The Principle Of Evasion Of Law

The evasion of law,as a means to escape the application of law,which has been recorded in various of history books,was given wide attention until the L' Affair Princess de Bauffremont,by the scholars of international private law.While,in the judicial practice in France and other countries with alike law(such as its previous colonies),the forbidding of the evasion of law remained as a basic international law system.The other countries of the continental law system paid more attention to the forbidding and relevant legislations.After French courts canceled the review to the laws applied to foreign countries,the decline of the forbidding system began.The legislations of the evasion of law in China remain argumentative,for example,the opinions from the standing committee of the National People's Congress and the Supreme people's court encounter.The 194 th Article of the enactment by the Supreme people' court,the Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China(For Trial Implementation),stipulated the forbidding of the evasion of law in 1988,but in 2010 the standing committee of the National People's Congress enacted,Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships,,which didn't adopt the forbidding,after two years in 2012 the Supreme people's court recovered the forbidding in its enactment of The Interpretations of the Supreme People's Court on Several Issues Concerning Application of Law of the People's Republic of China on Choice of Law for Foreign-Related Civil Relationships(I).The forbidding of the evasion of law still remains as a problem in the theoretical circle,one point takes the forbidding as a category in the public order rather than an independent question of the international private law,while another point takes the forbidding as an independent means to maintain the mandatory of the domestic laws of each countries.The updated research results bring in the system of direct-application of laws to replace the forbidding,somewhat as a resolution to the forbidding and more simplicity to application of laws.Seemingly the forbidding of the evasion of law gets a theoretical answer.But,in 2012,accordering to the survey results and trial experience,the Supreme people's court reactivated the forbidding system again in its enactment of The Interpretations of the Supreme People's Court on Several Issues Concerning Application of Law of the People's Republic of China on Choice of Law for Foreign-Related Civil Relationships(I).Thereby,here comes the paradox between theory and practice,to the system of forbidding the evasion of law.The contradiction between the theory and practice of the evasion of law in China essentially reflects the severe disconnection between law theory and social practice.The transplantation prevails in the law theory circle,some scholars do not research into the original social conditions of the direct-application law,neither analyse the relevant cases,and are only satisfied with hearing and tasting of the forbidding,which leads to the abandon of the forbidding,somewhat to the abuse and deviation in the judicial practice.Here comes the dilemma of the forbidding of the evasion of law in China,and it is hard to get a resolution for all kind of cases and theory in the judicial circle.But,how to?The dilemma of the forbidding reflects the uncover from the judicial definition to its practical cases.The law scholars in China give an authoritative definition to the very forbidding of the evasion of law as such: the evasion of law,also known as the fraude a la loi,or fraud to establish a connection point,it refers to the parties of the foreign civil relations to use a conflict Norms,deliberately create a connection point,in order to avoid the law should be applied,so that the law of their own to be applied to a way to escape or inact.The definition of Chinese evasion of law was originally derived from The case of L'Affair Princesse de Bauffremont,was a famous case of private international law on 18 March 1878,the Cour de Cassation of the French.Compared with the definition of evasion of law,the following inconsistencies can be drawn: the subject is not a party to foreign civil relations,the non-use of conflict norms,the use of criminal concept in civil cases,the concept of "intentional" of criminal law been used to the civil cases,open to the charge of the infringement Too."The parties make the connection point" and “the L'Affair Princesse de Bauffremont” does not match,“apply to the law of their own benefit,” the formulation is on behalf of the parties to make judgments.in the practice,the dilemma of evasion of law is the abuse of the concept of the anti-evasion of law to civil case.China's court has issued a number of cases of evasion of law: the case about Procedures for the Administration of Guarantees Overseas By Institutions Within the Chinese Territory,are based on mainland China's external guarantee without the approval of the Foreign Exchange Administration,was identified as invalid! Making it an implicit obligation of the guarantor,but to an excuse not to take responsibility,in violation of the principle of justice of the law.In the evasion of law,the judicial interpretation of the existence of evasion of law does not comply with the legislative law.legally identified as invalid.Article 104 of the Legislation Law of the People's Republic of China