Natural Persons
Since 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) under civil law doctrine.
As a general rule,civil rights capacity is the basis for civil conduct capacity.The civil conduct capacity of both natural and legal persons determines whether they may make binding amendments to their rights,duties and obligations,such as getting married or merging,entering into contracts,making gifts,or writing a valid will.Capacities,therefore,are regarded as prerequisites for taking civil actions because they are the matters directly affecting the establishment of the civil relations that are involved.
1.1 Civil Rights Capacity
In modern society,every person is a being capable of having rights,in other words,every human being is entitled to civil rights capacity from birth till death.However,there are several issues which may produce conflict of laws.
1.1.1 The Unborn Child
Most legal systems establish that the unborn child has no rights,as it has not yet become a person.1 But it is widely accepted that certain rights are reserved which will pertain to the child when (if ever) it becomes a person,such as rights to succession,in some legal systems rights of compensation for pre-natal injuries,or rights resulting from a contract between persons in favor of the nasciturus.2 For example,under Article 16 of the Civil Code of the PRC passed by the National People’s Congress in 2020,where a fetus is involved in the protection of the interests of the fetus,such as inheritance and acceptance of gifts,the fetus shall be deemed as having the capacity for civil rights.However,if the fetus is dead at birth,his or her capacity for civil rights does not exist from the beginning.3
The laws of different states differ quite dramatically as to what rights are reserved to the unborn child.Basically speaking,the conflict of laws on this issue is settled via lex causae,i.e.,the law governing the legal relationship which may have produced the right in issue.For instance,the lex personalis of the deceased,e.g.,decides whether the unborn child can succeed to the former’s estate; the law chosen by the parties of a contract determines whether a stipulatio alteri is admitted and if so,whether the third party may be an unborn child.
1.1.2 The Beginning of Civil Rights Capacity
As a general rule,a person is entitled to civil rights capacity once he was born.Nevertheless,there are some laws which require more than birth to constitute a person.For example,French Civil Code provides that it is necessary that the child be born viable,capable of maintaining life.4 Furthermore,Spanish law demands that it shall have lived for twenty-four hours after birth.What law is applicable when a child was born non-viable? In most legal systems,the personal law is decisive,i.e.,in common law countries,the law of the domicile which the child would have if it were a person; in civil law countries,the law of the nationality.
Some authors argue a different opinion,according to which the lex causae applies.5 Regrettably,this approach is likely to result in absurd consequence.In the famous example illustrated by Martin Wolff,6 an unmarried domiciled Frenchwoman living in concubinage with a domiciled Englishman gave birth to a nonviable child which died an hour after birth; its English father had died before the child was born,and had left a will under which he appointed the child about to be born as residuary legatee.If the lex causae applies,the child can succeed,since succession is governed by the law of the domicile of the de cujus.But as the child under its own (French) domicile has never been a person it cannot leave property to a successor,it can have no “heir.” Consequently,at the child’s death its property becomes ownerless! In this light,Wolff believed that the correct solution is that the child never succeeded to its father’s property,because it did not become a person under French law.
1.1.3 The End of Civil Rights Capacity
The civil rights capacity of a person is extinguished by death.However,determining when death has occurred requires drawing precise conceptual boundaries between life and death.This is problematic because there is little consensus over how to define the exact point when a person dies.Some states treat the cease of respiration as the criterion for determining death,while others define death as either the cease of brain wave or that of pulse.Moreover,the various legal systems have established different presumptions,particularly in respect of commorientes.In some legal systems,persons killed in a common disaster (e.g.,an air-crash,a traffic accident,or a shipwreck) are presumed to have died simultaneously,with the effect that neither of them can succeed to the other’s estate.7 In other systems,such as French law,8 a complicated order in which they are presumed to have died has been established.China follows the second approach,as Article 1121 of the Civil Code of China provides as follows:
Where several persons with relationship of succession die in a same occurrence and the order of the time of death is unable to be determined,it shall be constructed that the one without an heir dies first.Where all the deceased all have their own heirs,if they are of different generations in family hierarchy,it shall be constructed that the ones of old generation die first; while if they are of the same generation in family hierarchy,it shall be constructed that they die at the same time and no succession is entitled between themselves,and their heirs shall inherit their belongings respectively.
