The Definition Of Habitual Residence In Private International Law

Habitual residence is the newly-developed connecting point of personal law,which was first adopted and then promoted by Hague Conference on Private International Law.After years of development,many nations adopted habitual residence as an alternative connecting point to nationality or domicile of personal law and even fields of contracts,torts and others which are out scope of personal law.However,the definition of habitual residence is not clearly defined by any conventions and all the national legislation or courts define it in different ways.Through the survey of historical backgrounds,the use and the definition in judicial practice in different countries of habitual residence,the importance of precise standards of defining the term and the problems arising from the definition of Chinese legislation and courts' practice and the suggestions accordingly are shown finally.The article uses historical,comparative research and case analysis to set out the issues.The backgrounds and significance of the emergence of habitual residence are stated through the historical review of connecting point of personal law.Comparing the applications and definition of habitual residence in different conventions and nations shows an overview of the role it plays being a connecting point of personal law.The courts of some contracting states of certain Hague conventions have defined the habitual residence in the cases of implementing the conventions,especially the Hague Convention on Civil Aspects of International Child Abduction andthus formed basic rules or standards of defining habitual residence,so is the Court of Justice of the European Union which mostly focuses on regulations on marital and family matters.Besides,judicial practices in common law countries like the U.K.and the U.S.all contributed to the definition of habitual residence.Through analyzing the cases of these countries,how to define habitual residence and taking what elements to consideration is concluded.The first chapter of the article is about the historical inspection and the use of habitual residence in different Hague conventions,EU regulations and national legislations.The comparative study of laws and practices of different countries indicates the considerations concerning the definition of habitual residence in the second chapter.The difference between the habitual residence of adults and children is seen during the introduction of implementation of Hague Convention on Civil Aspects of International Child Abduction,as which between the civil law and common law countries.The legislation and judicial practices of China are introduced in the third chapter which includes the historical and current connecting point of habitual residence and how the regulation is carried out in the practice.Two cases show how important the correct interpretation of the rules is.The final chapter concludes the problems of the current definition of habitual residence in China and gives suggestions accordingly which specially include the consideration of a different standard of definition of children's habitual residence.