History after the Founding of the People’s Repub...
The KMT-headed ROC central government moved to Taiwan in December 1949,followed by a large number of Mainlanders who eventually accounted for about 13 percent of Taiwan’s entire population.From then on,Taiwan and Chinese mainland have had their own distinct legal systems.
In the mainland,once the People’s Republic of China was established,the Communists abolished all Kuomintang laws,including Act on the Application of Law of 1918,and judicial organs.Instead,the newly established regime purported to build a brand new legal system of New China as soon as possible.Nevertheless,sixty-one years has passed before the People’s Republic of China claimed that “a socialist legal system with Chinese characteristics is established” in October 2010 when its first Conflicts Act was enacted by the Standing Committee of the National People’s Congress.12 Indeed,looking back at these 61 years,a commonly expressed assessment by Chinese scholars is that while significant achievements have been made,painfully mistakes have also been commited at some stages; the journey has not been an easy and straightforward one.
In fact,the study of private international law has only been regarded as an independent discipline after China’ reform and opening up to the outside world in the late 1970s,and for many years,private international law was regarded by scholars in China as a forbidden,even perilous,academic pursuit.The anti-foreign sentiments that dominated China from the 1950s to the 1970s were so pervasive that it was difficult for any Chinese,even in academic study,to associate with any Western ideas or influence.This same attitude was also manifested by the judiciary,in its reluctance to apply foreign law to civil cases involving foreign elements.
In addition to factors related to China’s long-time isolation from the outside world,past Chinese abhorrence towards the study and application of foreign law could also be attributed to the lack of understanding of other legal systems generally and of the functions of private international law in particular.Many Chinese still vividly recall the bitter experiences suffered under the foreign consular jurisdiction imposed during the 19th century and early 20th century,and until recently,there still remained an apprehension that the application of foreign law would be injurious to Chinese national interests and an abdication of China’s territorial sovereignty.
This attitude has,however,become untenable as a result of China’s adoption of the reform and open-door policy.With the development of China’s external economic cooperation and trade,increasing numbers of disputes involving foreign factors arise and hence are brought to the Chinese People’s Courts.Moreover,China’s accession to the WTO in 2001,results in a greater proliferation of international civil and commercial disputes of ever increasing complexity.Meanwhile,with huge number of Chinese citizens overseas,China has begun to realize the conflict rules are needed to coordinate the interaction between the legal systems involved in order to deal with rights and obligations of Chinese nationals.Under such a circumstance,private international law was introduced in China in the early 1980s to assist in the resolution of these disputes.
Through the development of forty years,China’s private international law has made significant progress; however,objectively speaking,prior to the enactment of the Conflicts Act in 2010,Chinese private international law remained far less sophisticated in legislation,theory and practice as compared with that of the United States,major European countries and its East Asian neighbors,such as Japan and Korea,which was reflected in the following aspects:
First,prior to the Conflicts Act enacted in 2010,private international law legislation in China was scattered throughout different laws and there was clearly a lack of systematic form.Chapter Eight of the General Principles of Civil Law (GPCL) was the most significant and primary legislation on private international law in China until 2010,whose title is “Application of Laws to Civil Matters Involving Foreign Elements.” However,like the rest of this Law,Chapter Eight does not purport to be a comprehensive codification.Instead,it contains but nine articles that deal with contractual obligations,torts,and succession,which are not only limited to certain matters,but are also often hard to follow,particularly in complicated cases.Though later,some other relevant national laws,such as Maritime Act,Civil Aviation Act and Contract Act,have been enacted in succession which contain certain conflict rules that fall within their scope of regulation respectively,Chinese legislation on private international law during this period,for a variety of reasons,remained fragmentary,incomplete,hesitant,and less influential than in other areas of private law.
Second,private international law scholarship in China,during this period,by and large was still focused on the introduction of foreign doctrines,and no cognizable school of Chinese private international law has yet emerged.It is true that scholars in China have made great efforts to try to develop a school of Chinese private international law.Equally true is that several new ideas and thoughts are being discussed,[7]but the fact is that these ideas and thoughts all need to be further refined and improved,13 and it is fair to say that there is a long way to go before Chinese scholarship of private international law can make any significant international contributions or win international recognition.
