Early History
It is commonly believed that private international law occurs as a combined consequence of four basic conditions: (a) differences in laws and the legal systems of different countries,(b) close civil relations and business transactions among the countries,(c) granting of civil status to foreigners (both natural and legal persons) by the forum country,and (d) recognition of the extraterritorial effects of foreign laws in civil and commercial matters.[1]
Some Chinese scholars believe that such conditions certainly existed as early as in the 7th century,when the Tang Dynasty came into its prime and international trade was active in East Asia,especially in Chang’an,the capital of the Chinese Empire.2 Indeed,according to them,the Tang Dynasty furnished the earliest choice-of-law rule ever discovered in China.
Created in 624,modified in 627 and 637,and enhanced with a commentary (the Tanglvshuyi),[2]the Tang Code,is considered as the oldest legal code in the history of Chinese law of which a full copy has been found which purported to represent the greatest achievement of Chinese ancient law.It is composed of 12 sections that contain a total of more than 500 articles which became the basis for later dynastic codes not only in China but elsewhere in East Asia.
The first title of the Tang Code is “Mingli” which provided the fundamentals of the Code where a typical conflict rule was incorporated.Article 6 of this title may be translated as follows： “[I]f both parties of infringement belong to the same foreign ethnic group，the customary law of their own shall apply； if the parties belong to different ethnic groups，law of the Tang Empire shall apply.”[3]With scholastic acumen，Chinese scholars conclude that this is the earliest conflict rule that China had enacted.3 They specify that the article is a combination of lex partriae and lex loci actus insofar as the first part embodies lex partriae whereas the second part lex loci actus.Chinese scholars feel proud of the article in the sense that it reflected a cosmopolitan approach to solving multistate problems which was a manifestation of both confidence and strength of the Tang Dynasty during the 7th century.However，it should be noted that，in Chinese history，a code，if any，applied to both civil and criminal cases； and in this respect，the argument that the above provision reflects the earliest conflict rule in China is highly arguable.
Between 1271 and 1368,China suffered occupation by the Mongols,which is a period of time in history that the Chinese call the Yuan Dynasty.The Mongolian tribes that destroyed the Song Dynasty,Tang’s successor,brought along their own laws,but did not eradicated Chinese law.Consequently,once the invaders settled in formerly Chinese territories,they lived together with people whose legal relations were governed by different rules.Indeed,the Mongols introduced a four-level class system.The highest and simultaneously ruling class on top of the system was taken in by the Mongols.The ethnic groups from west and central Asia,including Uyghurs,immigrants from the west and some clans of Central Asia (“semu ren” which literally means “persons with colored eyes”) belonged to the second class.They were followed one step down by the Chinese,Kitans,Jurchens and Koreans,from the north of the empire.The class on the lowest level was occupied by subjects of the conquered Song Dynasty.If persons from different classes were involved in one legal dispute,they would be subject to different rules.In this respect,the legal environment of the Yuan Dynasty in China was similar to the Personal Law Period of the Middle Ages in west Europe to some degree.4
The Ming Dynasty and the Qing Dynasty，for most of the time，adopted closed-door policy，enacted strict bans on private maritime activity，and tried to remain separate，or isolated，from the rest of the world.For example，law of the Ming Dynasty prohibited overseas business，and refused to recognize the effect of foreign law，providing that “any violation committed by foreign ethnic people shall be governed by law of the Ming Empire.”[4]This provision suggested that the Ming Dynasty followed an approach of absolute territorialism，barring the application of any foreign law.The rationale behind this approach is that “these foreign ethnic people，though not the subjects of the Ming Dynasty originally，are regarded as so once they submit themselves to the authority of the Ming Dynasty....Hence law of the Ming Dynasty shall apply.”[5]Essentially，the deep-rooted sense of superiority of the Chinese empire over all other nations is a major reason，inter alia，for disregarding the status of foreign people and the effect of foreign law.Another issue worth noticing is the wording of the above provision indicates definitely that it was a criminal rule in nature，inapplicable to civil disputes，as opposed to the rule contained in the Tang Code which applied to either civil or criminal disputes.
Briefly,the isolation of China from the outside world and the blind arrogance,together with the tradition of Chinese law,i.e.,emphasizing criminal penalty while disregarding civil remedy,suffocated the systematic existence and development of private international law in China during that period.
After the mid-19th century,the political and legal situation changed dramatically when China had to enter into many unequal treaties with great powers including England,France,Germany,Russia,Japan and the United States; these powers opened up Chinese ports and trading centers,were granted extraterritoriality and a degree of separate jurisdiction to foreign nationals which was called “foreign consular jurisdiction,” and involved the cession or “lease” of territories on the edge of the Chinese Empire.What merits emphasizing is that foreign consular jurisdiction was one of the special privileges for aggression which the imperialists wrested from China.Under the so-called consular jurisdiction,nationals of imperialist countries residing in China were not subject to the jurisdiction of Chinese law; when they committed crimes or became defendants in civil lawsuits,they could be tried only in their respective countries’ consular courts in China,and the Chinese government could not intervene.In this manner,the judicial sovereignty of China had been undermined.
