A Study On The Choice-of-Law Approaches Of Foreign-Related Testament

In the early private international law legislation,the choice-of-law approach of the foreign-related testament is very general.Since the 1960s,a wave of private international law legislation has been set off in the world.The traditional choice-of-law approach of the foreign-related testament has been constantly reformed,and the conflict rules of testament have gradually taken on the softening trend.The Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions of 1961,the Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons of 1989 and the Regulation(EU)No.650/2012 on Succession promoted the unification of the testament conflict law,and the provisions on choice-of-law thereof had an impact on the domestic legislative activities of other countries.Many countries inject more flexible factors to adapt to the rapidly changing society.At present,more and more countries use habitual residence as a connecting point,which effectively coordinates the conflict between residence and nationality,representing the development trend of personal law.Meanwhile,choosing the applicable law of the foreign-related testament according to the principle of party autonomy has also become an important choice-of-law approach,which conforms to the principle of testament freedom.Influenced by the conflict law revolution in the Unitied States of America,some European countries adopt the escape clause,which helps to realize the stability and flexibility in choice of law.In this dissertation,four important approaches would be demonstrated including their formation,application and problems.Besides,the development trend of choice-of-law approaches will be summarized.In addition to the introduction,this dissertation is divided into seven chapters.Chapter one mainly deals with the legal conflicts of the testament substantive law in various countries.The restriction degree and way of testament freedom are different in various countries,which will have an effect on choice-of-law approaches of the foreign-related testament,so it is necessary to study the differences of testament substantive law.The research on choice-of-law approaches of the foreign-related testament is influenced by the domestic legal choice of law rules to a great extent.The testament substantive law can be divided into testament succession,the formal elements,the substantial elements,the interpretation of testament,the bequest and so on,which will be the research basis of this dissertation.Chapter two is an overview on the dépe?age in testament conflict law.As a choice-of-law approach,the dépe?age could be seen in the era of statue theory when choosing the contract law,which has already penetrated into the testament conflict law and become an important approach for the choice of foreign-related testament law.Using the dépe?age to choose the applicable law of foreign-related testament originates from the severability of testament matters,most countries have divided the issue of testament succession from the testament itself and choose the applicable law respectively.When dividing the testament issues,if some issues are irrelevant or not so closely related,the choice of different laws will not harm the substantive justice of legal choice.On the contrary,it may deviate from the purpose and result of the application of law,which is harmful to protect the vital interests of the parties.The application method,the value,the function and the limitation of dépe?age,and also the correction of improper dépe?age will be analyzed in this chapter.Chapter three mainly focuses on the testator's lex personalis.Lex personalis is an important way and usually applied as a general rule in determining the applicable law of foreign-related testament,the capacity of testament and the validity of testament.When deciding applicable law of the form of testament,it is generally applied as a selective rule.However,there are exceptions,that is,in the countries with scission systems,the testator's lex personalis is applied in parallel with the law of immovable property.In the specific application of lex personalis,there are disputes between domicile doctrine and nationality doctrine.With the promotion of unification concerning testament conflict law by Hague Conference on Private International Law and the EU,the habitual residence has become the connecting point for harmonizing domicile and nationality,which represents the development trend of lex personalis.Some countries and regions began to adopt the habitual residence when revising and formulating testament conflict law,the application scope of which has been expanded,however,the application criteria of which need to be further clarified.In the fourth chapter,it is mainly analyzed the choice,via principle of party autonomy,of the law applicable to the foreign-related testament.The principle of party autonomy has long been seen as a part of the multilateralism approach,but this view has lost its legitimacy today.Since the 1980s,with the impetus by some countries and the Hague Conference on Private International Law,the principle of party autonomy has become an important choice-of-law approach of the foreign-related testament.In the application of the principle of party autonomy,the spatial scope,time factor,application method and the substantive validity need to be considered.At present,much more legislations have imposed restriction on the principle of party autonomy.More countries believe that the scope of law chosen by the testator should be restricted,namely the time limited to“making the choice”and“making the testament”by the testator or his“death”,and a special mean to make the choice is generally required.With regard to the substantive validity of the party autonomy,the“applicable law theory”is generally adopted.The fifth chapter is an analysis of determining the applicable law of the foreign-related testament by the escape clause.Under the bilateral choice of law rules,the applicable law referred to by the conflict rules is presumed to have the most significant connection with the case.Influened by the conflict law revolution in USA,the bilateral choice-of-law theory is constantly developed and improved to promote the emergence of the escape clause.On one hand,the escape clause guarantees the predictability and stability of the choice-of-law of foreign-related testament;on the other hand,it avoides the rigidity and strictness thereof so that to change the mechanization and blindness of traditional choice-of-law approaches.The escape clause can be divided into general escape clause and special escape clause,the function of which is mainly to correct the unreasonable law choices.Judges should adhere to the criteria in applying it,and can escape the guidance of normal conflict rules only if there is a fact that the connecting point is isolated and that there is indeed a more closely connected law.The sixth chapter is based on the analysis of the previous five chapters,which is a summary on the development trend of the choice-of-law approaches of foreign-related testament.In the traditional testament conflict rules,there is only one objective connecting point to guide the applicable law,and a certain law,which leads to the mechanical choice of law and is widely criticized,governs the whole legal relationship of testament.At present,various countries generally adopt a variety of approaches to choose the applicable law,and gradually soften the norms of conflict rules by changing the connecting points,which is manifested as dividing the legal relationship of testament and stipulating the choice-of-law rules respectively,adopting the habitual residence as the connecting point of lex personalis,introducing the principle of party autonomy to allow the testator to choose the applicable law,giving judges the discretion to choose laws with closer connection in order to correct improper legal choices.The choice-of-law approaches of foreign-related testament develope from“simple”to“complex”and from“rigid”to“flexible”.The seventh chapter deals with improvement suggestions for the choice-of-law rules of the foreign-related testament in China.The Act of the People's Republic of China on the Law Applicable to Foreign-related Civil Relations(Chinese PIL-Act of2010)stipulates the conflict rules of foreign-related testament's form and validity with applying the dépe?age,the 32^nd and 33^rd articles are important legal basis for Chinese courts to hear the foreign-related testament cases,which both are unconditionally selective conflict rules,with habitual residence as the connecting point.In practice,some courts have ignored the retrospective force of the Chinese PIL-Act of 2010 and the classification of the cases,which leads to errors in choice of law.Some courts tend to apply the law of China's Mainland and apply improperly the principle of party autonomy and the doctrine of the most significant relationship.In order to solve the problems in practice,the judge's adjudication level needs to be improved and the choice-of-law rules of foreign-related testament should also be modified.Firstly,a uniform choice-of-law rule should be established by perfecting the use of dépe?age,which means testate succession will be governed by the rules of succession.Besides,the choice-of-law rules concerning the capacity of foreign-related testament,the interpretation of foreign-related testament and the foreign-related bequests will also be establised.Secondly,the number of connecting point shall be increased.Thirdly,the principle of party autonomy should be introduced limitedly in order to allow the testator to choose the applicable law.Fourthly,the escape clause shall be stipulated to correct unreasonable law choices.