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RECONSTRUCTION OF LEX PERSONALIS IN CHINA

  • Qisheng He (a1)

Abstract

In 2010, China's Legislature adopted a reconstructed new private international law which makes habitual residence the principal connecting factor of lex personalis. Prior to the new law, lex personalis had followed a mixed model that included the law of domicile, the law of nationality, the law of the country where a Chinese person resides, and the law of the place of an act. The reconstruction of lex personalis improves China's opportunities for accession to international conventions and for the adoption of common international measures to better protect the interests of Chinese citizens, especially children. However, China's legislature and its courts still have much to do in order to decrease and eliminate many conflicts among the previous and current provisions regarding lex personalis. Among other things, criteria need to be established for application in defining, judging and establishing habitual residence, especially with regard to appreciable period of time and settled intention.

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1 See Cavers, DF, ‘Habitual Residence: a Useful Concept?’ (1972) 21 AmULRev 475.

2 Fawcett, J and Carruthers, JM, Cheshire, North & Fawcett: Private International Law (14th edn, Oxford University Press 2008), 154.

3 Adopted at the 17th Session of the Standing Committee of the 11th National People's Congress on 28 October 2010, 7 Gazette of the Standing Committee of the National People's Congress of the People's Public of China 640–3 (2010). The 2010 Chinese PIL is an important follow-on to earlier legislative efforts in the areas of contract law (1999), property law (2007), tort liability law (2009) and it marks a new era in Chinese private international law. For a detailed discussions, see He, Qisheng, ‘The EU Choice of Law Communitarization and the Modernization of Chinese Private International Law’ (2012) 76 RabelsZ 47.

4 See Huang, Jin, ‘Enactment and Improvement of the Law of the People's Republic of China on Application of Law for Foreign-Related Civil Relations’ (2011) 3 Tribune of Political Science and Law 910.

5 Adopted at the Fourth Session of the Sixth National People's Congress, and promulgated by Order No 37 of the President of the People's Republic of China on 12 April 1986, effective as of 1 January 1987. The official text is available in the Gazette of the State Council of the People's Republic of China, (1986) vol 12, 371–92.

6 Adopted at the 13th Meeting of the Standing Committee of the Eighth National People's Congress on 10 May 1995; revised at the 11th session of the Standing Committee of the 10th National People's Congress of the People's Republic of China 28 August 2004.

7 Deliberated and adopted by the Judicial Committee of the Supreme People's Court 26 January 1988.

8 For example, art 143 of the GPCL provides that if a Chinese citizen settles in a foreign country, that person's capacity to enter into legal acts may be governed by the law of that country. Art 179 of the Opinion on the GPCL further specifies that a Chinese citizen's capacity to enter into legal acts is governed by Chinese law if he or she settles down overseas but the relevant act was conducted in China; if the act was carried out in the country where he or she has settled down, the person's capacity to enter into legal acts is governed by the law of the country where he or she has settled.

9 Art 149 of the GPCL (n 11) and the accompanying text.

10 Art 96 of the Negotiable Instruments Law of China (n 12) and the accompanying text.

11 Art 149 of the GPCL.

12 Art 96 of the Negotiable Instruments Law of China.

13 Art 189 of the Opinion on the GPCL.

14 Art 148 of the GPCL.

15 Those are Arts 21–26, 29, 30, 32, 33.

16 Art 19 provides that in cases where the law of the nationality applies and a natural person has two or more nationalities, the law of nationality where the person has a habitual residence applies. Where a natural person has no habitual residence in any of his or her countries of nationality, the law of the country with which he or she has the closest connection applies. Where a natural person has no nationality or if his or her nationality cannot be ascertained, the law of his or her habitual residence applies.

17 Art 11 of the 2010 Chinese PIL.

18 Art 13, ibid.

19 Art 15, ibid.

20 Art 28(1) and (2), ibid.

21 Art 31, ibid.

22 Art 46, ibid.

23 Art 21, ibid.

24 Art 12, ibid.

25 Art 19, ibid.

26 Art 21, ibid.

27 Art 23, ibid.

28 Art 25, ibid.

29 Art 42, ibid.

30 Art 45, ibid.

31 Art 24, ibid.

32 Art 14, ibid.

33 Art 24, ibid.

34 Art 26, ibid.

35 Art 28(3), ibid.

36 Art 44, ibid.

37 Art 47, ibid.

38 Art 29, ibid.

39 Art 22, ibid.

40 Art 29, ibid.

41 Art 30, ibid.

42 Art 32, ibid.

43 Art 33, ibid.

44 Art 41, ibid.

45 Arts 11–14, 21–24, ibid.

46 Arts 31–33, ibid.

47 Arts 25, 26, 28–30, ibid.

48 Art 46 of the 2010 Chinese PIL stipulates that where the rights of personality such as rights to a person's name, image, reputation, privacy, etc. are infringed upon via the internet or by other means, the law of the aggrieved party's habitual residence applies.

