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The Application Of Private International Law Treaty In Chinese Court

Posted on:2013-08-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:G M XuFull Text:PDF
GTID:1226330392964628Subject:International law
Abstract/Summary:PDF Full Text Request
The key for private international law treaty to function effectively is thecontracting parties to the treaty should perform the treaty effectively, in which judicialapplication of the treaty is of crucial importance. In order to participate effectively ininternational civil and commercial exchanges and better protect legal rights andinterests of our parties, Chinese government has concluded plenty of privateinternational law treaties. Whether these treaties can be implemented effectively ornot, not only influences our reliable international image, but benefits from promotingthe contracting parties to perform the treaties. The aim of this dissertation is toprovide jurisprudential basis for our courts to correctly apply and interpret the treatiesand thereby building a judicial application system of private international law treaty.This dissertation includes four chapters surrounding how to ensure privateinternational law treaty to be implemented effectively in our courts. Firstlydelimiting the intension and extension of private international law treaty, and thisdissertation then, starting from four aspects, that is the drawing up, the acceptance, theapplication and the interpretation of the treaty, and from a comparative perspective,analyzes factors in these aspects which affect the application of the privateinternational law treaty in the court and puts forward the resolutions to them, andsums up the experiences of the developed countries in performing treaties which canbe used by our courts for reference and to establish and improve an application systemof private international law treaty of our courts.The first chapter of the dissertation studies “What is the private international lawtreaty”. Firstly, centering on the judiciary and basing on the historical development asdimension, this part, through discussing the resolution to conflict of laws, delimits thescope of private international law as the basis for defining the scope of the privateinternational law treaty. Secondly, because the goal of the unification movement ofprivate international law is to unify private laws of nations, in which the privateinternational law treaty is an important means, and because the unification movementof private international law is closely linked with the emergence and development ofprivate international law treaty, this part thus, by introducing the unificationmovement of private international law, elaborates the thought basis of the emergence and development of private international law treaty. Thirdly, after defining the scopeof private international law and the thought basis of the emergence and developmentof the private international law treaty, this part elaborates the concept, types, namesand value of the private international law treaty explicitly, by which the treaty’ sintension and extension are correctly determined. Its extension includes civilprocedural law treaty, substantive private law treaty and conflicts of law treaty, and itsintension is an agreement of states with the purpose of creating rights and obligationsin international law containing private international law rules.Chapter II discusses “How to formulate high-quality private international lawtreaty”. The international organizations in charge of drawing up private internationallaw treaty and their achievements are first introduced. And then, this part studies indetail the quality of private international law treaty and its effect on judicialapplication. By introducing and analyzing the Amonoweller Aircrash case and theBoll case, the author, from an empirical perspective, expound on the importance ofthe quality of private international law treaty to its judicial application. Thirdly, inlight of the current legislative situation of private international law treaty, the partattempts to put forward principles and means of legislation, which should be followedin formulation high-quality private international law treaty. Fourthly, the author alsointroduces in this chapter our government’s active participation in the legislation ofinternational organizations and the private international law treaty our government hasconcluded, analyzes the major problems which exist in our government’s formulationof private international law treaty, which is overemphasizing the participation ofgovernment officers while overlooking the advice of experts.The third chapter studies “How private international law treaty should beaccepted by Chinese law and its legal status in China”. Firstly, the treaty’s acceptancesystem and domestic legal hierarchy are briefly introduced. Secondly, this chapterdiscusses how private international law treaty has been obtained domestic legal effectin the U.S., the U.K., Germany and France, etc., and by introducing and studyingcomparatively these countries’ domestic legal systems, the author attempts to find outsomething in common. Lastly, the part illustrates the effect of private internationallaw treaty in China, in which our legal provisions concerning treaty’s conclusion,acceptance and domestic legal hierarchy are introduced, the effect of civil procedurallaw treaty, conflicts of law treaty and substantive private law treaty in China areanalyzed, provisions on applying private international law treaty are designed. The system Quasi-automatic adoption which is adopted in Germany and Tai Wan districtshould be in consideration when it comes to the treaty acceptance system in China. Tobe specific, in order to adopt the treaties into our legal system, on one hand, theStanding Committee of the National People’s Congress should formulate the law oftreaties when ratifying the treaties; On the other hand, the State Council should makeformulation of the Decree of the State Council when the agreements are approved.Another solution to adopt the treaties into our legal system, under the present system,is to stipulate some provision in the general provision when formulating the CivilCode, which is:“Where the treaty the P.R.C. has concluded so stipulates, the treatyshall apply. Where provisions of the treaty conflicts with civil laws, the treaty shallprevail.” Similarly, some provisions of Civil Procedure Law can be revised also.Chapter IV discusses “How China’s courts should interpret private internationallaw treaty”. The theoretical issues of the interpretation of private international lawtreaty are firstly studied. The author probes into how the courts of contracting statesshould interpret private international law treaty from the necessity, the object, the aim,the classification, the means and the rules of interpretation. And then, the practices ofinterpreting private international law treaty by developed countries such as the U.S.and the U.K. are introduced and by comparison, something in common has beenfound out. Lastly, starting from YangPing case, Chongqing ZhengTongPharmaceutical Industry case, and SiChuang Pepsi case, the author analyzes ourcourts’ practices in interpreting private international law treaty, and puts forward theidea that our courts, in interpreting treaties, should comply with the principle of goodfaith and the principle of autonomous interpretation.
Keywords/Search Tags:Private international law treaty, Acceptance of treaty, Domesticeffect of treaty, Treaty interpretation
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