| Since the 1980 s,great achievements have been made in the theoretical research of China's private international law,especially in the field of national studies of private international law.The senior scholars,represented by Mr.Han Depei,put forward that introducing the situation of private international law or conflict law in some major countries can enlarge our horizon and draw lessons from it.After that,a number of national research results appeared in China,mainly including the introduction and review of private international law theories and practices in the United States,Switzerland,the Netherlands,Australia,Canada,Germany,Belgium,the United Kingdom and the European Union.These achievements are of great theoretical value to the legislation and justice of private international law in China.The author finds that most of these achievements are concentrated in the developed countries in Europe and America,and there are few studies on private international law in Asian countries.Japan has a relatively sound legal system among Asian countries.China and Japan are both close neighbors and trading partners.We have long-term cooperative relations in the fields of economy,science and technology,education,academic and cultural fields.With more and more frequent civil and commercial exchanges between China and Japan,the civil and commercial disputes between the two sides are also increasing.Therefore,it is of great theoretical value and practical significance to understand and be familiar with the legislative concept,legal rules and judicial practice of Japanese private international law.Japan,as we know,is good at absorbing the strengths of other countries.In the Meiji Restoration period,under the guidance of the thought of "leaving Asia andentering Europe",Japan inherited German law,French law and Italian law in the field of law.After the Second World War,Japan accepted the American Law in the fields of constitution and other department laws.Since modern times,Japanese law has received a large number of laws from European and American countries,forming a unique modern legal system.The way of Japan's private international law legislation can prove the uniqueness of Japanese law.This uniqueness is what we should learn,and is of great significance to the legislative perfection and judicial practice of private international law in China.Regional studies are prone to fall into translation and introduction.Previous studies are very popular because we need to understand foreign laws and build our own private international law system from scratch.After the promulgation of The Law on the Application of Foreign Civil Relations in 2010,regional studies are no longer a hot topic.However,from the perspective of comparative research methods,regional research still has its theoretical value,especially the perspective of comparison and the application of methodology.This paper chooses the study of Japan's Private International Law considering the following three factors: first,Japan and China are close to each other.In ancient Japan,the legal system and thoughts of ancient China were inherited on a large scale,and in modern times,the legal system of western countries was fully inherited,so that the Japanese law completely cut off the connection with the traditional legal system in structure or form.How was it formed?How does Japan's private international law combine transplantation with native law when it receives the legal system of western countries;Secondly,Japan's legislation of private international law is earlier,and the great discussion on the theory of private international law in the previous revisions has made an important contribution to the modernization of Japan's legislation of private international law.Theory first and practice test is an open concept in the field of Japanese private international law,and these theories are refined to the revision of articles;Thirdly,the legislation of private international law in China is also in the discussion of the choice of legislation mode and the revision of current articles.In December 2019,Professor Huang Jin,President of China Society of private international law,put forward at the working conference of compilation of China Code of private international law(proposal draft of the society),"at present,the civil code is in the process of formulation,the civil and commercial legal system will be greatly adjusted,and the legislation of private international law should also be adjusted accordingly in order to give a positiveresponse.The academic circle of private international law should do a good job in basic research in advance and put forward a proposal draft of code with both scientific and modern features." Both the academic circles of the civil law and the international private law express their own opinions in their respective fields,wanting referring sometimes to each other,and lack the legal argumentation and the coordination between the department laws.In this respect,Japan's experience in law practice is worth learning.In view of the above considerations,the research perspective of this paper is different from previous regional studies,and its innovations are mainly the following three:First,integrate the theory and the revision of law,and explore the social,political,economic and cultural elements behind the legislation of Japanese private international law.Since ancient times,Japan has been good at absorbing the advantages of other countries,especially in the field of law,from learning Chinese law,French law,Italian law to German law,from the legal system to legal culture,the learning and reference of which is reflected in every revision of the law.The first chapter of this paper outlines the basic aspects and development of the history of Japanese private international law theory,paving the way for the later chapters,and lays a legal basis for the revision of the law.It is of great significance for us to study the law by systematically combing the theory of Japanese private international law and the historical background