Study On The Private International Law Cases In The Period Of Republic Of China

In the history of Chinese PIL,the Republic of China(ROC)is an extremely important historical period.In this period,legislation,justice and academic research of PIL began to unfold on a large scale,and had achieved gratifying achievements.In terms of justice,PIL had been used to guide trial practice and led it own way in history.The courts of ROC had left us rich case materials of PIL.To discover,sort and study this cases materials,and to sum up its successful experience and lessons of failures,can give us a historical mirror for our PIL judicial practice.This paper is divided into four chapters:Chapter one discusses the background of the PIL cases of ROC.This Chapter mainly discusses the political and economical backgrounds of the PIL cases,the judicial organs and legal systems of ROC,concession and consular jurisdiction,etc..The emergence of PIL cases couldn't be separated from historical backgrounds,where political and economic conditions are particularly important.In ROC,the governments and the industry had attached great importance to attracting foreign investment and overseas Chinese investment,revitalizing the national industry and commerce,and held two national business meetings for it.Foreign investment and international economic exchanges were the important conditions of PIL cases.In addition to the Supreme Court had a stronger trial team,local judiciaries were all faced with the plight of talent shortage,especially inland court's transformation had not been completed,and all these had a fundamental impact on the quality of the trial of PIL cases.The law system of ROC was the legal basis for the trial of PIL cases,and in addition to the Regulation of Applicable Rules,the supreme court(Da Li Yuan)created several PIL precedents in early times of ROC,and this also had played an important guiding role in the trial of PIL cases.In the period of ROC,the concessions and consular jurisdictions were widespread,on the one hand,the setting up of concessions had an indirect stimulation on the happening of PIL cases,and on the other hand,the establishment of consular jurisdictions made many PIL cases which might have been governed by Chinese courts had been governed by the consular courts of county which had enjoyed jurisdiction in China.The PIL cases of ROC emerged under the interaction of these factors.Chapter two discusses the application of law of the PIL cases.This chapter depends on the special situations of the PIL cases of ROC,mainly chooses the cases on marriage,contractand tort.In commodity economy society or market economy society,contract is the basic form of economic intercourse,and so the application of law of contract is the key of the important PIL issues,and it was the same in ROC.In addition,the non-contact debt formed by tort is the important issues of PIL for ever.So,the PIL cases on debt accounted for the largest rate of all the PIL cases,and owned the largest number.In generalizing,the PIL cases on debt mainly focus on the international contract,and the tort cases were little,and then the cases on negotiorum gestio and unjust enrichment nearly had none.And for the application of law,in the early of ROC,many of the debt cases applying the law based on the PIL theory popular internationally.Of course,the academic theories of different countries were unambiguous,and judges could consider China's national conditions,trading habits and customs.And,on the one hand,it could hold a highly flexibility for the applying of law,which should be treasured when the conflict rules were less of flexibility;on the other hand,applying different applicable law to the same cases was inevitable,and made laws lacking of uniformity,consistency and predictability,and would hinder the development of international economic intercourse.In ROC,in many coastal port cities,especially in Shanghai,there were many foreigners.So,a lot of foreign-related marriage took place.And,article 11 of the Regulation of Applicable rules provides,foreign-related divorce should apply Chinese law and the law of the husband's country doubly.So,if the husband of the marriage was a foreigner,the case should apply foreign law.Foreign-related marriage cases are the very good materials to study PIL cases of ROC,so,this chapter uses many marriage cases.Chapter three discusses how the cases give expression to the basic terms of PIL.In PIL theories,basic terms refers to some fundamental issues existing in the course of choosing applicable law,such as characterization,renvoi,ascertainment of foreign law,evasion of law,the reservation of public order,and they are the key issues in PIL.The PIL cases of ROC had given some expression to the basic terms,but to the historical limitation,the expression differed obviously from one term to another.From the case materials collected,the ROC courts attached great importance to the ascertainment of foreign law,not only the court would demand the parties to provide related foreign law,and some time the court itself would investigate it.Especially,the Shanghai high court collected civil laws of different countries through every way they could,in order to look to it in case.But relating to the reservation of public order,there were little cases,and to other basic terms,there were nearly none cases.So,this chapter mainly discuss the ascertainment of foreign law,and the discussion of other terms is relatively briefly.Chapter four discuss the problems and enlightenment of the PIL cases of ROC.The problems concentrates on the application of the conflicts rules,which formed by two aspects,one is non-application of conflicts rules,and the other is to apply the wrong conflicts rules.And for this,it mainly because the judges' ability is different.In addition to the supreme court had very capable judges,local courts were short of legal professionals,not to mention judges specialized in PIL.Today,we are facing the plight of he judicial practice of PIL,and the PIL cases of ROC can give us enlightenment in many aspects,mainly having the courage to explore the methods to ascertain foreign law,promoting the sanitization of PIL theory,and publishing guidance cases,etc.The main purposes to study the PIL cases of ROC is to inherit the excellent achievements of the judicial practice of PIL in our country,and it promote to develop forward continually in the new historical era.