| The determination of applicable law is one of the first problems that Chinese courts need to solve in resolving foreign-related civil and commercial disputes.The determination of correct and reasonable applicable law is related to the effective protection of the legitimate rights and interests of foreign-related civil subjects.Legal person(or artificial person)is a person made up by law.In the process of participating in foreign-related civil and commercial activities,it is also necessary to clarify the application of law of the legal person.Similar to natural person,the subject qualification of legal person,such as legal person's right ability and behavior ability,is of key significance to the settlement of legal person's foreign-related civil and commercial issues.Legal person's lex personalis is a kind of formula of attrbuion which is used to solve the legal conflict of legal person's establishment,right ability and behavior ability,etc.by some connection points.Through empirical research,we can conclude that the determination of the applicable law for disputes involving foreign legal persons has different standards and confused logic in our judicial practice;however,there are great differences in the understanding and application of the legal person law.Some cases which should have applied the legal person law to determine the applicable law are identified as other problems,so other laws and laws can be applied.The authoritativeness of the statute is challenged,so the judges' understanding in the process of choosing the applicable law of foreign-related legal persons urgently needs to be standardized and unified.The legal basis and specific application of the statute of legal persons in China need to be further understood and clarified.Based on this,we need to carry out a systematic empirical analysis of the judicial practice of the legal person law in China,find out the various specific problems,and then put forward suggestions for legislative and judicial improvement.Research and analysis show that in the judicial practice of personal law of legal person in China,courts at all levels have great differences in the choice of applicable law for specific disputes.Generally,there are different standards.The problems of overlapping application,insufficient reasoning and logical confusion are prominent.In addition to the reasons for the judges' individual judicial capacity,the fundamental reason lies in the defects of the legal person law in China,which are mainly manifested in two aspects,namely,Article 14,paragraph 1 and paragraph 2 of the Law of the People's Republic of China on the Application of Law in Foreign-relatedCivil Relations(hereinafter referred to as the Law on the Application of Law).Firstly,the scope of application of the legal person law is relatively small.Paragraph 1defines it as "capacity for civil rights,capacity for civil conduct,rights and obligations of organizations and shareholders",but at the same time,it makes a thorough provision in the form of "other similar matters".However,the content embodied and contained in "other similar matters" lacks clear and unified provisions in legislation and judicial interpretation,so that courts at all levels encounter outside the scope of the above four contents.When disputes arise,whether or not the provisions of this article are applicable is uncertain,usually identified as other issues,or dealt with by overlapping relevant provisions,expanding the application of the principle of party autonomy and the principle of the closest link,so that the same types of disputes are handled differently by different courts.Secondly,paragraph 2 stipulates that when the principal place of business of a legal person is inconsistent with the place of registration,the judge shall be given the discretion to choose the law applicable to the establishment of the place of registration or the principal place of business of a legal person according to the actual situation of the case.However,what is the "principal place of business" ? The legislation only stipulates that "the Habitual residence of a legal person is its principal place of business".In judicial practice,courts at all levels have different opinions and standards on whether the legal person concerned should be recognized as its "main place of business".In addition,whether judges exercise their discretion in choosing and applying the "main place of business" law needs to be further clarified.In view of the above two problems existing in the lex personalis of legal person in our country,this paper puts forward that,on the basis of adhering to the basic standpoint of " the state-of-incorporation doctrine fisrt and then giving consideration to the real seat doctrine",we should perfect it from two aspects: first,we should further expand the scope of application of lex personalis of legal person,and at the same time,we should determine its intrinsic criteria in order to standardize the process of application of law so as to strengthen the application of the basic standpoint of state-of-incorporation doctrine in the system of lex personalis of legal person of our country;secondly,we should clearly define the "the main business place" and clarify the situations of application of the "the main business place" law by judges,so as to regulate the limited application of "the real seat doctrine". |
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