The Sources of Chinese Private International Law
China has a tradition of adopting civil law systems; therefore,the Country always considers codification as the most important source of its law,including private international law.Basically,the sources of Chinese private international law can be divided into two parts: domestic sources and international sources.
China had not yet drafted the code of private international law so far.At the present stage,the major domestic source of its private international law is the“Act on the Application of Laws over Foreign-related Civil Relationships” (hereinafter referred to as the Conflicts Act,or Private International Law Act),19 which was adopted by the Standing Committee of the Eleventh National People’s Congress on October 28,2010.The passage of the Conflicts Act is considered to be a historic event in Chinese legislative history,as it indicates China has ultimately modernized its conflict-of-law rules after so many years of unremitting efforts made by the legislators and the scholars.In this sense,the significance of the Conflicts Act cannot be overstated.As PRC’s first statute of private international law,the Conflicts Act has some striking features in comparison with the existing conflict rules scattered in different statutes.
First,it is more systematic in structure and more comprehensive in content,which is the product of the efforts to eliminate the problems in the existing Chinese law.Though the Conflicts Act confines itself to choice-of-law issues,it provides a general part distinguished from other specific provisions,contains a relatively comprehensive coverage and introduces various new articles that did not exist in the Chinese law.
Second,strongly influenced and much inspired by modern foreign and international legislation,the Conflicts Act incorporates many of the most advanced developments currently discussed in private international law.[2]For instance,the principle of closest connection has been stipulated as a subsidiary principle of application of laws; party autonomy has been confirmed and expanded,besides contracts and family law,its application is extended to torts and real rights in movables; moreover,the Conflicts Act reflects the notion of the protection of weaker parties; most impressively,abandoning the traditional civil law tradition,the Conflicts Act follows the Hague Conventions which establishes habitual residence,rather than nationality,as the principal connecting factor to determine lex personalis.Thanks to the incorporation of those advanced notions,the Conflicts Act has successively modernised the substantial parts of Chinese private international law.
Nonetheless,as PRC’s first statute on conflict rules,the Conflicts Act has some obvious defects.First,the Conflicts Act is not a comprehensive code of private international law which contains but choice-of-law issues on civil relationships,excluding not only jurisdictional rules,rules of recognition and enforcement of foreign judgments and awards,but also choice-of-law issues on commercial relationships.[3]Second,some articles contained in the Conflicts Act are defective which need modification and improvement.Third,within the areas that are covered by the Conflicts Act,certain provisions are somewhat incomplete; thus,some legal lacunae remain unfilled.Therefore,the progress represented by the Conflicts Act is but “an imperfect improvement”.20
Moreover,as the Conflicts Act fails to integrate the conflict rules scattering among various separate laws and regulations,for the areas that are not covered by it,such as Maritime Act(arts.268-275),Civil Aviation Act(arts.185-188) and Negotiable Instrument Act(arts.96-101),the conflict rules in the related statutes should continue to be applied.
The major piece of legislation governing international civil litigation is Civil Procedure Law of the People’s Republic of China (hereinafter referred to as the CPL).21 Promulgated on April 9,1991 and revised in 2007,2012 and 2017 respectively,the CPL is the major law for the People’s Court to follow in the process of the adjudication of civil cases.Among the provisions of the CPL,the most relevant ones are contained in Part Four,entitled “Special Provisions of Civil Procedures for Cases Involving Foreign Elements.” This part consists of five chapters.Chapter 23 lays down the general principles relating to international civil litigation.Chapter 24 provides jurisdictional rules for international civil litigation.Chapter 25 deals with the mode and the time of service of litigation documents.Chapter 26,entitled “arbitration,” mainly concerns the regulation of arbitration conduct and the enforcement of arbitral awards rendered by PRC foreign-related arbitral institutions.Chapter 27,entitled “judicial assistance,” regulates the civil judicial cooperation between Chinese courts and foreign authorities.
