| Since the humanity entered the 21st century, as a result of the development of science and technology and the advance of globalization movement, the international society has entered to a silicon, computers and network-based information age. As a connecting factor of private international law and the basis of international civil jurisdiction, nationality encounters the unprecedented challenge. With the deepening of China’s reform and opening up and rapid economic development, China’s foreign relations have become increasingly frequent. The reform and even enactment of new act and regulations of Chinese private international law are extremely urgent. Among them, as an important connecting factor of lex personalis, research on nationality is of particular importance.Nationality and state exist concomitantly, but the legal sense’s nationality is the product of the bourgeois democratic system. In the narrow sense, nationality refers specifically to the nationality of natural persons. It is defined as the legal qualifications of natural persons belonging to national or citizen of a state. It indicates that there are fixed legal relation between one person and some specific state. It is the legal basis that some states exercise diplomatic protection. But from a development perspective, the concept of nationality has some breakthrough at present, not only including the nationality of natural persons, but also the nationality of artificial person such as legal person, even including the nationality of some objects of legal relationship. In other words, nationality refers to the legal relationship of the natural persons, legal persons, ships, aircraft and certain property when they have the specific legal relationship with some specific state, according to the principles of international law, domestic law of that state exercise jurisdiction.There are relationships and differences between the concepts of nationality and citizenship, region nationality and global nationality etc. Nationality mainly emphasizes the legal relationship that someone subjects to some specific state, and the key point lies in the stipulations of the legal rights and obligations; citizenship is focused on an individual’s enjoyment of their political rights. Nationality and citizenship are referred to the same in today’s nationality law field. The two proposed concepts of regional nationality and global nationality have manifested various theorists’thought on the regionalization and globalization trends of the nationality at present and in the future. System construction and legislative practice in region nationality are both in already embryonic form, but the global nationality is still in the phase of theoretical ideas. In any event, the two concepts deepened our interactive understanding of nationality system and enriched the connotation of nationality system.The nationality plays a great significant role in the private international law. In the field of choice of law, whether natural or legal persons, their international civil and commercial relations between the parties are often governed by the lex personalis, i.e. lex patriae and lex domicilii, which are also the two major principles of the lex personalis. Therefore, the nationality is an important connecting factor in the course of the international civil and commercial cases. In addition, nationality is an important jurisdiction basis, particularly in the states belongs to Latin legal system. Nationality is also an important standard for the foreign judgments in the recognition and enforcement of foreign judgments. Meanwhile, the nationality plays a unique role in determing the civil legal status and civil action legal status of the alien and the international commercial arbitration.The nationality belongs to the domestic matters of each sovereign state, and all states have the right to determine who their citizen according to their own laws is. Different states, even an identical state in different historical period adopts the dissimilar principles and the rules when formulates its naturalization laws, which causes the conflicts of nationality. The conflicts of nationality of natural persons is embodied in two kind of types, one is a person who has two or more states’nationalities; the other is a person who has none state’s nationality. The former is called positive conflict of the natural person’s nationality, and the latter is called negative conflict of the natural person’s nationality. There are two methods to solve the conflicts of nationality of natural persons in the private international law. First, the substantive law method, the states conclude the international treaty stipulating explicitly provisions to avoid and eliminate the multi-nationalities and the stateless phenomenon; Second, conflicts of law method, namely, if it is unable to solve the multi-nationalities and the stateless conflict, the law determined which nationality for its nationality to determine the parties’lex patriae.In private international law, the legal person nationality’s conflict is referred to as a legal person simultaneously to have two or two above states’nationalities as well as a legal person does not have any state’s nationality. That various states establish the legal person nationality according to different standards is the primary reason for the conflicts of nationality of the legal persons. In sum, various states establish the nationality of the legal persons according to such standards as the legal persons’ residence place theory, the legal persons’registration place theory, the capital control theory and the mixed standards theory. Because there is no uniform standard to determine the legal persons’nationality in the international society, various states determine legal person’s nationality from their own interests, and the standard is by no means irrevocable, but make the corresponding change along with their own economy, the political context and international environment’s change. According to whether involve the states’own interests, there are two methods to solve the positive conflicts of the legal persons’nationality: When the court seized has the stake to the action, this state’s court will generally determine the national law to the state’s advantage as lex patriae; When the court seized has no interest relationships