Introduction

As equality of human being is a most treasured principle of civilized society,every person,in principle,is being capable of having rights.As to the qualification of a person as an actor engaging in international civil and commercial activities,it further depends on his civil rights capacity and civil conduct capacity,or “Rechtsfähigkeit” (personality to acquire rights) and “Geschäftsfähigkeit” (capacity to engage in legal transaction) in German terms,prescribed by law.^[1]In modern society,a citizen of a given state can be an actor of international civil and commercial relationship as long as he possesses both civil rights capacity and civil conduct capacity under the law of that state.

As a general rule,a state normally does not impose any restrictions on its citizens possessing both civil rights capacity and civil conduct capacity to engage in international civil and commercial activities,subject to a few exceptions,if at all.^[2]Nevertheless,it is far more complicated when the qualification of foreigners as the actors of international civil and commercial activities is concerned.Generally speaking,the recognition of certain status of foreigners by the forum state is a precondition for them to be the actors of international civil and commercial relations.However,in the course of human history,two opposing extremes occurred,both lingering for a considerable long period,i.e,foreigners’ qualification to engage in civil and commercial activities was completely rejected or they enjoyed superior status to the citizens of the forum state.^[3]Both these two extremes,as the reflections of inequality as the consequence of certain historic background,seriously impeded the development of international civil and commercial exchanges.

It is only after the end of the Second World War when the notion of equality has been universally accepted that the principle of foreigners’ entitlement to an equal status in civil and commercial matters has gradually been established as an international practice.Within such a setting,it is beyond any dispute that foreigners nowadays can be the actors of international civil and commercial relations in the forum state.(https://www.daowen.com)

Nevertheless,this does not mean that the status of foreigners is identical to that of citizens,insofar as many states do not confer an absolute equality on foreigners in order to safeguard the interest of the forum.For instance,in 2006,Chinese government issued an administrative order,imposing various restrictions on the capacities of foreign corporations and foreigners to purchase houses and apartments in several Chinese metropolises,for the purpose of restraining the rocketing real estate price in those Chinese cities.2 Another example,under the Russian law,foreign investors and Russian companies owned by them will not be able to establish control over federal strategic deposits in Russia.

Therefore,though according an equal treatment to foreigners is a universally accepted principle,there exists some de facto differences between foreigners and citizens,and between the foreigners of different states as well.When determining the status of foreigners,two connecting factors are decisive,i.e.,“nationality” and “domicile” (or “habitual residence”) which will be discussed in detail in the following sections.