stipulates: The interpretations on specific application of law in trial or procuratorial work as developed by the Supreme People's Court or the Supreme People's Procuratorate shall primarily involve the specific clauses of laws and conform to the objectives,principles,and original meaning of legislation.Under any of the circumstances as set out in paragraph 2,Article 45 of this Law,a request for legal interpretation or a proposal for developing or amending a relevant law shall be submitted to the Standing Committee of the National People's Congress.And the prohibition evasion of law is part of the provisions of paragraph2 Article 45 of the Legislative Law: a request for legal interpretation or a proposal for developing or amending a relevant law shall be submitted to the Standing Committee of the National People's Congress.So it should be invalid in jurisprudence.And the correct approach should be made a proposal to the Standing Committee of the National People's Congress to develop and amend the Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships.on the application of law,The social dilemma of evasion of law is that Chinese law can't cope with the severe reality of evasion of law.Because our country to the reality of the evasion of law is in the two domestic laws or regulations to evade,and with judicial interpretation of the evasion of law is very different.The system of mandatory law can not replace the forbidding of the evasion of law.There are two reasons: first,under the tradition of the continental law system,the application of any law is conditional,including the application of the of mandatory law,but when one party circumvents the mandatory application of the law,makes a compulsory application,in this case the law must be circumvented.Second,the law of mandatory application is essentially the one of precedence,but when there are two or more laws to refer,the party chooses to circumvent the two parallel ones,for example,when the Enterprise law and corporate law to circumvent,mandatory application of this system can not solve this legal conflict.So prohibiting the law to circumvent,becomes blocked,the solution is to rejust the law to circumvent the detour characteristics,the party applies the legal conditions to the investigation,to find the problem,and correct it.From the logical relationship point of view,the law to circumvent and prohibit the legal circumvention is a one-to-one relationship,the legal circumvention and compulsory application of the legal system are crossed but not inclusive of the relationship between the two systems,so they can not replace each other,but should be mutual inclusive relationship.As our jurist Xu Chongli ever pointed out: "We can not mistakenly believe that there is no mandatory system of rules,there is no need to have a legal circumvention system,because the two are not covered with each other,inclusive between each other.”There are three characteristics of the evasive law.First,the means of law of evasion is civil in nature,but it is circumvention of administrative law.An interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Law of the People's Republic of China on the Application of Law on Foreign-related Civil Relatives(1)Article 11 summarizes the nature of the law to be circumvented as "the mandatory nature of the laws and administrative regulations of the People's Republic of China Regulations ".Step by step to examine the civil law has been circumvented,in fact,which is related to liquidated damages,tort,marriage,labor relations and other strong managemental laws.It can be seen that the nature of the law to be circumvented is administrative.Second,the legal circumvention before and after the implementation refers to different administrative laws.Legal circumvention is the creation of new legal conditions,to change of the original law to apply to the basis to meet their own conditions,or to make it inconsistent with the applicable conditions of their own.Third,the law evasion behavior has its two sides,the destruction side,and while to promote the perfect side.The law evasion undermines the uniformity of it.The different laws are applied between the circumvention and the non-circumvention,which causes the administrative legal adjustment to diminish or even to fail,which cannot achieve the legislative purpose,and produce new unfair.This is the negative side of legal evasion.The law evasion also promotes the improvement of it: through the avoidance of unreasonable and unfair laws,the state is modified and the law is further improved to achieve the effect of legal convergence.The nature of the law circumvention in private international law,although the situation is more complex,in essence is still the class struggle,but the oppressed class takes advantages of the national contradictions among countries,the development of advanced and backward contradictions only exit.Including the national economic development imbalance and the emergence of advanced and backward contradictory sides,it is still a simple struggle against national rule,of national economic development imbalance.What is more complex mixed with the struggle among countries,a mixture of class struggle and technological competition? In short,no matter what kind of legal circumvention is the destruction of the ruling order,the international economic order behavior exit.Legal circumvention is related to