In 1899,indeed,the great powers,apparently in preparation for a grand annexation of the whole of China,concluded a treaty which divided up the territory among them into “spheres of interest.”5 As a matter of fact,the crisis that China faced at that time fundamentally changed the course of historic development of Chinese society which thoroughly wiped out the arrogance and the sense of superiority that this nation had treasured for thousands of years.As LI Hongzhang,the then Prime Minister of the Qing Dynasty lamented,“[T]he great changes that China is witnessing have never happened during the last three thousand years,and the formidable enemies that China is fighting against have never emerged during the last three thousand years.”6
Only under that circumstance,did the rulers of the late Qing Dynasty come to realize that fundamental internal reforms were needed if China wanted to withstand competition from the great powers and avoided becoming the plaything of imperialist ambition.In the legal reform,the late Qing Dynasty attempted to establish legal codes based on European models.Because of the German victory in the Franco-Prussian War and because Japan was used as the model for political and legal reform,the codes which were adopted were modeled closely after that of Germany.
Consequently,the efforts to reform traditional Chinese law and to build a modern legal system were assisted by the medium of the Japanese legal language and law developed in Japan during the Meiji period which involved in large part Japanese translation of European Continental laws.It was during this period that private international law in modern sense was introduced into China for the first time.7(https://www.daowen.com)
In the early 1900s,the Qing Dynasty began to enact various codes successively,following,naturally,the Japanese model which,in turn,was based on German law.It should be noted that in 1906,a draft of Civil and Criminal Procedure was submitted to the Emperor which contained five chapters and 256 articles.Chapter V of the draft was entitled “cases between Chinese and foreign parties,”8 which provided some articles involving foreign civil litigation.The inclusion of such articles in the draft suggested that the need for private international law was gradually recognized by the rulers at that time though a comprehensive code of private international law was not listed in the legislative reform.
Needless to say,the reform aimed to save the Qing Dynasty from collapse; however,it came too late.The crumbling Empire was extremely powerless abroad,inside there were riots against foreigners,power struggles between reformists and conservatives,and the foreign debt was skyrocketing; this led to the complete collapse of the Qing Dynasty in 1911,whereupon the Republic of China,the first Republic country in Asia,was established.
The republic government during the following years was admittedly only a shadow government,since most of the country was in the power of mutually hostile generals and party leaders; however,a large number of laws were codified during this period when a certain degree of stability was achieved.
On August 5，1918，“Act on the Application of Law” was promulgated which heralded that China had its code of private international law for the first time in history.The Act，principally based on the Japanese Hōrei of 1898，[6]contained seven chapters and 27 articles，which provided both general principles and various specific conflict rules for personal status，succession，property and formal validity of conduct.9 A close examination of the Act will reveal that it was not only similar in content to the Hōrei，but also incorporated a number of legal terms from Japanese Hōrei of 1898 which did not exist in Chinese legal language at that time.To be more specific，some of its outstanding features are as follows：
First,the system of rules was based on Savigny’s system which meant that categories of issues and connecting factors were the key components and combinations for determining the applicable law.Since the Japanese Hōrei of 1898 was subject to Savigny’s doctrine,it is no surprising that the Chinese Act,its follower,strictly adhered to Savigny’s multilateralism.
Second,nationality was chosen as the connecting factor for personal and family matters in each of the following: civil status and legal ability of persons (Article 5,Paragraph 1); family relationships and rights and duties arising therefrom (Article 9-17); and successions and legacies (Article 20,Article 21).
Third,party autonomy was adopted for contracts,as Article 13,Paragraph 1 provided: “[T]he constitutive elements and the validity of contractual obligations are governed by the law chosen by the parties.”
Last,aside from party autonomy,the fundamental principle behind the rules was presumably by the application of the law of the place with which the issues were most significantly connected in accordance with Savigny’s thinking.This principle sensibly appeared in Article 13,Paragraph 2,according to which,if the intent of the parties was unknown regarding the governing law of their contract,it was to be governed by the law of the country to which they belonged in cases where the parties were commonly its nationals,or otherwise,by the law of the place which was considered to have the most significant connection in effect with the contract.
Objectively speaking,this Act was well drafted which incorporated the most advanced doctrines of private international law at that time and was regarded as one of the most detailed and comprehensive codes available in those days.Regrettably,under the general legal and political background during the early 20th century the Act was never in good operation,insofar as the unequal treaties with foreign countries,and “foreign consular jurisdiction,” in particular,made the Act almost unenforceable.10
When the People’s Republic of China was founded,it abolished all the laws of the Republic of China; therefore,this Act ceased to take effect in Chinese mainland since 1949,which,nevertheless,was still effective in Taiwan till 1953 when it was replaced by a new act entitled “the Act on the Application of Law in Civil Matters involving Foreign Elements.”11