Research On The Basic Systems Of Private International Law

The basic systems of private international law include characterization, renvoi, evasion of law, proof of foreign law and reservation of public order. They took shape on basis of conflict law. Because conflict law takes the method of internal law to solve civil-commercial disputes containing foreign elements, during the application of foreign law it occurs to many problems such as characterization. Eventually these ordinary problems were developed into the basic systems of private international law. Today the study of basic systems of private international law is necessary for at least two reasons. One reason is that the promotion of status of private international law, of which conflict law is the main body, lays emphasis on the study of basic systems. The other reason is that diversity of situations has made traditional systems unsuitable for modern international law. Although in different times countries take different attitudes towards the basic systems according to different values, in some special historical period there are some values in common, for the economic background of private international law is common and objective. So in modern times we should research these basic systems under the modern theory of private international law. Namely, modern basic systems should embody definitude and flexibility of law, give consideration to both the justice of conflict law and that of positive law, and be restituted according to theoretical concepts of international society standard.Characterization. Characterization is the first step of determining the applicable law. It is such a course that some civil-commercial dispute containing foreign element is allocated to its correct legal category. Existence of conflict makes characterization especially complicated and makes it developed into a basis system eventually. About the standard of characterization there are different theories and practices traditionally. In modern times, to solve the characterization problem, we should renew our sense, take the theory of new lex fori as the standard of characterization. In other words, we should characterize not only according to the internal positive law but also according to the conflict law, which absorbs the rational factor of the theory of analytical jurisprudence and comparative law.renvoi. Controversies never stop since renvoi arose. Protagonists of this theory consider that the adoption of this basic system has many benefits, including achieving the same decisions, expanding application of internal law, protecting the integrity of foreign law, and guaranteeing justice of specific case. While jurists who reject this system argue that the adoption of renvoi will lead to the following malpractices: vicious circle, damaging the dignity of law, being unfavorable to protect parties' rights, and derogating sovereignty. In fact, the reasons that renvoi is denied are untrue or can be overcome. In modern times renvoi still has its own value and is necessary for private international law. It should be perfected from the theory and practice.Evasion of law. As a kind of basic system it indicates such a circumstance that if parties deliberately create or change the facts, which constitutes the fact of operative facts or point of contact, in order to evade the obligatory law that ought to be applicable and make the favorable law be applied, the court may deny the effect of parties' conduct and still apply the obligatory law. Evasion of law came into being for two reasons. The first reason is objective. On the one hand, positive laws of countries are different. On the other hand, conflict law endows parties the freedom to choose the law. The second reason is subjective. Parties' instinct of pursuing benefits and escaping danger and countries' acquiescence or even indulgence for it also lead to evasion of law. We should change the traditional way that admits the effect of evasion of law, and deny the effect of evasion of both foreign law and internal law in the legislation and practice.Proof of foreign la...