Then,which of those presumptions is to be applied if the disaster took place in a country that is not the country of the domicile or the nationality of the deceased person? Basically,under the conflict rules of civil law countries,those presumptions are treated as forming part of substantive law (succession law); while in common law countries,the judges usually regard the question as procedural.[1]Therefore,in civil law countries,the lex causae answers the question,whereas in common law countries,the lex fori does.
A declaration of death or of absence under the laws of civil law countries,[2]however,not only produces some rebuttable presumptions,but often creates some immediate and substantive effects on legal relationships between the probably deceased person and third persons,such as the wife,the heirs,or the life insurer.If,for instance,the wife marries again,and then the first husband,who had been declared dead,returns,he has under German law to accept that his marriage has been dissolved by the wife’s second marriage.9 Other legal systems solve this dramatic situation in a very different way,either by pronouncing that the prior marriage is to be upheld10 or by allowing the re-marriage only subject to a previous dissolution of the prior marriage by the court.11 Which of these systems is to be applied by a court when dealing with a private international law case? The conflict rules in most countries suggest that personal law is decisive.12
1.2 Civil Conduct Capacity
Civil rights capacity,in its proper sense,designates the faculty of a person to produce legal effects by his own act,whether by contracts,wills,assignments,or other transfers of rights,or by marriages,or adoptions,or by torts he commits.As noted above,a person is entitled to civil rights capacity once he was born; yet he does not possess full civil conduct capacity until certain requirements are satisfied,otherwise,he may have restricted capacity or even no capacity.Full civil conduct capacity corresponds to normal status of man.Where,as a result of particular status,such as minority or lunacy,certain disabilities arise,the person concerned has no capacity or only a restricted capacity.13
1.2.1 Personal Law as a Principle
Though basically speaking,age of majority and mental ability are two minimum requirements for a person to possess full civil conduct capacity,the laws of different countries differ widely with respect both to the grounds on which certain individuals are denied normal competence and to the scope of the disabilities imposed.For instance,under Chinese law,18 is the age of majority; Japanese law,20; Saudi Arabian law,15; Cambodian law,16; and North Korean law,17.14 Within such a setting,it is necessary to determine the applicable law to civil conduct capacity in case of conflict.Lex personalis,or the personal law,is a recognized choice-of-law principle governing the issues of civil conduct capacity.15 However,the meaning of personal law differs in different countries and in different times.
Before modern states arose and developed the concept of “citizenship”,the only and obvious test of personal law was domicile.After the 19th century,more and more civil law countries switched to the principle of nationality as the personal law.To be more specific,the principle that an individual’s personal law ought to be determined by his nationality was firstly endorsed at the beginning of the 19th century in the Code Napoleon,which provided that French law concerning personal status and capacity governed Frenchmen even when residing in foreign countries (Art.3(3)).While this French provision exerted a steady influence as a model,an additional powerful impulse was started in the same direction by an Italian patriot,lawyer,statesman and professor Mancini.16 In a famous address,delivered at the University of Turin in 1851,he proclaimed that a person should be subject in all respects affecting his personality to the law of his nation.The Italian Civil Code adopted this doctrine,referring the concept of nationality to political allegiance to a given state and extending the sphere of the personal law from problems of “status and capacity,” to which it was applied in France,to the whole law of family relations.
In this light,we can find that the notion that personal law should be determined not by domicile but by nationality owes its origins to the awareness of national identity that was born in the French revolution and strengthened in the Italian struggle for nationality.Moreover,since most European continental countries are the ones from which large portions of population emigrated during the 19th and 20th century,the adoption of the principle of nationality is more favorable for them to preserve the ties between the emigrants and their home country.
Nevertheless,the domicile principle had found support in other countries in the desire of immigration countries to incorporate new immigrants into the legal life of their countries as soon as possible,and thereby to avoid the difficulties that would arise if each new immigrant prior to naturalization were to be judged in accordance with the laws of his home country.These considerations have been of crucial influence in the United States,Australia and New Zealand.Therefore,there is a crucial difference regarding the meaning of personal law between civil law and common law countries.
