A Research On Jurisdiction In Private International Law

The essence legislation of jurisdiction and the judicial jurisdiction are analyzed in this article as well as the legislation jurisdiction conflict, and with the expansion of the two concepts of the law conflict and the conflict rule. Hence law conflicts between countries are divided into legislation jurisdiction conflict and the judicial jurisdiction conflict, so does conflict rule. Although the difference between legislation jurisdiction conflict and the judicial jurisdiction conflict is huge, but their essence is the same. Namely under the acknowledgement sovereignty principle premise, why a country's procedural law and the substantive law has an effect in another country, as well as when it has an effect, the question they confront and the goals they achieve are the same. Consequently, they two may mutually profit from the theory and the practice and complement one another. And this article consists four parts:Chapter one introduces the judicial jurisdiction. The judicial jurisdiction is made up of the domestic judicial jurisdiction, the national judicature jurisdiction and the international judicial jurisdiction. National judicial jurisdiction grants a country the authority to accept and trial cases, namely the entire national judicial jurisdiction which rests on is domestic law; The international judicial jurisdiction grants countries to accept and trial cases, which divides the authority scope of national judicature jurisdiction, is rested on international law. Consequently, there is the combination of the private international law and the international law, and the international judicial jurisdiction and the legislation jurisdiction should be embarked from the national judicature jurisdiction and the national legislation jurisdiction finally. Later, legislation jurisdiction is analyzed perspective in HansKelsen legal effect theory. Legal effect, which manifests legislation jurisdiction, is legislation jurisdiction. The international society is composed by various countries, each national jurisdiction all has its own certain scope, therefore the legislation jurisdiction also has its scope, so legislation jurisdiction conflict is inevitable followed. However, this kind of conflict is only in form, there is substantive law conflict unless foreign legislation jurisdiction is admitted, and we could get the concept of legal effect outside territoryChapter two analyses the concept of legal effect outside territory perspective in theory. It is now generally acknowledged that the essence of legal conflict is outside the problem of legal effect outside territory, however, the private international law scholars did not discuss the application of foreign law perspective in legal effect outside territory until later 1700. The author tries to analysis the conflict law through legal effect theory and analyses the structure of law conflict first. Not only the common features does law conflict have, but also the unique nature in private international law.The generality lies in the conflict rule to be supposed to have the behavior pattern and the legal consequence, the particularity lies in it is one kind of dual legal standard - its legal consequence subtly conveys the foreign law standard, this foreign law standard has the legal effect only if conflict standard obtains the actual effect. This exactly proves legal effect outside territory is relative, but not absolute. Legal effect outside territory of foreign law, which depends upon domestic law, could only be effective under some conditions.Chapter three draws the conclusion of judicial jurisdiction through the analysis of Legal effect outside territory theory and law conflict theory and with the expansion of the concept of law conflict and conflict rule. In this way, law conflict consists the conflict of legislation jurisdiction and judicial jurisdiction, conflict rule consists the conflict rule of legislation jurisdiction (substantive law) and judicial jurisdiction (procedural law), and there will have a certain solution to the law conflict of substantive law and procedural law. Of course, the nature in the two conflict rules and the goals they achieve are nearly the same, but the difference still exists. The substantive conflict rule relies on the justice and reasonable of law application, whereas the procedural conflict rule relies on the convenience and effectives of trial.