49 Art 44 states that liability in tort is governed by the lex loci delicti. Where the parties have common habitual residences in the same country or district, that law of the habitual residence applies. Where the parties choose the applicable law by agreement after the tortious act has occurred, their choice shall prevail.

50 Art 47 allows unjust enrichment or negotiorum gestio to be governed by the law chosen by the parties. In the absence of such agreement on choice of law, the law of the place where both parties have their habitual residences applies; and in that law's absence, the applicable law is the law of the place where unjust enrichment or negotiorum gestio occurred.

51 Art 41 provides that the parties may agree to choose the law applicable to their contract. Absent such a choice, the contract is governed by the law of the habitual residence of the party whose performance of contractual obligations can best embody the characteristics of the contract, or by any other law which has the closest connection with the contract.

52 Art 42 states that a consumer contract is governed by the law of the consumer's habitual residence. Where the consumer chooses to apply the law of the place of the supply of goods or services, or if the supplier does not pursue his or her relevant business activities at the consumer's habitual residence, the law of the place of the supply of goods or services applies.

53 Art 45 provides that product liability is governed by the law of the aggrieved party's habitual residence. Where the aggrieved party chooses to apply the law of the infringer's principal place of business or the law of the place where the damage occurred, or if the infringer does not pursue his relevant business activities at the habitual residence of the aggrieved party, the law of the infringer's principal place of business or the law of the place where the damage occurred is to be applied.

54 See Shah v Barnet LBC [1983] 2 AC 309.

55 See Du, Tao, Process of Modernization of Private International Law: Comparative Studies of China's and Foreign Reform of Private International Law (2007) 209–10; Huang, Dongliang, ‘The Problem of Lex Personalis in Law of the Application of Law for Foreign-Related Civil Relations of the People's Republic of China in 2010’ (2011) 9(4) Presentday Law Science 107.

56 See Dongliang Huang, ibid., 105–6.

57 See art 9 of the Convention of 1902 relating to the settlement of guardianship of minors. The Convention was concluded on 12 June 1902, and effective from 30 July 1904.

58 Art 5 provides that the domicile, as defined in this Convention, is the place where a person ordinarily resides, unless that residence is dependent upon that of another person or upon the seat of another authority.

59 See arts 4 and 5.

60 Arts 4 and 8.

61 Arts 5–7, 10.

62 V v B (A Minor) (Abduction) [1991] FCR 451, [1991] 1 FLR 266.

63 Re A (Abduction: Habitual Residence) [1998] 1 FLR 497.

64 Ikimi v Ikimi [2001] EWCA Civ 873.

65 Armstrong v Armstrong [2003] EWHC 777(Fam).

66 Fawcett and Carruthers (n 2) 187–9; see also Collins, L, et al. , Dicey & Morris on the Conflict of Laws (Sweet & Maxwell 2000) vol. 1, 150–1.

67 Fawcett and Carruthers, ibid., 189.

68 ibid., 189–90.

69 See art 4(2)(1) of Law of 16 July 2004 Holding the Code of Private International Law; an English translation by C Clijmans and P Torremans is available online at <http://www.ipr.be/data/B.WbIPR%5bEN%5d.pdf> accessed 20 September 2012.

70 An English text by RP Umbricht is available online at <http://www.umbricht.ch/pdf/SwissPIL.pdf> accessed 10 September 2012.

71 See Du, Xinli, ‘From Domicile and Nationality to Habitual Residence: A Study on Transform of Chinese Lex Personalis’ (2011) 3 Tribune of Political Science and Law 31–2; Du, Huanfang, ‘On the Law of the Place of Habitual Residence and Its Application in China’ (2007) 5 Journal of Political Science and Law 83.

72 Munro v Munro, (1840) 7 Cl & Fin 842.

73 See Fawcett and Carruthers (n 2) 154.

74 ibid.