at that time.After the Treaty of trade between Japan and the five European and American countries was signed in 1858,the urgency to establish a legal system matching the European and American countries launched the study of both the public and private international law of the world.The enactment of HORE has something to do with the "debate on civil law " in the history of Japan,during which some jurists,such as Boissonade,Hozumi Nobushige,Ryojir?Fukuhara,Sadatar? Hiraoka,have made important contributions to the legislation of Japan's private international law.It is the innovative basis of this paper to explore the process of private international law in Japan from scratch in the perspective of the legal thought of jurists and the social background at that time.Secondly,the research method of comparative law is mainly used in this paper in deeply analyzing the modernization process of Japan's private international law legislation.Generally speaking,the way of "comparison" in a paper is used in chapter,a vertical view of evolution,or a horizontal view of the outside world,which has apoor degree of integration with other chapters and other contents;the "comparison" in this paper is a main line throughout the whole process,striving to really "compare" some valuable results.The comparison of this paper is based on the historical background of the vertical evolution,the comparison between the old and the new,the refinement of the change from form to meaning,and the analysis of the internal causes of this change.Third,we should upgrade the experience of Japanese law revision to the level of legislative concept,legal thinking and legislative skills,select the revised content which has changed a lot from HORE to Act on the General Rules of Application of Laws,summarize and extract the experience of Japanese private international law legislation,i.e.gradual revision,legal argumentation,comparative law vision,transplantation and local integration,etc.,and put forward suggestions for the legislation of China's private international law.This paper,in addition to the introduction,is divided into six chapters,totaling170,000 words.First of all,the paper studies Japan's private international law from the historical dimension.Starting from the historical evolution of Japan's private international law,this paper describes the development process of Japan's private international law,outlines the process of law transplantation and local integration;secondly,from the perspective of comparative law,it analyzes the revision process of Japan's private international law from HORE to Act on the General Rules of Application of Laws,and it can be seen that Japan's private international law legislation well embodies,both in linguistic expression and provision changes,the integration of legal transplantation and local conditions,and conforms to the development trend of contemporary private international law in the legislative concept.The first chapter,from the historical perspective,makes a comprehensive and detailed study of the contribution of Japanese private international law theory to the legislation of private international law.Japan's Meiji civil law mainly imitates the German civil code.At that time,the Japanese legal system was changing from French law to German law,the period of which saw the legislative background of Japan's private international law.Some theories of jurists demonstrate obvious German legal thoughts.This chapter outlines the evolution process---the starting stage,development stage and mature and perfect stage---of Japan's legislation of private international law from HORE to Act on the General Rules of Application of Laws,andshows the basic track of modernization of Japan's legislation of private international law.The revision of law,as the product of a country's political,economic and social development,can not be separated from the historical background at that time.The second,the third,the fourth and the fifth chapters respectively discuss the background,the theoretical discussion and the specific content of the revision of Japan's private international law in the fields with considerable changes.The second chapter focuses on the jurisdiction of natural person's capacity and the changes in the application of law,points out the deficiencies and shortcomings of the relevant provisions of natural person's capacity in HORE,and compares and analyzes the specific contents of the revision of Act on the General Rules of Application of Laws.It is mainly manifested in the following aspects: first,in order to protect the interests of minors(the principle of protecting the weak),Act on the General Rules of Application of Laws regulates the bilateral conflict of trade protection clauses in the legal application of natural person's capacity to act,so as to better reflect the equality of domestic and foreign laws,and more in line with the basic concept of private international law.Second,Act on the General Rules of Application of Laws does not separate the cause and effect of the declaration of civil capacity from the application of Japanese law,which can better protect domestic transactions and ensure the effectiveness of the protection of rights.Thirdly,in terms of the application of law to the declaration of disappearance,it is in line with the development trend of modern private international law to separate the jurisdiction from the application of law.Fourth,with regard to the application of the law of the guardianship system,in order to protect the interests of the guardian and the social interests of the place of residence of the guardian in a timely manner,in addition to applying the national law of the guardian in principle,Act on the General Rules of Application of Laws also provides for Japanese law,the "Law of the Court",applies in special circumstances.In addition,this section also takes into account the latest developments in international treaties regarding the application of guardianship laws,and the provisions of legal provisions strive to be consistent with