Study On The System Of Natural Persons' Domicile In International Private Law

This paper is made up by four chapters,which discuss natural person' domicile and it's significance to International Private Law,the ascertainment of natural person' domicile under the conflict of laws,the development of lex domicilii,the improvement of our system.In general,comparative study,empirical study and historical study are the main research methods of this paper.The object of the research is to reveal the special value and development of the system of natural person'domicile in International Private Law,and offer some suggestions to our country.The system of natural person's domicile,coming from the remote ancient Rome Law, still remains a legal concept frequently found in legislation and judicial practice of various countries,and is universally regarded as the center place where natural persons live in while recognized by law.In the light of the serious differences of the provisions on the establishment,alteration,and desertion of domicile around the world,the conflict of domicile is ubiquitous.Therefore,in order to ensure the function of domicile of connecting natural persons and the legal systems where they live in,to keep normal,it is necessary to research systematically on the related legal conflicts and applications in the view of the International Private Law.As an important type of applicable law,lex domicilii also deserve some further research.Based on the above analysis,the improvement of our system,could be possible.All the above may also be regarded as the academic and practical value of this paper.The innovations are as follows.Firstly,to explore the conflict of domicile,the paper bases upon the whole international civil proceeding instead of the mere stage of application of law.Secondly,based upon the flexibility and stability,the paper reveals the special development of domicile and lex domicilii.Thirdly,the paper realizes the combinition of theory and practice,the relative research could benefits the improvement of our system.To solve the problems of what is natural persons' domicile,and what is it's value to International Private Law,the first chapter makes some deep discussion.Firstly,for the sake of showing the general situation of the legal conflicts presented in the definition of domicile,the systems of natural person's domicile in the ancient Rome Law and modern foreign legislation are combed out first.In the ancient Rome Law,the nature of domicile changed from of identity to contract.The original concept of domicile is where ancestral altar locates.And in the historic background that economy of slave-owning system transited to feudal economy,the original concept was gradually substituted by the connotation of business center or living center,and took shape of the four kinds of original domicile, statutory domicile,voluntary domicile and appointed domicile.The modern system of natural person's domicile is intrinsically connected with the system of the ancient Rome Law.Under the premise of general definition of domicile,civil law countries tend to provide the domicile of minors,militaries and other special crowds.Although common law countries make different definitions of domicile,the common fine classification of domicile of origin, domicile of dependency and domicile of choice,creates an ideal room for the system of natural person's domicile.In general,the two are quite similar to certain provisions on natural person's domicile,but they have more profound individualities and differences.At present, lex domicilii serves as lex personalis in the Common Law System,which may directly lead to the more elaborate and complicated domicile system than that of the Civil Law System macroscopically.While,in the connotation of domicile,whether concludes the subjective element of natural person's living purpose is the most remarkable microcosmic difference in the two legal systems.The Civil Law System expresses the living purpose more obscure, some even never mentioned.Nevertheless,in the Common Law System,it is more obviously. Easy to detect,when natural person freely choose and set domicile,subjective element benefits the stability of domicile itself,while purely objective element raises the characteristic of flexibility.Despite the comparative merits of the two elements are related to the specific actual condition of a certain country,in view of the significant impact of domicile to the rights and obligations of natural persons,domicile legislation shall show enough concern on person's will.So the combination of the subjective with objective elements is more reasonable than the purely objective one.Secondly,this chapter explores the value of natural persons' domicile to International Private Law.That is,the standard of international factor,the foundation of jurisdiction,the connecting point of lex domicilii,the address of service,the basis of recognition and enforcement of foreign judgements.The second chapter discusses respectively the two problems that decide natural person's domicile under the conflict of laws,and in each stage of international civil procedure.Firstly,the conflict of natural persons' domicile could mainly manifest as the positive and negative conflict of domicile,and the conflict of the capacity to acquire a domicile. Choosing one and creating one domicile could solve the positive and negative conflicts.In the positive conflict,domestic domicile takes precedence of foreign domicile and the most significant related domicile may be the most favorable one.Usually,the(habitual)residence or the locus is used to solve the negative conflict.Besides,the conflict of the capacity to acquire a domicile is involved,which could be subjected to the applicable law of the capacity. However,this method is improper to Common Law System.The law of place of the old or new domicile,lex fori,the most favorable law to acquire the capacity,are not perfect.While back to the aim of the unanicousness,the law of place where new domicile locates is superior.Secondly,in the stage of jurisdiction,the court where parties' domiciles locate is the suitable court.Judges usually apply lex fori to decide whether the party has a native domicile. In the stage of application of law,the basis of characterization is multiple,for example,lex fori,lex situs,lex personalis and voluntary law.Lex situs with the native domicile has priority is advanced and widely popular.In the stage of service,the law of the requested country is applied.In the stage of recognition and