Objectively,both nationality and domicile have merits and demerits respectively as points of contact of the personal law.With regard to nationality,the obvious advantage is that it is relatively easy to understand as a concept and normally is easily ascertainable.17 Moreover,age of majority depends primarily on the status of physical development of a person which,in turn,is dependent on race,climate and other natural conditions.Therefore,nationality in general is a proper connecting factor for the personal law.18 Nevertheless,it is objectionable as a criterion of the personal law on at least three grounds.First,it may be a country with which the person in question has lost all connection,or with which he has never been connected.19 For instance,it would be unreasonable that a Chinese,who has emigrated to the United States in his youth without becoming naturalized in the U.S.,should throughout his life remain subject to Chinese law with regard to such matters as marital and testamentary capacity.Second,nationality is a fallible criterion in certain situations,as a person may be stateless or may simultaneously be a citizen of two or more countries.Third,nationality cannot always determine the internal law to which a man is subject.This is the case when one political unit,such as China and the United States,comprises a variety of legal systems.(https://www.daowen.com)
On the other hand,domicile is endorsed by many common law countries for the following merits.First,domicile means the country in which a man has established his permanent home,and what can be more natural and proper than to subject him to his home law? Second,domicile furnishes the only practicable test in the case of such political units as the Unites States,the United Kingdom,Canada and Australia where the same nationality embraces a number of,sometimes diverse,legal systems.Nevertheless,domicile is far from perfect and is believed to have certain vices.First,it is not infrequent that the legal domicile of a man is out of touch with reality,for the exaggerated importance attributed to the domicile of origin may well ascribe to a man a domicile in a country which by no stretch of the imagination can be called his home.20 Second,the ascertainment of a man’s domicile depends to such an extent on proof of his intention,the most elusive of all factors,that only too often it will be impossible to identify it with certainty without recourse to the courts.
Perhaps a fair conclusion,in the words of Cheshire and North,is that as determinants of the personal law,nationality yields a predictable but frequently an inappropriate law; domicile yields an appropriate but frequently an unpredictable law.21
1.2.2 Exceptions to Personal Law
The notion that permanent characteristics of an individual are all to be regarded as incidents of his “status” and,therefore,all governed by the individual’s personal law,is a well-established principle.However,the rigid adherence to personal law principle may pose a risk to the safety of international business,i.e.,incapacities accompanying an individual wherever he goes may endanger others who bona fide enter into transactions with him.
Therefore,modern countries recognize that there should be an exception to personal law principle in the field of international business,which is fully illustrated by the Court of Cassation in the celebrated Lizardi case.22 Lizardi,a twenty-two-year-old Mexican,being still a minor under Mexican law,bought jewels in Paris; he would have been of full age had he been a Frenchman.When it came to payment he declined,relying on his lack on capacity under Mexican law.The French court,considering that the seller had acted “in good faith and without negligence or imprudence,” declared Lizardi was bound by his contract.This decision has been followed consistently by the French courts.Under this so-called “Doctrine of National Interest,” protection is given against excusable ignorance of foreign incapacities,dependent upon the circumstances of each individual case.This French approach now is well-known throughout the world.At present,it is established that a foreigner performing any civil or commercial act within the forum country,though he is incapable or restricted in his civil conduct capacity under his personal law,is deemed capable of performing such act if he would be capable under the forum law,and that transactions shall be valid in cases where the other party has not known it and has been unable to ascertain the incapacity.23
In addition,given the peculiar nature of immovables,most countries affirm that personal law principle does not apply to the contracts relative to immovables.Capacity for the purpose of this category of contract,correspondingly,is governed by the lex situs.
In conclusion,though personal law is a recognized choice-of-law principle governing the issues of civil conduct capacity,there are two major exceptions: first,in the field of international business,the civil conduct capacity of a foreigner who lacks capacity under his personal law and who in the country of forum has entered into a transaction intended to have effect in the country of forum,is to be determined in accordance with the law of forum when such determination is necessary for the security of honest commerce; second,the civil conduct capacity of the parties of the contracts relative to immovables is governed by the lex situs.