international treaties.The third chapter makes a comparative analysis between the new law and the old law on the application of law in the field of "legal act",pointing out that Act on the General Rules of Application of Laws not only retains some traditional rules of HORE in the application of law in "legal act",but also reflects the national conditions ofJapan and conforms to the development trend of international private law.It is mainly manifested in the following aspects: First,Act on the General Rules of Application of Laws does not consider the parties' intentions to determine the governing law,but,by adding objective connection points,uses the characteristic payment theory to infer the closest connection points.For example,if the legal act of real estate is the subject matter,the law of the location of the real estate is presumed to be the law of the country most closely related to the legal act,which not only emphasizes the certainty and stability of the legal act,but also takes into account the flexibility of legal choice;Second,applying the autonomy will principle to the formal elements of legal acts is no longer limited to the principle of territorial law;when the mode of legal acts is connected with two countries,conforming to the legal provisions of one country is the effective provision,and conforming to the principle of "making it effective rather than invalid",which is conducive to maintaining the stability of social relations.Third,in order to better protect the weak,Act on the General Rules of Application of Laws has set up special mandatory provisions for the application of consumer contracts and labor contracts,as well as various protection provisions.The provisions on the application of law in the field of legal acts are basically consistent with the relevant provisions of the developed countries and international conventions,and Japan's rules of private international law are further in line with international standards.The analysis conducted in Chapter Four is devoted to Japan's Act on the General Rules of Application of Laws which is of great significance to the development of Japan's private international law in terms of the modernization reform of creditor's rights legislation.On the surface,the formulation of Act on the General Rules of Application of Laws has made many revisions in the field of infringement,and there are six more provisions than HORE.As to the content,the law of the place where the single applicable cause fact occurs has been changed to the law of the place where the applicable result occurs as the principle and the law of the place where the injuring act is applied as the exception,adding two types of special cases,namely product liability and reputation infringement.The principle of the closest connection and the principle of autonomy of will have been added.Through the softening of the connection point and the introduction of the principle of the closest connection and the principle of party autonomy,the flexibility of tort conflict norms increases,which also makes Japan's private international law converge with the relevant legislation of other western countries and conforms,to a certain extent,to the recent development trendof private international law.It is embodied in the following aspects: first,in the application of the law of non cause management or unjust enrichment,in addition to the application,in principle,of the law of the place where the facts happen,the most closely related law is added as an exception clause,and the principle of autonomy of will is also introduced.Secondly,the refinement of the local law of tort,that is,the establishment and effect of the creditor's rights arising from the tort,is based on the local law of the result of the injuring act in principle.However,as an exception,where the result of the act is usually unforeseeable,the law of the place where the act is inflicted shall prevail.Third,Act on the General Rules of Application of Laws has made special provisions for two kinds of individual torts: product liability and reputation infringement.Fourthly,"exception clause" is added to the application of tort law in Act on the General Rules of Application of Laws which makes the link elements diversified,and even in the network environment,case justice can be achieved.Fifth,Act on the General Rules of Application of Laws recognizes the autonomy of the parties' will in respect of the creditor's rights arising from the infringement.The fifth chapter summarizes the overall changes in Japan 's private international law in the field of marriage and family relations.By comparing the HORE and the revised Act on the General Rules of Application of Laws,it analyzes the relevant cases of Japanese private international law 's legislation on marriage and family relations,taking into account national and world circumstances so as to highlight the importance of localization.This chapter focuses on the following aspects: First of all,in terms of marriage,considering that the substantive elements of the marriage are related to the customs,cultural traditions,and policy choices of the parties 'domestic countries,the applicable conditions are relatively strict,that is,the substantive elements of the marriage are formed by overlapping application of the parties' national laws.In contrast,considering that marriage does not involve value judgments and policy choices,the legal provisions are designed to make marriage as much as possible,so in terms of formal requirements(that is,the way of marriage),the General Rules Law provides for selective connection points.Secondly,the principle of gender equality should be followed in such foreign relations as the effectiveness of marriage,the property system of husband and wife,divorce,and the relationship between parents and children.Especially in the property system of husband and wife,divorce and the legal application of the legal relationship between parents andchildren,the type connection node is adopted,which fully embodies the concept of gender equality.Finally,although