75 Xinli Du (n 71) 31; Huanfang Du (n 71) 83.

76 See the Preface to the Convention of 15 June 1955 relating to the Settlement of the Conflicts between the Law of Nationality and the Law of Domicile.

77 Art 182 of the Opinion on the GPCL.

78 Art 183, ibid.

79 Lawrence Collins, et al (n 66) 154.

80 Whicker v Hume (1858) 7 HL Cas 124 at 160.

81 See Restatement (First) of Conflict of Laws, (1934), section 9.

82 ibid, sections 14 and 15.

83 ibid, section 16.

84 ibid, sections 18–20.

85 Whicker v Hume (1858) 7 HL Cas 124, at 160.

86 S Collins, et al (n 66) 110–46. See also Fawcett and Carruthers (n 2) 155–6.

87 See McClean, Recognition of Family Judgments in the Commonwealth (1983), Ch 1; North, PM, Private International Law of Matrimonial Causes in the British Isles and the Republic of Ireland (1977) 1015; Fawcett and Carruthers (n 2) 182.

88 Fawcett and Carruthers (n 2) 154.

89 See Domicile Act 1976.

90 See Domicile Act 1982 (Cth) (which applies to the Australian Capital Territory, the Jervis Bay Territory and declared external territories); Domicile Act 1979 (NSW); Domicile Act (NT); Domicile Act 1981 (Qld); Domicile Act 1980 (SA); Domicile Act 1980 (Tas); Domicile Act 1978 (Vic); Domicile Act 1981 (WA).

91 See The Domicile and Habitual Residence Act 1983 of Manitoba.

92 Lawrence Collins, et al (n 66) 152.

93 Kahn-Freund, , ‘The Wills Act 1963’ (1964) 27 MLR 55–7.

94 L Collins, et al (n 66) 153.

95 ibid.

96 ibid.

97 Anton, AE, Private International Law: A Treatise from the Standpoint of Scots Law (2nd edn, 1990) 123.

98 In regard to other disadvantages, see DF Cavers (n 1) 476–7; De Winter, LI, ‘Domicile or Nationality? The Present State of Affairs’ (1969-II) 128 Recueil des Cours 347.

99 See also DF Cavers (n 1) 477; LI de Winter, ibid, 419–23.

100 See Stone, P, ‘The Concept of Habitual Residence in Private International Law’ (2000) 29 Anglo-American Law Review 342.

101 See Rogerson, P, ‘Habitual Residence: The New Domicile?’ (2000) 49 ICLQ 84107.

102 Official Journal L 338 of 23.12.2003. For related discussion see Lamont, R, ‘Habitual Residence and Brussels IIbis: Developing Concepts for European Private International Family Law’ (2007) 3(2) Journal of Private International Law 261.

103 80/934/EEC, OJ L 266, 9.10.1980, at 1–19.

104 LI De Winter (n 98) 428. For discussion of whether habitual residence is a question of pure fact or a legal concept, see DF Cavers (n 1) 487–8; Fawcett and Carruthers (n 2) 185–9.

105 LI De Winter ibid.

106 L Collins, et al (n 66) 149–50.

107 Art 11 of the 2010 Chinese PIL.

108 Art 12, ibid.

109 Art 15, ibid.

110 Art 13, ibid.

111 Arts 21 and 23, ibid.

112 Art 31, ibid.

113 The Law Commission and the Scottish Law Commission, Private International Law: the Law of Domicile, Law Com No 168, Scot. Law Com No 107, November 1987, 10.

114 Art 12(1) of the 2010 Chinese PIL.

115 Art 96 of the Negotiable Instruments Law.

116 Art 143 of the GPCL.

117 Art 30 of the 2010 Chinese PIL.

118 Art 190 of the Opinion on the GPCL.

119 Art 15 of the GPCL.

120 Adopted at the 528th meeting of the Judicial Committee of the Supreme People's Court, and promulgated by Judicial Interpretation No 22 [1992] of the Supreme People's Court on 14 July 1992.

121 Art. 4 of the 1992 Opinions provides that the domicile of a citizen refers to the place of his or her permanent residence, and the domicile of a legal person refers to the place of its main business or the place of its main office. Art. 5 of the 1992 Opinions states that the habitual residence of a citizen refers to the place where he or she has consecutively resided for more than one year from the time when he or she left his or her domicile to the time of a complaint, except for the place where he or she is hospitalized.

