Study On The Adoption Of Renvoi Doctrine In China

Renvoi, one of the special doctrines of the Private International Law, which is based on the conflict of laws, has a history of more than one hundred years. Throughout the process, the argument of it has never stopped. The two competing groups(i.e. one is in favor of the renvoi whereas the other is not) mainly argued on whether renvoi would destroy the integrity of the law of one country, whether it would respect the sovereignty of one country, whether it could achieve the consistency of the judgments of different countries, whether it would be advisable to adopt renvoi to increase the application of domestic law, which is more important between the flexibility of choice of law and the increasement of judicial cost because of the adoption of renvoi and so on. Although the arguing voice has never disappeared, it does not affect the academic development of renvoi doctrine and the practical application of it in the progressive times. On the contrary, there are more and more countries accepting renvoi doctrine, which implies that the special doctrine of Private International Law---renvoi---has its unique function and value, so far as the present developing condition is concerned.The argument on renvoi doctrine also exists in the Private International Law of China, but is suffered thorough denial in the judicial practice. However as Depei Han once said "when discussing the necessity of the existence of renvoi doctrine, we should focus on whether it conforms to the purpose and essence of the Private International Law, and whether it is good for the adjustment of international civil law relationship. If the answer is yes, then the renvoi doctrine should have a position in the Private International Law." Whether a doctrine can be adopted in one country is decided by the specific conditions of that country and the content of the doctrine itself. The factors we should take into consideration are the requirement of the doctrine in one country, the legal thoughts and tradition, the level of legal institutions and the legislative techniques when discussing the problem, just as the objectives and the practical requirements of the doctrine. And at the same time, the content of one regime and the specific conditions of one country are changing as the development of society and the progress of ages, so we should research the problem that whether one doctrine accords with one country at the background of new times.Thus the author observes renvoi doctrine should be adopted in our country. To demonstrate this the author first analyse the reasons why the doctrine can be accepted by us, implying that we should change our attitude towards this regime in legislation, instead of thoroughly denying it. Our country has the practical requirements for this doctrine, especially the protection of country’s benefits in the judgment of international civil and commercial cases. And we own the actual condition of applying the doctrine of renvoi. Because of the historical tradition and the specific factors, our legislation never involves renvoi, or it just denies it directly. But with the variation of our national conditions, the objective factors that restrict the application of the doctrine in our country has change. Therefore I hope we can analyse the reasons that we apply the doctrine of renvoi with changing eyes, in order to drive our attitude towards renvoi to change.Then comes the question of how to apply renvoi in China. I think it would be better if we establish a system to apply it. Changing the negative attitudes towards renvoi doctrine is just a small step, how to make it integrate into the existing system of laws and avoid the contradictions and gaps among the law systems is more pivotal. Meanwhile presenting the rational system design can also make the adoption of renvoi doctrine in our country more convicing.This paper shows the viewpoint of adopting renvoi doctrine in China in the background that the Application Law denies renvoi thoroughly. And the grounds of this point are no longer confined to the theoretical argument nor the completeness of logic. Instead, it regards the actual conditions as the basis, through analyzing the practical requirements for renvoi doctrine and the objective conditions for its adoption, combining with the feasible renvoi doctrine design to make the viewpoint more reliable, hoping to resolve the trouble that exists after the renvoi doctrine being applied in China.