Last,some judges in the People’s Courts are not ready and lack the quality,experience,and knowledge to handle complicated foreign related cases,particularly when jurisdiction and choice of law are at issue.Although the number of foreign civil cases is growing by leaps and bounds over the years,the precedents of the application of foreign law designated by the conflict rules by the People’s Courts have been quite limited.According to the statistics,among all the foreign civil and commercial cases that have been tried by the People’s Courts,only less than 10 percent applied the conflict rules,and the overwhelming majority of these cases applied Chinese domestic law without any explanations.14
Despite these criticisms,it is submitted that one should not underestimate the significant progress that China has made on scholarship and legislation in private international law during the past 40 years.(https://www.daowen.com)
Most importantly,on October 28,2010,the Standing Committee of the Eleventh National People’s Congress adopted China’s first statute on Conflicts Law— “Act on the Application of Laws over Foreign-related Civil Relationships” (hereinafter referred to as the Conflicts Act,or Private International Law Act).15
This 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; more importantly,the passage of this long-expected Act marks that “the socialist legal system with Chinese characteristics” has been successfully established as scheduled,which implies that China,the largest developing country,and the second largest economy in the world,can now claim to have a systematic legal system.
Basically speaking,the adoption of the Conflicts Act is a response to the increasing volume and growing diversity of international civil disputes.Another impetus was the acceleration of the development of private international law across the globe,notably the adoption of the Rome I and II Regulation by EU,[8]and legislative reforms in Germany,Switzerland,Italy,and the United Kingdom as well as China’s neighbors such as Japan and South Korea.
The promulgation of the Conflicts Act,needless to say,represents that China has succeeded in achieving the goal of codifying substantial parts of its private international law whose significance cannot be overestimated.
Nevertheless,the Conflicts Act is far from being perfect,for instance,it contains choice-of-law issues on civil relationships only,thus failing to keep up with the worldwide development of private international law characterized by a trend toward comprehensive codification.16 Moreover,some articles included in the Conflicts Act have aroused doubts and even criticism.The clamor comes mainly from within China’s legal communities and stems from a view that the Conflicts Act’s final draft ignores the suggestions and opinions put forward by conflicts scholars and,its hasty passage is an expedient to satisfy the fulfillment of political target.
On December 28,2012,the Supreme People’s Court of the PRC promulgated “Interpretation (I) on the Conflicts Act”.The Interpretation (I) attempts to provide concrete explanations on the abstract articles mainly in Chapter One of the Act and to create new provisions to fill the lacunae.In this respect,the adoption of the Interpretation (I) can be regarded as a large step towards building a modern private international law system.
As a matter of fact,since the 1980s,judicial interpretation has been playing an increasingly prominent role within the Chinese legal system,as one Chinese scholar pointed out,it is a paradox that the SPC,a relatively weak supreme court in a socialist country,enjoys such wide authority to interpret law that the supreme court of any other country can hardly imagine.Although the SPC,when exercising this function,would seem to usurp the role of the legislature (comprising the NPC and its Standing Committee),most Chinese scholars acknowledge the merits of and need for the SPC’s activism in this regard,to address the institutional defects in the Chinese legislative system.
As the NPC is in session for about two weeks each year,it has little time to adopt more sophisticated statutes or to review problems associated with the application of existing statutes.Though the SCNPC enjoys legislative authority when the NPC is not in session,it is not highly capable of performing such a duty,as it is basically composed of retired senior officials instead of legal professionals.Consequently,many Chinese statutes have suffered from being either inapplicable due to their ambiguous language or outdated by rapid social changes.In such circumstances,the SPC has,through issuance of judicial interpretations,helpfully stepped in to fill a lacuna left by the Chinese legislature.It is thus unsurprising that the NPC and its Standing Committee are not only aware of the SPC’s ultra vires interpretations,but are the willing beneficiaries of them.17
In this light,it is understandable why the Conflicts Act,like many other statutes,are fraught with the problems such as simplistic framework,ambiguous language,etc,and why the legislators decided to leave various complex issues to the SPC when they enacted the Act.For the same reason,the importance of the Interpretation (I) is comparable to the Act itself.Indeed,as the Interpretation (I) contains more detailed provisions and provides solutions to certain complex issues,it is indispensable for not only Chinese judges in court trials,but also lawyers inside and outside China.
Detailed assessments of the Act and the Interpretation (I) are reserved until later parts.