Study On The Settlement Of Intertemporal Conflict Of Laws Under The Factual Change Of Connecting Point In China

As a medium,connecting points are invoked to locate the applicable law,to clarify the rights and obligations between the parties.The connecting points necessarily reflect the substantive relationship between a certain legal relationship or issue and the law of a certain jurisdiction.Due to the diversity and complexity of the actual situation of the legislation,it is impossible for the legislator to provide a nearly perfect design of connecting factors.Therefore,one or more of connecting points best reflecting the substantive connection between the legal relationship and the laws of a certain region will be invoked,and then based on this,the conflict rules are constructed.The applicable law determines the rights and obligations between the parties.However,when determining the applicable law,there may be situations in which problems such as preliminary question,intertemporal conflict of laws,and interregional conflict of laws may be resolved.Among them,there may be three situations in the aspect of intertemporal conflict of laws: the first is that conflict of laws of the forum state have changed after the establishment of legal relations;the second is that the substantive laws(applicable laws)located by conflict of laws of the forum state have changed after the establishment of legal relations;and the third is that the factual factors of the connecting points have changed after the determination of conflict rules.Connecting points can be divided into static connecting points and dynamic connecting points according to whether they are variable.Static connecting points are that their factors are fixed and unchanged,the common types are the location of real estate,and the time points are limited to the past connecting points,such as: Loci Marriage,Loci Contract,Loci Delicti and so on.Dynamic connecting points refer to the situation in which factual factors are changing,such as the State of nationality,domicile,location of movable property,etc.China's international private law norm system contains abundant provisions on the application of law,but because the factual factors changing,some of the provisions of conflict rules leaded to intertemporal conflict of laws that is difficult to determine the applicable law.At the same time,intertemporal conflict of laws not only lead to the need to consider the issue of the applicable law,but also increases the burden of judges in practice and requires judges to assume corresponding reasoning obligations.For such intertemporal conflict of laws,there is no consistent solution between international legislation and practice.The international private law of each country adopts the Principle of Invariance and the Principle of Variability according to the nature of the foreign-related civil legal relationship in order to solve the cases fairly and reasonably.Legislators in various countries have also made various provisions in legislation to reduce the troubles caused by intertemporal conflict of laws,such as increasing connecting points and using complementary connecting points,reducing the occurrence of intertemporal conflict of laws to a certain extent and reducing the impact of intertemporal conflicts.These practices will also provide ways to solving the problem of intertemporal conflict of laws arising from the factual factors of connecting points in China's private international law,such as resolving dynamic connecting points through principled provisions,increasing connecting points,and reasonably adopting the Principle of Invariance and the Principle of Variability,etc.