in the action, there are several methods such as the approximate principle theory, the successive time theory, habitual residence theory and the closest relationship theory.Nationality of the ship is a legal identity, which means that the ship owner registers the ship in accordance with the state’s ship registration regulations, and obtains its certificate of nationality issued by that state and navigates with the state’s flag, so that the ship is subject to registration state under. Conflicts of ship’s nationality in private international law nationality means that the jurisdiction confusion cause by a ship’s nationality uncertain or even without nationality or the difficulties in the application of the law when the nationality’s former and later change in an uncertain legal situations. As to the positive conflict of ship’s nationality, it is ought to be handled on the ship’s real link with the states, not simply in accordance with the registration’s time. As to the negative conflict of ship’s nationality, the modern international community has yet not found the best ways and means to solve the problems and it is worth more in-depth study and discussion.The lex personalis, a formula of attributio based on the connecting factor of nationality and domicile, which is used to solve the parties’status, capacity, marriage, family and succession and etc. conflicts of laws, is an unique concept in private international law. In the 19th century, with the rise of patriotism and nation-state, nationality has become increasingly important in matters of lex personalis. Under the influence of The French Civil Code, many civil law states used nationality as a connecting factor of lex personalis, and common law states still used domicile as a connecting factor of lex personalis, which formed a shelter between the lex patriae and lex domicilii. Compared to the domicile, nationality as a connecting factor is more stable; more easily determined and embodied the states’personal sovereignty over its national. In the course of specific application, lex patriae will result in many problems such as renvoi, intertemporal conflicts of laws, interregional conflicts of laws, interpersonal conflicts of laws and evasion of law.In the early private international law theory, the lex patriae merely refers to natural person’s lex patriae. Along with the development of private international law theory and the practice, the legal person, the ships and the aircraft (aviation) also enjoy certain right and undertake certain duty in the nationality legal relationships. From the nature of the legal person, whether under the legal fiction theory, contract theory or the substance theory, the legal person was the same with the natural person, with a particular state the existence of legal nature and the inevitable link. In other words, the existence of legal persons is dependent on a specific national law of a state, and this particular law is the personal law of legal person. The lex patriae of the ships is law of the flag, i.e., the ships are hoisted the banner of their respective states. The law of the flag also constitutes a fundamental principle of choice of law in the maritime conflict. The lex patriae of the aircraft is the law which the aircraft registered, i.e., the national law of the registration place.In general, in international civil proceedings, the nationality is the legal basis to determine the national and alien and the basis to accord the foreigners with the civil action status and the jurisdiction basis of international civil and commercial matters. In the international commercial arbitration, nationality issues mainly involve the nationality of international commercial arbitration award, In the practice, the states belongs to Latin legal system especially its representative France as well as those Latin American states who participated in Bustamante Code of 1928 adopt the principle of personal jurisdiction. The nationality of international commercial arbitration award refers to international commercial arbitration award as a state-specific legal instrument and constitutes the state’s legal order integral part of a legal landmark. In some state’s legislation and international arbitration conventions, the award places a decisive role in the determination of nationality of arbitration award.China’s current Nationality Law was enacted by the third conference of the fifth National People’s Congress on the September 10,1980. Prior to this, China promulgated three Nationality Acts, i.e., the Nationality Regulation of 1909 enacted by Qing Dynasty, Nationality Law of Republic of China of 1912 enacted by the Beijing government and Nationality Law of Republic of China of 1929 enacted by the NanJing government. While our Nationality Law of 1980 has repeatedly stressed that the principle of non-recognition of dual nationality, but because nationality is the domestic matters of every sovereign state, there will still be the conflict of nationality. the China’s existing legislative rules of private international law on nationality exists such defects as rough, the contents of contradictions, or even many issues in deficiency. For this reason, Chinese Society of Private International Law drafted Model Law of Private International Law of the People’s Republic of China, which played an important role in the improvement of China’s private international law, including nationality rules of the private international law. Some provisions of Civil Code (draft) are basically a copy of the provisions of the Model Law. We should combine China’s actual situation to explore the specific role of the nationality in the new situation and construct a harmonious system and improve our efforts with respect to the nationality requirement.In applicable law field of the private international law, the nationality’s role as a connecting factor will not disappear because of the advent of globalization and Internet age. Nationality as a connecting factor has its irreplaceable advantages. Especially with the advent of globalization and Internet age, the composition of the legal relationship between the various factors have shown generalization or lack of stability, and the nationality with stability and clarity is even more unique in private international law. |
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