blindness in the rule of choice of law since the American Revolution on conflicts of laws. Since then, a lot of approaches on the choice of law prevailed in the United States. All these approaches lean to the result of human rights protection between the balances of justice on rule or result. These show the influence of modern thought on human rights protection to the theory and approach of conflicts of laws. Under the theory of balance on power, the system of unconstitutional review becomes a bridgefor constitutional law intervening conflicts of laws. In the United States, some constitutional clauses become the constraints of the rule or approach of choice of law. In some European countries, such as Germany and Italy, the influence of the clauses of human rights protection in constitution results in the modification of rules in choice of law through the system of unconstitutional review.Chapter four analyses the conflicts of laws under different constitutional systems. The constitutional system includes the extents of distribution of legislative power and judicial one between central government and local government. It has direct connection with the reason and character of internal conflicts of laws. Different internal law districts are produced by the constitutional aspect on the distribution of government powers. Meanwhile, it also affects the validation, explanation and application of international private treaty if the distribution of central power among legislation, administration and judicature. Even to the judicial power concerning with foreign elements, different country may has different jurisdiction owing to constitutional system.There are some constitutional clauses may influence the conflicts of laws. In the United States, there is no unique federal legislation on conflict of laws; it is states that have the power to stimulate private law in main areas. And States also have the judicial power. So some clauses are used to constraint state's conflicts of laws. Chapter five introduces the constitutional clauses which may affect choice of law in the United States. The Due Process Clause and the Full Faith and Credit Clause have influenced the state's legislation and judicature on conflicts of laws directly in many aspects. The Unfair Discrimination Clauses require that the legislation on choice of law and approaches should comply with the protection of human rights in constitution. The Commercial Clause provides the power for central government to stimulate unique acts in the trade field. Meanwhile, it plays a limited role in constraining state's legislative act and judicial act on commercial distribution.Chapter six introduces the practice of other countries that constitutional clauses may influence the conflicts of laws. Canada and Australia are also federal countries. The conflict of laws in these countries succeeded to the UK, but not the one of the United States. The doctrine of geographic limit in their constitution becomes themain method to harmonize interregional conflict of laws as the constraint of constitution on provincial legislation or state one. In Germany and Italy of the continental law system, the rules of choice of law are influenced directly and modified eventually by the clauses about human rights protection in constitutional law,though interregional conflict of laws are not so serious. These owe to the unconstitutional review system. The constitutional clause has little influence on conflicts of laws in France because there is no judicial review system on the breach of constitution.From the view of conflicts of laws to analyze the constitutional law in our country is the task of Chapter seven. Our constitution also give some power to local legislative unite in mainland. These local legislations may be conflict with one anther apart from conflicting with national law or national administrative statute. In the past, as local legislative organ seldom exerted their power, the conflicts of local regulations didn't absorb the notice of constitutional circles and private international law ones. There is little rule on the limit and harmony of conflicts of local regulation. Accompany with the enhancing of democracy and the fare well of our legal system, local legislation would be more active. This article concludes some constitutional principles limiting the conflicts of local regulation and gives some suggestion on the modification of our constitution. Apart from this, after Hong Kong and Macao coming back to China, our country become a plural-legal states owing to the "one country, two system" policy in our constitution. So the interregional conflict of laws should be resolved by the stipulation in our constitution, but we have no such clause in constitution yet. The author gives some suggestions to the constitutional principles and the modification of our constitutional law in order to resolve the interregional conflict of laws. Without the constitutional clause and the constitutional review system, we cannot harmonize the conflicts of local regulation and interregional conflicts of laws. So the writer asserts that we should set up constitutional review system in China and give some suggestion to it at last.