1.3 Conflict Rules under Chinese Law
Prior to the enactment of the Conflicts Act of 2010,China had no conflict rule governing the civil rights capacity of an individual.Chinese scholarship used to advocate that the personal law should govern the issue in principle.Given the personal law,whether the law of nationality or that of domicile,is not perfect,they further argued that if the lex fori or the lex causae was more appropriate in specific cases,the personal law should be replaced.24
With regard to civil conduct capacity of an individual,China had no general conflict rule before 2010 either.The most notable provision under which the People’s Courts determine the law applicable to civil capacity was Article 143 of the General Principle of Civil Law which provides that if a citizen of China resides in a foreign country,the law of that country may apply to determine his capacity for civil conduct.25
This provision,however,has been criticized by many Chinese scholars because of its inadequacy in handling civil capacity issues and its inaccuracy in expression.On the one hand,Article 143 only deals with Chinese citizens and does not contain rules that could be generally applied to non-Chinese.26 Furthermore,it is unclear whether the residing country actually means the country of domicile,since “residing” has no precise definition in legal context.
In an attempt to overcome the shortcomings of Article 143,the Supreme People’s Court offered more specific guidance in the determination of the law governing civil conduct capacity in 1988.These rules are:27
(1) The capacity for civil conduct of a Chinese citizen residing in a foreign country shall be determined by Chinese law if such conduct occurs within the territory of China.The law of a foreign country in which the Chinese citizen resides may apply if the conduct occurs in such foreign country.
(2) If a foreigner who conducts civil activities in the sphere of China is deemed to have no capacity for civil conduct under the law of his own country but has such capacity under Chinese law,he shall be regarded as having capacity for civil conduct.
(3) The capacity for civil conduct of a stateless person shall,in general,be governed by the law of the country where he resides,or the law of the country of his domicile if he does not reside in any country.
Though the above provisions partially fill the gaps left by the Article 143 of the GPCL,there still remain considerable loopholes and unsatisfactory points.In the first place,these provisions,again,use the ambiguous wording of “residing,” which would,inevitably,increase uncertainty in judicial practice.
Second，the relevant expressions are not consistent with each another which constitutes an obvious flaw of legislative technique； to be more specific，when describing the conducts that occur in China，the first paragraph uses the wording of “within the territory of China” （在我国境内），while the second “in the sphere of China” （在我国领域内）.Under the normal understanding of a legal text，different expressions in the same instrument should have different meanings； nevertheless，there is no reasonable grounds justifying the differences between “within the territory of China” and “in the sphere of China.”
Third and more unfortunately,the third rule is fundamentally defective which is impossible to be applied in practice.As we know,residence requires “habitual” presence merely,while domicile presupposes the intention of indefinite residence;[3]in other words,it is more difficult for a person to acquire a domicile than to have a residence.However,to our surprise,this rule provides that the civil conduct capacity of a stateless person shall be governed by the law of the country of his domicile in case that he does not reside in any country.This,apparently,is an illogical arrangement: if a person does not reside in any country,how come he has a domicile in a country?! We cannot help but regret the mistake made by the drafters of this important judicial interpretation.
Given the conflict rules in capacities of natural persons were far from satisfactory,the Conflicts Act of 2010 has devoted an entire chapter (i.e.,Chapter Two) to regulating the status,capacities and other personal rights of civil parties.
What merits particular strong emphasis is that habitual residence is established as the principal connecting factor to determine the lex personalis.The most important reason for China to deviate from the orthodox position of civil law28 is believed to be that lawsuits are usually brought where parties live,the nexus of habitual residence favors application of the lex fori,whereas reliance on the lex patriae tends to increase foreign law problems; that is to say,as in most foreign-related civil cases that Chinese People’s Courts hear,the parties have habitual residences in China; switching to establishing habitual residence as the principal connecting factor can increase the application of the lex fori,which is in conformity with the interests of the forum.
Consequently,under the relevant articles of Chapter Two,the law of habitual residence governs civil rights capacity (i.e.capacity to be entitled to rights),civil conduct capacity (i.e.capacity to act),declaration of death or of absence and,the right of personality of a natural person.29 When it is unable to ascertain the habitual residence of a natural person,his/her present residence is deemed to be his/her habitual residence.30
Nonetheless,there is one exception to the principle of habitual residence: when affecting a jural act (excluding the jural act relating to family or succession),a natural person’s civil conduct capacity shall be governed by the lex loci actus,provided that he/she has such capacity under that law,whereas he/she lacks it under the law of his habitual residence.31 The rationale behind this exception is evident: protecting the security of transaction.With regard to the jural acts relating to family and succession,as it has direct impact on personal status of a natural person,the application of lex loci actus may provide opportunities for the parties to evade law; therefore,such acts are excluded from the exception.