The Theory Of The Applicable Law Of The Movable Property Involving Foreign Elements

Laws applied to the foreign-related real right of movables is not only a major topic in the field of private international law, but also constitute the most important part to laws of conflicts. With the development of international trade, movables always move among different countries with different legislations. Thus, conflicts often occur. Moreover, intangible movables are increasing, making the movables’disputes tend to be more complicated and diversified. Therefore, studing on the improvement of the application laws of foreignn-related real right of movables can help to solve the disputes concerning the real right of movables, which will promote the continuous development of world economy and trade.Now, Lex situs is the most common principal applied in the disputes of foreign-related movables. Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China (hereinafter referred to as "the Application of Law"), adopted on October28,2010, has stipulated the the principle of lex situs. In addition, principle of autonomy of will is included while the application of laws concerning the real right of some special movables such as movables taking place in transportation or inheritance are also provided. However,"the Application of Law" still need to be improved due to the deficiency of particular stipulations over the two principles and other special movables. This paper first introduces the theories of foreign-related real right of movables, and then discusses the evolution history of the laws applied to foreign-related real right of movables. Based on the research, this paper makes analysis on the relevant legislation and judicial practice of our country so as to put forward suggestions to improve the system of the application of laws for the foreign-related real right of movables.In addition to the introduction, there are three chapters. Chapter I gives an overview of the conflicts of laws of the real right of movables. It mainly discusses the concept and classification of real right of movable, and then analyzes the conflicts existing in the application of laws concerning foreign-related real right of movables. Real right of foreign-related movables refers to movables with foreign elements. According to the state of movables, real right of movables can be divided into tangible ones and intangible ones. Conflicts in this field consists of conflicts in identification of immovables and movables, categories and contents, change ways and force, protection ways and real rights of movable granted by way of security of movable property.Chapter Ⅱ presents the applicable principles of laws in current international private law. This chapter first introduces the evolution history of the laws applied to foreign-related real right of movables and then focuses on the two principles, that is, lex situs and autonomy of will. The connotation,theories and application in practice of these two principles are particularly discussed. In addition, study on special movables which exclude the application of lex situs is also involved.Chapter Ⅲ is about the perfection of the application of laws for the foreign-related real right of movables. This chapter first makes exploration into China’s relevant legislation and judicial practice, and then analyzes the existing problems, which are as follows:Lex situs is not the common applied law; No regulations are stipulated to restrain the application of autonomy of will and still some special foreign-related movables are not covered. Considering these problems, this chapter puts forward advice for the perfection of the application of laws for the foreign-related real right of movables.