Besides national laws,the judicial interpretations provided by the Supreme People’s Court enjoy de facto status as an important source of Chinese law,including private international law.According to the Law on the Organization of the People’s Court,the Supreme People’s Court (SPC) has the authority to give judicial interpretation under the following two circumstances: (i) the SPC can provide interpretation when it actually tries a case,if there is a request for interpretation submitted from a Higher People’s Court,and (ii) when a new law is enacted,the SPC is entitled to give a general interpretation about how the legislation should be implemented in adjudication.(https://www.daowen.com)
Though the relevant articles in the Law on the Organization of the People’s Court have raised the issue of constitutionality,most Chinese scholars argue that this practice is desirable for China’s circumstances: first,judicial interpretation can supplement the inappropriateness of legislation,such as inconsistency between different legislation,gaps left by legislation,etc; second,it can provide sound experience and conditions for the future legislation or the amendment of the existing legislation.As legislation in China is far from perfect at the current stage,they believe that such judicial interpretation is both beneficial and necessary.
A large of proportion of judicial interpretations given by the SPC falls into the latter category.So far,major judicial interpretations concerning private international law include,inter alia,“Opinions of the Supreme People’s Court on Implementing the General Principles of Civil Law of the People’s Republic of China (1988)” and “Opinions of the Supreme People’s Court on Several Issues Concerning the Application of Laws in Hearing the Cases Involving Foreign-related Civil or Commercial Contractual Disputes (2007)”; more recently,the SPC issued “Interpretation (I) on the Implementation of the Act on the Application of Laws over Foreign-related Civil Relationships of the People’s Republic of China” on December 28,2012,22 “Interpretation on the Application to the Civil Procedure Law of the People’s Republic of China” on January 30,2015,and “Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court” in 2018 respectively.
Another important source of Chinese private international law is international treaties to which China is a party.Since the 1980s,China has participated actively in the codification and unification movement of private international law and has cooperated fruitfully with international communities in order to settle foreign-related disputes more efficiently.It has acceded to dozens of multinational treaties on private international law matters and has signed a number of bilateral agreements on judicial assistance with other countries.In addition to treaties,a further source of private international law is international practice,although it is generally believed that an international practice does not apply to an international transaction automatically unless it is chosen by the parties.
As Chinese constitutional law is silent on the status of international law within Chinese legal system,it is problematic if a domestic Chinese rule is in conflict with international treaty stipulations or an international practice.However,it should be emphasized that before the abolishment of the General Principles of Civil Law (GPCL) on January 1,2021,[4]there was a solution to this problem in the aspect of civil law,as Article 142(2) of the GPCL provided as follows:23
If any international treaty concluded or acceded to by the People’s Republic of China contains provisions differing from those in the civil laws of the People’s Republic of China,the provisions of the international treaty shall apply,unless the provisions are ones on which the People’s Republic of China has announced reservations.
Article 142(3) of the GPCL went on to provide that international practice may be applied to matters for which neither the law of the People’s Republic of China nor any international treaty concluded or acceded to by the People’s Republic of China has any provisions.This provision shows that international practice is a source of private international law; however,its status is lower than both international treaties and domestic Chinese civil laws.What’s more,under this provision,the application of international practice is in any case a matter of discretion,rather than mandatory.
Unfortunately,the Civil Code of the PRC adopted on May 28,2020 fails to contain any rule regarding the relationship between international law and domestic law,thus,it seems that the Chinese authorities may make decisions on a case-by-case basis when conflicts arise.In the author’s opinion,the deletion of the rules on the relationship between international law and domestic Chinese law by the latest Chinese legislation,represented by the Civil Code,the Administrative Litigation Act (revised in 2014) and the Act on the Environment Protection (revised in 2014),is an important matter worthy of attention and academic debate.24
Finally,decisions and rulings of Chinese courts and the opinions of Chinese academics are also other potential sources of private international law.Even though civil law countries normally do not recognize the doctrine of stare decisis as such,there is no doubt that in a country as China,where the system of private international law remains substantially incomplete,judicial opinions and the decisions are resorted to in resolving conflicts problems where no other authorities are available.