Research On The Application Of Foreign Case In The Field Of Chinese Private International Law

As the increase of international civil and commercial exchanges between China and other countries, the foreign-related civil and commercial disputes are increasing gradually, so the private international law is playing more and more important role in adjusting the foreign-related civil and commercial law relationships. The main target in the private international law is to determine the applicable law to resolve the law application in the civil and commercial disputes. The situation that the applicable law determined and guided by the conflict rules in China is the case law for the common law countries appears unavoidable. The precedent is one of the main sources of law in the common law countries, by means of its advantages of unique flexibility and impartiality, the precedent plays an important role in the legal system of the common law countries. Scholars and judges in China have different understandings that whether the foreign precedents can be applied into the field of the private international law. This paper argues that if we regard the applicable law found under the guidance of the conflict rules in China as the foreign precedent, it shall be applicable in case law, no matter whether it has complied to the Chinese law, pursued the equity or justice of the law, or promoted Chinese foreign economic and cultural exchanges. The foreign law can be applied in the field of private international law in China, which is related to a series of issues, such as the reference and application of the foreign law, etc. Chinese law has a relatively simple and imperfect description for that, especially, for the application of foreign case law, which has encountered much trouble in the practical operation. Although the economic globalization is developing continuously, the legislation of the private international law is so imperfect. Even if the private international law is a domestic law, however, its trends of internationality and convergence shall not be ignored. Through the study on the characteristics of the private international law, the paper argues that the case law has more advantages than the statue law in the field of the private international law. It also discusses the feasibility of foreign precedents application in China, and researches the application method of the foreign precedents. It is imperative that perfecting legislation of Chinese private international law. In view of the advantages of case law, we shall seize the opportunities building the private international law system in China, introduce the foreign case law system into Chinese private international law, and eventually build up the private international system with Chinese characteristics, which is mainly based on the statute law, and supplemented by the case law.The paper is divided into four chapters. Chapter one is the necessity of foreign precedents application in the field of the private international law. The conflict rules is the main component of the private international law, which is determined by the form of statute law in China, which mainly can be found out in Chinese Civil law and other single law. Based on the complication of the statute law in China and the characteristics of private international law, the foreign precedents included in the foreign law shall be applicable in China.Chapter two is the discussion on the feasibility of the case law in the common law countries. China had a historical tradition of case law, and with the constant advance of China's legal system, China has developed the guidance system of the precedents. Although the precedent in China only guide judges deciding a case without any sanction, it is playing the same roles in the common countries in the practice, especially in the field of private international law. The case law system in China has the application base.Chapter three is the discussion on how to apply the foreign case law in the field of Chinese private international law. The existing laws in China identify a simple description for the reference body in foreign law, and the reference method, etc, the operation of which is not ideal. Based on the study of the reference method in the law system of Chinese mainland and the foreign law in other countries, and the introduction of the precedent content in the common law country, the paper puts forward the methods of applicable reference and foreign precedents application, and the suggestions for perfecting the reference on application of foreign law system.Chapter four is the discussion on the case law system introduced into the Chinese private international law. More and more countries admit the roles and status of the precedents in the field of the domestic private international law. While managing to resolve the foreign-related civil and commercial disputes, and perfect Chinese private international law, Chinese government can also draw lessons from other civic law countries, establish the private international law system, which is mainly based on the statute law, and supplemented by the case law.