Comparisons Of The Applications Of Connecting Points Of Personal Law

In private international law, the establishment of the connecting point of personal law has a direct relationship to the vital interests of the parties which are in the foreign-related civil and commercial legal relationship, and plays a decisive role in the foreign personal private law relationship. Because, applying different personal law standards in the determination of the applicable law of the same foreign-related civil and commercial relations, often comes to different and even diametrically opposite results. Moreover, the connecting points of the personal laws in different countries have different standards in the determining, such as the determination of domicile and habitual residence. Thus, even using the same connecting point of personal law in the determination of the applicable law of the same foreign-related civil and commercial relations, may also be obtained inconsistent results. In addition, each connecting point of the personal law is an important basis for determining the foreign-related civil legal relationship and for determining the international jurisdiction. Therefore, the connecting points of the personal law in private international law is of great significance. However, the current academic study of this issue focus on different points, less comprehensive and systematic, especially lack of comparative study on the established principles and specific applicable method in the applying the connecting points of the personal law. In addition, the discussion of the standard for determining the habitual residence is not enough. Thus, enhancing the in-depth study of the connecting points of the personal law is undoubtedly important and necessary.In the "nationality" concept was not the dominant Era, Domicile was the first standards for determining the personal law. From the13th century’"Theory of Statutes" to the promulgation of "The French Civil Code of1804", it had beening served as an exclusive connecting point in personal law for about600years. However, the promulgation of "The French Civil Code of1804" breaked this situation, and the nationality as a connecting point for the first time been introduced in the law. Then been advocated by the Italian political scientists and jurists Mancini, it quickly be established in the continental European countries as the connecting point of the personal law. This was called "the lex patriae doctrine". Meanwhile, Anglo-American common law countries still adhered to domicile as the connecting point of personal law, this been called "lex domicilii doctrine". Since then, the two legal systems have significant differences in the establishment of the issue of personal law standards. Later, as the economic and social development, more and more people go out of the country and settled abroad, even where their lives are no longer returned, then the contact with the country of domicile is more closer than the State of nationality. Therefore, some civil law countries such as Switzerland, have changed the previous practice, no longer insist on nationality as the exclusive connecting point of personal law, while at the same time adopting the domicile as a connecting point also. But the conflict of nationality and domicile, after all, hindered the process of unification of private international law. Therefore, in order to solve this problem, because of the international community’s efforts, a new connecting point which called habitual residence emerged for the determination of the personal law. It mainly be used in a series of international conventions adopted by the Hague Conference on Private International Law at the begining, latter been used by more and more domestic legislation. Since then, the standards for dertermining personal laws are nationality, domicile and habitual residence. Then how to apply these connecting points of person law? After a Comparative Study of24countries or areas related to private international law legislation and24conferences of private international law, concluded that:First, most countries in the issue of the establishment of the connecting point of personal law wre very cautious, generally opposed to adopt the single selection system, that is not absolute to adopt any one of the nationality, domicile or habitual residence as the unique connecting point of person law in dertermining the applicable law of all personal matters, instead tend to adopt different connecting points by applying different methods according to difference situations, this was called multiple selection system. Second, on the specific applicable method for each connecting point, are generally not using a single connecting point, the method be used more is to make one of the connecting point to the main and be the first choice applicable, and the other connecting point as a complement be followed applicable; or adopt the arbitrary choice method, make two or more connecting point as a parallel connecting points to apply by arbitrarily chosen. Thirdly, as to the habitual residence, generally as the supplementary connecting point of nationality be followed applicable, or side by side with nationality, domicile be arbitrarily chosen to apply, and less as the preferred connecting points or single connecting point to be used.Therefore, we can predict that the frequency of habitual residence as a connecting point in the International Private Law will be getting higher and higher, and the status and role of private international law will thus be continuously strengthened. Nevertheless, we can assert that habitual residence in the future for a long period of time, whether it is in common law countries, or in civil law countries are not absolutely replace the nationality or domicile and become the sole criterion for determining personal law, it is mainly as a secondary connecting points to be applied, especially in the traditional area of personal law. Because personal law are the applicable law accompanying the person, which should be a degree of determinability considerations. However, the concept of habitual residence is not yet clear or uniform definition, so the task or power for defining the concept falls on the body of the judges. Too much discretion is hardly balanced the relationship between the stability or predictability and the flexibility of the law.China in2010issued "the Law Applicable Civil Relations with Foreigners", this is the first single legislation on private international law, and is of great significance to the establishment of the national legal system. By statistics and analysis of each provisions of the Act we can found:the Act on the establishment of connecting point of personal law adopted the multiple selection system, which is very worthy of recognition. The law, however, extensive use of "habitual residence" as a single or preferred connecting point in determining the applicable law for matters related to; nationality emerged as a complementary link point; and the domicile link points have never been adopted.This practic of disregarding of the domicile, contempting nationality and excessive reliancing on the habitual residence on the establishment of connecting point of personal law would be difficult to find a reasonable explanation. Moreover, habitual residence is a connecting point of the personal law which can not find a reasonable basis for our legislation, and also be inconsistent with international terminology. There lacks of connecting point in the specific application of personal law. However, the promulgation of the law of is the crystallization of the hard work of many people, should not simply blame only, and the purpose of the study is to better to improve it. The urgent task is to determine the definition of the concept of "habitual residence". Reference to the determination of the concept of "habitual residence", which be internationally accepted, there are two main standards:one is the subjective criteria, which requires a certain degree of settled intention; the other is the objective criteria, which requires a comprehensive analysis of the objective experience and specific environmental. The subjective criteria make it easy to become a technical terms as domicile. But the objective criteria emphasize the substantial connection between the parties and a certain region, and this is consistent with the closest connection principle in private international law, also makes habitual residence is easy to determine. It is suggested that our judicial practice to take the second standard is appropriate.