enforcement of foreign judgements,the judgements of domicile are accepted by the requesting countries under formal examination.The third chapter reviews the development of lex domicilii and makes answers to the relative questions. Firstly,in the field of lex personalis,lex domicilii has been in change for a long time. Gong through lasting contesting with domestic law,and marked by the Civil Law of France of 1804,the lex domicilii's concept of lex personalis is abandoned gradually by Europe,only continuing in the countries of common law.Soon,lex domicilii has to face up again the mighty competition with the law of the place of habitual residence which is regarded as the coordinator of the conflicts of lex personalis.While,because of the confused meaning and constitutes,and all sorts of self defects,the law of the place of habitual residence is uncertain in application.It is the time to make clear the conception of“the law of the place of habitual residence”.The vitality is its distinct particularity from the legal concept of domicile,which is the particularity of factual concept.Under the premise that follows this character,it is evident that the habitual residence is purely objective.Thereby,the“regular place of residence”which conforms to natural meaning,shall be interpreted ideally as“habitual residence”.Nevertheless, it is no doubt that“the law of habitual residence”has flexible character.Although lex personalis do not naturally exclude flexibility,its demand for stability still occupies a leading position.For example,although the flexible law of the parties' domicile and the closest law have been known in the field of les personalis,they still limit to a very confined scope. Similarly,the flexibility of the law of the place of habitual residence will block the need of stability of lex personalis,so in most cases,it shall be considered as the supplement to lex domicilii.Despite the boundary of the two laws has been clear,they happen to coincide with each other,which is not yet explained by“merely a coincidence”.Virtually,we can see that the latter is in fact the need of the former to adapt to the new situation and a flexible form changing from time to time.Secondly,lex domicilii which is not satisfied by the intension of traditional lex personalis,keeps moving on.Lex domicilii draws support from the principle of the closest connection to set foot in the contractual relationship.Characteristic performance method is served as the applicable law of contracts and provides more specific legal basis.The common lex domicilii that fit in with the principle of closest connection is popular in the field of tort. In addition,with reference to aerial torts,lex domicilii is more and more valuable.Seeing that the autonomy principle neglect the weak,in order to avoid the defects of the autonomy law when there is a wide gap between parties' strength(such as contract of consumption and contract of employment),the conflict rules that serves objective symbol as connecting point and limits what laws parties choose become a method to defend the substantial equality of such contracts and to demonstrate humanistic care and substantial justice.In practice,lex domicilii has been a usual effective limitation to the autonomy principle.It is thus clear that as an important dependency type,lex domicilii has stood out gradually in the long-term confrontation with domestic laws depending on the changed shape of the flexible law of habitual residence not only in the scope of lex personalis,but also in other fields of legal application.Therefore,we shall attach importance to the potential capacity of lex domicilii.On the basis of the above chapters,the Chapter 4 analyzes the system of natural persons' domicile in the International Private Law of China.In China,the word of“domicile”is a domestic word,but it stay over a long period of time on the surface that“the place of residence”.Its internal function that connects natural persons with the legal system of certain place is not known by Chinese until the modern time. The reason is that influenced by the traditional idea of living together,sharing wealth and returning to the roots,the people's living status is simple,and the complex domicile system need not to be introduced objectively to support the application of law.Nowadays,in the legislative and judicial practice of the jurisdiction and application of law in the four scopes of law in China,it can frequently see both words of“domicile”and“lex domicilii”.At the same time of reviewing the system of natural persons' domicile in various scopes of law,it is easy to differentiate the concept of domicile and the important conditions.In the Mainland,at present,domicile is considered as the combination of the place of registered permanent residence and the habitual residence continuously living over one year.In Hongkong,it is established by“living in certain country or area and being willing to live in this country or area in indefinite duration.”In Macau,it is“personal actual and stable living center.”And in Taiwan,it is the place of living and of the will of long-term residence.In the interregional legal conflict of“domicile”,it seems that the problem of interregional lex personalis is much more puzzling.Among nationality,household register and domicile(habitual residence),it is obvious that it is better that domicile serves as the connecting point of domestic interregional lex personalis in China.Because it is not easy to achieve the unified concept of“domicile”of the four scopes of law,it is important to research on the basis of discrimination.In consideration of the convenience that ascertain each other the legal systems in the four scopes of law,lex situs can be applied directly to discriminate interregional domicile,which means ascertain whether parties have domicile in the Mainland,Hongkong,Macau and Taiwan area, and then apply the law of this scope of law.In addition,the provisions of Brussels Convention can be imitated to further to introduce the rule that the domicile where the court is has priority. For example,the judges of the Mainland apply the law of Mainland at first that is the General Rule of the Civil Law and the Opinion of the Supreme People's Court on application of the Civil Procedure Law of People's Republic of China,and determine whether the party have domicile in the Mainland.If he or she has no domicile in the Mainland,when judges determine where his/her domicile locates,Hongkong,Macau,or Taiwan,the law of the certain legal region should be applied.