On The Secondary Characterization In Private International Law

After nearly half a century since the birth of the problem of “qualification”,AngloAmerican scholars divided the characterization in private international law into three stages which are the characterization of the factual background,the determination of the meaning of the connecting factor and the application and delimitation of the proper law.The first stage is regarded as “primary characterization” and the third stage is regarded as “secondary characterization”.In English legal literatures,this “secondary characterization” theory belongs to British author Robertson in principle.Concerning this theory,there is no shortage of criticism in the academic world.Many scholars oppose the concept of secondary characterization,which is believed to be inconsistent with judicial practice.Scholars who support the concept of secondary characterization believe that secondary characterization is an important part of characterization in private international law.In this paper,the problem of Dutch holograph testament proposed by French scholar Bartin is taken as a clue to examine the aimed functions of secondary characterization in Robertson's “secondary characterization” theory.Once several original judgements discovered in French legal literatures have been carefully examined,the decision has been taken to adopt the accepted notion in France of “secondary characterization”,correcting the definition of “secondary characterization”.Based on this,certain limitations have been observed in the procedural perspective when applying “secondary characterization”.Chapter I is written as introduction,describing the problem discussed here,existing ideas and related arguments.The value of this research and the content of this article have been explained in this part.Chapter II has introduced the theory of “secondary characterization” proposed by the British author Robertson.Robertson proposed this “secondary characterization” in order to completely and logically solve the problem of reasoning for a judge to apply one foreign rule.In his theory,a judge could possibly deal with at least two legal systems applicable before the determination of applicable law.Thus,here comes the problem of delimitation between these two legal systems after the determination of applicable law,which is called as “delimitation of the proper law” in his own word.This task is “secondary characterization”,which has led to great controversy in theoretical discussions.Chapter III has evaluated the aimed functions of the “secondary characterization” theory proposed by the British author Robertson.This chapter examines Robertson's “secondary characterization” theory from the following three aspects: ease of conflict of characterizations,application of foreign law and application of law of the forum(lex fori).After this careful work,it has been discovered that Robertson's “secondary characterization” theory has inherent contradictions in logic.It has been proved that his theory is not helpful in these three aspects mentioned above.Chapter IV has decided to correct the concept of “secondary characterization”.This chapter starts from several original judgements cited by French scholars to illustrate the problem of “qualification”,in which inherent contradictions in Robertson's “secondary characterization” theory has been pointed out.The accepted notion in France of “secondary characterization” has been adopted as the revised concept of “secondary characterization” here.Many cases that still belong to “primary characterization” are wrongfully taken as “secondary characterization” in Robertson's theory.“Secondary characterization” shall only refer to the activities of characterization according to the related foreign legal system which are carried out by the judge after the determination of certain foreign law as the applicable law of the case,irrelevant to the choice of applicable law.Chapter V has examined the problems that could be encountered in application of “secondary characterization”.In some cases of “party autonomy” cited here in the first place,the parties choose one specific foreign law with one specific name as “applicable law”.The greater difficulty in practice,which has been furtherly pointed out,lies in the identification of foreign law.After having considered written rules and legal practices in our country,it can be concluded that “secondary characterization” has limitations that can hardly be ignored in its application.Chapter VI is written as conclusion.In this part,it has been furtherly pointed out that the unique context of each domestic law determines the shape of the theory and practice of private international law in each country.Issues that arise from the application of foreign law should be treated individually considering the contexts of legal systems and legal traditions mentioned above.It can't be done using one single theory to unify all these issues in different countries.Given that “secondary characterization” is the characterization process conducted after the determination of one foreign law as the applicable law,it can be considered as the process of “discovery of foreign rule” which is a part of the application of foreign law as the applicable law.In particular,we should deal with the “secondary characterization” problem individually in the procedural perspective with the legal system and legal tradition of each country.