the economic base,and upon each economic basis,there is a conflict of interest between the proprietor and the proletarian,each economic base has a major legal circumvention that corresponds to.At the same time,the ruling class will circumvent the law,especially in the feudal society,princes and emperors,the Qing dynasty and the feudal princes with the strength of the growth and decline,there was legal circumvention.But in the capitalist society,the capitalization mastered all social resources,personal ability,knowledge even capitalization,the application of large data,fair competition environment,which makes the community gradually transparent,promotes social democratization,members up and down mobility.The people's national identity to strengthen,coupled with the modern information technology in the application of social management,makes the people want to circumvent the law.Within the socialist state,due to its coexistence of various economic components,there are inconsistencies in various economic interests,and prone to legal circumvention.However,in any society,social nature is determined by the main mode of production,the country's classification management system is prone to legal circumvention.If a country wants to implement a strategy,due to the tilt of the policy,it will enable special industries to enjoy special policies,which will lead to legal circumvention.Such as,China's new energy vehicles in the government subsidy policy,attracted some car manufacturers to cheat subsidies,including the Sino-foreign joint venture Suzhou Jim West Bus Manufacturing Co.,Ltd..There will be competitive countries specifically to avoid China's special policies,for example,Chinese enterprises overseas acquisitions,which are mainly aimed at foreign companies leading technology,but after the completion of mergers and acquisitions,unnecessarily to act level of technology,which is most likely the main technology extract,then leave the general technology.Legal circumvention in international private law is circumvented by international factors.It can also be divided into two forms: legal circumvention and legal typhoon.The former emphasizes the law that is circumvented,which focuses on the law of improper use,including legal circumvention and theft of the law,such as the case of Princess Baldimore.The generalized law circumvention refers to all acts of evasion,including evasion of jurisdiction,circumvention of jurisdiction and circumvention of it.Which evades jurisdiction can constitute a crime,by criminal law and order.The circumvention of jurisdiction is a circumvention in the law of private international one,which is resolved by the recognition and enforcement of foreign judgments,and rulings.Legal circumvention can be divided into the use of conflict norms to avoid and not to use the conflict norms to circumvent,conflict law,in which legal circumvention is only a small part.Legal circumvention in private international law refers to the manufacturing conditions with foreign factors,the use of legal differences,the application of laws,and the destruction of classified management behavior.It should be noted that in the case,there is no legal circumvention.The reason is that case law is different from the applicable means of statute law.In the case of precedent,the judge should choose from a large number of cases in which are most similar to the case.The case can not be determined by the judge in advance.The law is a prerequisite,the fact is a small premise,the decision is the conclusion,the process of applying the law is actually logical reasoning,so the parties can manufacture legal or applicable conditions,circumvention or tyranny law.In the case law there is no legal circumvention,written law has its legal reasons to avoid.Of course,the case law countries also have a law,such as tax law,there is a legal circumvention on this particular industry,but also to circumvent the jurisdiction of the law to circumvent.The study and research of the evasion of law is of particular significance to contemporary China,and the avoidance of circumvention by law determines the form of legal circumvention.In China if we give foreigners super national treatment,the law of the circumvent is to fake foreign investment in the so-called "return home with investment",the domestic law of foreign investment is burglary.With the strengthening of national technical force,the national treatment for the highest treatment of foreigners,foreign investment in China get no special interests,some areas may be limited.The legal circumvention of the form changes,foreigners cannot fake Chinese law to circumvent.Therefore,in the development related to foreign laws,regulations,regulations,we must take into account the law to circumvent the effect of diminishing law enforcement,and in accordance with the competitive deductive path,the results of anti-circumvention will be set.Broadly speaking,the study and research of the forbidding of evasion of law,is the introduction of law theory into its enforcement after the next round of thinking competitive deduction.As in the "Art of War of Suntzu",On wars: he who makes full assessment of the situation at the prewar council meeting in the temple is more likely to win,he who makes insufficient assessment of the situation at meeting is less likely to win.may the situation be considered or not? As I can see,the outcome is clear!...