Preface to the First Edition of 2011
Law comes from many sources.In an ideal world,the authority of these sources would be clearly defined and neatly demarcated,so that no event or occurrence was ever subject to control by more than one law maker or law enforcer.But such is not the world where we are living.The power to make or administer law is often unclear and,even when clear,frequently overlaps.Conflicts arise,and a way is needed to resolve them.This,broadly speaking,is the subject matter of “private international law.”
In a world which is shrinking by increased and improved means of communication and exchange,private international law,especially in a comparative perspective,has acquired extraordinary importance and become an indispensable tool for all lawyers.It is in this sense that this textbook fulfils its utilitarian purpose,as it explores both doctrinal and pragmatic aspects of Chinese private international law from the perspective of comparative law.Moreover,since the first Conflict of Laws Act of the PRC was passed on October 28,2010 which shall be put into effect on April 1,2011,Chinese private international law has witnessed a silent revolution; hence,there can be little doubt that the publication of this book is timely and necessary.
This textbook is designed for use in a typical three-credit course on private international law taught in English,which is devoted to providing detailed and in-depth analysis of the current conflict rules in China concerning jurisdiction,choice of law and recognition and enforcement of foreign judgments and awards in civil and commercial related disputes,and to carrying out updated case analysis which could discover the judicial practice in the Chinese People’s Courts.
Part I consists of three chapters which provides an introduction to the course without enmeshing students in details and complexities better provided in later parts.Chapter 1 is a general description of private international law where its name,scope,nature,definition and raisons d’être are discussed.The remaining two chapters examine the sources of private international law and a vital concept of our subject—“Conflict Rules” respectively.
Part II explores the historical development which is composed of three chapters,i.e.,the European Continental History,the Anglo-American History,and the Chinese History.This part is important,insofar as modern private international law has been strongly influenced by its own history.
Part III turns to the “Subjects of Private International Law.” Under the Chinese scholarship,natural persons and legal persons are classified as “regular subjects,” while states and international organizations are classified as “exceptional subjects.” The first two chapters of this part lay out the nationality and domicile of natural persons and legal persons and the last chapter discusses the issues of states and international organizations as the subjects of private international law.China’s position and practice on the immunities of states and their property have also been thoroughly analyzed in chapter 3.
Part IV deals with “International Civil Jurisdiction.” As jurisdiction is usually the first issue that a court has to deal with when a dispute is submitted before it,this part examines the jurisdiction of courts in international civil litigation prior to the discussion of choice of law issues.Chapter 1 provides a comprehensive exegesis of the basics of international civil jurisdiction.Chapter 2 summarizes and analyzes the current Chinese legislation and judicial practice on international civil jurisdiction; thereafter it provides comments and suggestions.
Part V spells out the “General Part of Conflicts Law,” which examines a number of conceptual issues recurring in discussions of choice-of-law problems such as characterization,renvoi,proof of foreign law,evasion of law and ordre public reservation.
Entitled “Selected Areas of Conflict Rules,” Part VI exposes students to the core set of issues needed to understand private international law.This part focuses on conflict rules that scatter through various Chinese laws,including new Conflict of Laws Act of 2010,whose balance will be devoted to a survey of selected areas of Chinese conflict rules,scrutinizing the relevant legislation as well as judicial practice and providing systematic comments.The conflict rules for capacity,contract,tort,family issues,succession and property are selected as the topics of discussion in this part.The highlighted areas are chosen partly for their importance in terms of their effect on the relationships between China and other states and between Chinese citizens and foreigners,and partly because of the lack of available materials other than these subjects.
Part VII is “Recognition and Enforcement of Foreign Judgments and Awards” which includes two chapters.Chapter 1 provides an overview of the recognition and enforcement of foreign judgments and addresses the recognition and enforcement of foreign judgments in China.Chapter 2 reviews,inter alia,the distinction between recognition and enforcement,the regime for recognition and enforcement of foreign awards in China and the application of the New York Convention in China.(https://www.daowen.com)
Part VIII,the closing one of the book,is “The New Conflict of Laws Act of the People’s Republic of China.” As its heading suggests,this part attempts to make an objective and comprehensive assessment of the Conflicts Act by tracing its history,scrutinizing its most important provisions,and drawing a conclusion.It should be noted that I have attempted to state the law on March 31,2011,although it has proved possible to take account of certain later developments when correcting proof.
Undoubtedly,the theme of this book is truly international.For this reason,I want it published in today’s “lingua franca”—English.Since language is the most important—and even the only—weapon in lawyer’s armory,the linguistic quality of this book was one of the utmost concerns to me.The readers should bear in mind that considerable parts of this book consist of the translation of original Chinese language works.This will become apparent in the style and the types of footnotes,which also refer to literature written in neither Chinese nor English language.Thus the book represents a symbol for the experience of comparative law.
As the author of this book,I am immensely grateful to the University of International Business and Economics Press.Their teamwork is always outstanding,and it is a joy to work with them.I am especially indebted to Ms.WANG Yu who,in my eyes,is a dream editor: I do not think anyone could have been more supportive.
Last but not least,I want to acknowledge the understanding and sacrifice of my family.Without the enduring love,encouragement,and support of my loving parents and dearest wife,little would be possible.
As always,I fully accept responsibility for the errors and omissions found in this book.Despite my best efforts,I am sure some will be identified.Conflicts scholarship is always a risky undertaking,[1]and a conflicts book written in a foreign language is perhaps even more fraught with reputational risk.I can only hope that a gentle and patient reader will find it a useful contribution to the understanding of Chinese private international law from the perspective of comparative law.
HUO Zhengxin
June,2011
Beijing,China
【注释】
[1]As Judge Porter of the Louisiana Supreme Court lamented about 180 years ago,this is “a subject,the most intricate and perplexed of any that has occupied the attention of lawyers and courts: one on which scarcely any two writers are found to entirely agree,and one which it is rare to find one consistent with himself throughout.” Saul v.His Creditors,5 Mart.(n.s.) 569,589 (la.1827).