122 Art 15 of the GPCL; art 4 of the 1992 Opinions.

123 Art 9 of the Opinion on the GPCL; art 5 of the 1992 Opinions.

124 Case Number: (2006) ci min yi chu zi No 332.

125 Wan, Xiaoyan, ‘On Domicile of Natural Person from the Perspectives of Conflict of Laws’ (2009) 32 Commercial Times 73.

126 See discussion in Part III A; Fawcett and Carruthers (n 2) 187–9; L Collins, et al (n 66) 150–1.

127 Swaddling v Adjudication Officer, Case C-90/97, [1999]ECR I-1075; see also Di Paolo v Office National de l'Emploi, Case 76/76, [1977] ECR 315. In Nessa v Chief Adjudication Officer, [1999] 1 WLR 1937(HL), Lord Slynn took into account, inter alia, the following factors in determining habitual residence: The person's accompanying possessions; doing everything necessary to establish residence before coming; having the right of abode, seeking to bring along a family; and having durable ties with the country of residence or intended residence.

128 See Zhang, Hongwei, ‘Several Issues about the Ascertainment of the Defendant's Habitual Residence’ (1992) 11 The People's Judicature 30.

129 Art 20 of the 2010 Chinese PIL.

130 Hongwei Zhang (n 128) 30.

131 Art 20 of the 2010 Chinese PIL.

132 No 9 of Resolution (72) 1 of the Committee of Ministers of the Council of Europe on the Standardisation of the Legal Concepts of ‘Domicile’ and ‘Residence,’ adopted by the Committee of Ministers on 18 January 1972 at the 206th meeting of the Ministers’ Deputies.

133 No 10, ibid.

134 Re M (Minors) (Residence Order: Jurisdiction), [1931] 1 Federal Law Reports (Australia) 495 (C.A.).

135 During the preparation of this article, the author searched via the internet almost all the legal databases involving relevant Chinese cases as well as numerous cases in Chinese law books. Few cases relevant to habitual residence were found.

136 Bian v Bian, available online at <http://www.pkulaw.cn>, cited case number: CLI.C.241040; also available online at <http://www.dzlawyers.com/FuWu/hyfl/Showlist.asp?/62.html> accessed 9 September 2012.

137 Adopted on 9 April 1991 at the Fourth Session of the Seventh National People's Congress, and revised according to the Decision of the Standing Committee of the National People's Congress on Amending the Civil Procedure Law of the People's Republic of China as adopted at the 30th Session of the Standing Committee of the 10th National People's Congress on 28 October 2007.

138 Art 22 of the Civil Procedure Law of China.

139 Art 12 of the 1992 Opinions.

140 Art 9 of the Opinion on the GPCL; art 5 of the 1992 Opinions.

141 Art 9 of the Opinion on the GPCL; art 5 of the 1992 Opinions.

142 Some may argue that art 12 of the 1992 Opinions concerns China's domestic matters and applies only to Chinese citizens. That is not correct. According to art 235 of the Civil Procedure Law of China, the provisions of Part Four (Special Provisions of the Civil Procedures Involving Foreign Elements) are applicable to any civil litigation involving foreign elements in China. Where such an action is not covered by the provisions of Part Four, other relevant provisions of this Law shall apply. From the provision of art 235, it may be concluded that art 12 of the 1992 Opinions applies to foreign plaintiffs and defendants.

143 Indeed, because the valid period of the couple's residency and of the plaintiff's job in China would soon expire, and also because the plaintiff and the defendant could not reside in China, the Chinese Court was not a proper court to deal with the dissolution of their marriage. Even if the Chinese Court had rendered a judgment on the couple's action, the judgment would not have had a binding force in Japan. The proper place to hear the case should be a Japanese court.

144 Arts 11, 12 and 16 of the GPCL.

145 For a detailed introduction, see Fawcett and Carruthers (n 2) 191–3; P Stone (n 100) 359–65.

I wish to thank Professor Larry Kramer for his invitation to be a 2011–12 Fulbright Visiting Scholar at the Stanford University School of Law. I thank Mr. Leif Schaumann for his help and suggestions on this paper. The paper is supported by the project of the Ministry of Education of the People's Republic of China (Number of the project: 2009JJD820008) and supported by the Fundamental Research Funds for the Central Universities. However, the views expressed in the paper are solely those of the author.

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RECONSTRUCTION OF LEX PERSONALIS IN CHINA

  • Qisheng He (a1)

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