On Depecage In The Private International Law

With the constant development of electronic information technology and the continuous advancement of globalization,the complexity of International civil and commercial relations has greatly increased in both form and essence, with regard to the international civil and commercial cases,which is contact with two or more countries and regions. The traditional choice-of-law approach apply to the law in a national and regional in general. Although the predictability of this method, But it can not be adapted to the increasingly complicated international civil and commercial disputes. As the conventional wisdom of private international law,Depecage get a new connotation In the new historical period. And As a more flexible method,De pecage has important significance for the solution of the complex international civil and commercial cases.Depecage is choice-of-law approach.It refers to apply different laws for different issues in the same case involving foreign elements,or refers to apply different laws for different legal relations in cases involving foreign elements,or refers to apply different laws for different aspects under the same legal relationship in cases involving foreign elements.Between these disputes points,legal relationship and aspects are not directly manifests subordination.There is essential difference between Depecage,a disputed point analysis,characterization, preliminary question and bilateral conflict rules.As a choice-of-law approach,Depecage is followed as a result of the conflict of laws. Depecage starts with Depecage theory in the age of statute theory, Development in the revolution of law of conflict in American,and Maturing in the contemporary era. The direct theoretical basis of Depecage is the issue-by-issue analysis. There is a causal relationship between issue-by-issue analysis and Depecage. And Depecage is the result of happenstance of issue-by-issue analysis.The main purpose of the Depecage can be interpreted in the following two aspects:to resolve the disputes and to prevent from forum shopping. Confronted with more and more internatonal commercial cases, Depecage will inevitably play a role in the process of preventing from forum shopping.Depecage can be divided into three categories according its cause:legislative or statutory depecage, voluntary or subjective depecage, judicial depecage. A legislative or statutory depecage occurs when the statutory choice-of-law rule or rules, properly applied, lead to the application of the substantive laws of different states to different aspects of the same cause of action. A voluntary or subjective depecage occurs when the application of the laws of different states to different aspects of the same cause of action results from the legally permissible expression of the volition of one party (such as a testator) or more than one party (such as the parties to a contract). A judicial depecage occurs when a court applies the laws of different states to different aspects of the same cause of action in an uncodified choice-of-law system, or in a codified system that does not mandate a depecage for the particular cause of action.Depecage is being adopted by the legislation of more and more country’s private international law, and getting more and more widely used in the judicial practice from the perspective of the latest legislation and judicial practice. Depecage was permeated with the international family law, except for its application in international contracts and torts law. Depecage is applied in the field of marriage, matrimonial property regimes and succession.In terms of the application of Depecage in the Chinese private international law,,hrough the statistical analysis of the author can we know that the spplication of Depecage in our country’s judicial practice case is still less. To resolve these problems, the writer has come up with its solutions. To begin with, we should draw up from the international experience, making up for the inadequacy of Chinese Depecage in legislation in our country. What’s more, we should encourage the judicial practioners to have a clear mind about the depeccage. When faced with the complex international civil cases, they could use the Depecage positively in order to resolve the disputes easily.