there are many different views in the academic circle and detailed discussions in the review conference,the Act on the General Rules of Application of Laws still maintains the relevant provisions of HORE,together with Japan's failure to ratify the Convention on the Law Applicable to the Inheritance of the Deceased's Heritage adopted by the Hague Conference on private international law in 1988,all of which reflect the localization characteristics of Japan's private international law legislation,wisely transplanting the legislative experience of western countries,even a little conservatively,carefully and moderately,modifying its law from its national conditions,social and cultural background.However,in terms of the validity of testamentary method,Japan incorporated into the applicable law on testamentary disposition the main contents of the Convention on Conflict of Laws on Testamentary Disposition formulated by the Hague Conference on private international law in 1961,which reflects the process of international convergence of private international law in Japan.It is the proof that Japan's legislation of private international law is more and more mature since it selectively follows the Western legislative experience.The sixth chapter focuses on the enlightenment to China of Japan's private international law legislation.To study the legislative development of Japan's private international law through the historical dimension and comparative law perspective,the author tries to summarize the experience and lessons presented in the process of modernization of Japan's private international law legislation,and its theoretical value and practical significance for China's private international law legislation,and put forward suggestions for the legislation mode of China's private international law which is currently under hot discussion,and for the law revision and improvement of Law Application.The author believes that in order to perfect the legislation and justice of private international law in our country,we should consider the following relations: the theory of convergence and characteristic,the theory of internationalization and localization,the theory of conflict justice and substantive justice,the theory of flexibility and stability,etc.;to straighten out these relations,we should implement the revision of specific articles,such as abandoning the native legalism which takes nationality or residence as the standard in legislation,and adopting "habitual residence" as the standard of personal law,"habitual residence";we should further clarify the concept of compulsory norms,refine the fields of directapplication,and leave space for the application of extraterritorial compulsory norms,especially the third country compulsory norms;we should clarify the application conditions of the principle of the closest connection,limit the discretion of judges in the application of the principle of the closest connection,and reduce the abuse possibility by the judges of the principle of the closest connection in applying on the law of the country.From HORE to Act on the General Rules of Application of Laws,the modernization process of the legislation of private international law is reflected,no matter in the legal name,legal system,language expression,or legislative content.1Act on the General Rules of Application of Laws has made great progress in the following aspects:first,it gives up the rigid objective connection point of"place of conduct"in the application of contract law,introduces the principle of closest connection and the theory of characteristic performance,so that the flexibility and predictability of the application of contract law can be well balanced.For the purpose of protecting the weak,special provisions have been made on the application of consumer contracts and labor contracts,which is in line with the general trend of the development of private international law legislation.Secondly,the principle of the closest connection and the principle of autonomy of will are introduced into the conflict norms of non cause management and unjust enrichment.Third,in the field of tort,the objective connection points of the applicable rules of tort law are optimized.In terms of value orientation,we should not only pursue the objective effect of protecting the victims,but also take into account the balance of interests between the infringers and the victims.Fourthly,gender equality in marriage law and parent-child law has been realized,and"step-by-step connection"(Japanese expression for“?????”)has been applied to the fields of marriage effectiveness,marital property system and divorce,so as to protect the rights of both parties more reasonably.Fifthly,to realize the simplification of the determination of applicable law and the establishment of identity relationship,to modify the division applicability partially,and to adopt the method of selective connection point,which is not only conducive to the establishment of legal relationship,but also can protect the interests of the parties.Sixth,in accordance with the unification of private international law,important concepts and contents in the international conventions such as the place of habitual residence,applicable law dealing with property relations between husband and wife,and the principle of protecting the weak are introduced into Act on the General Rules of Application of Laws.The continuous advancement of Japan's private international law legislation and the selection of a legislative improvement method that fits the national conditions fully reflects the rationalization of its legal system itself.Japan's private international law legislation has undergone a long process of revision,and its legislative ideas and techniques have also been perfected and matured.These experiences can provide a good model for the improvement of China's private international law legislation and judicature,which is worthy of our study and reference.This is the significance of this study. |
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