Historic Development of Chinese Private International Law - Article Example

Historic Development of Chinese Private International Law and Historic Development of ChinesePrivate International Law Introduction Right from 1978, China’s private international law has enjoyed textbook coverage, underwent tremendous academic researches and become a subject of discussion in the media and the public sphere. The studies on scholarly issues, to some degree, have helped to demystify several puzzles in the judicature, legislation and the advancement of the discipline of Chinese private international law. It has also become part of various theories in the representation of one body of wings. In as much as there are some defects and issues, Chinese pedants have both the capacity and vision to develop a theoretical system for private international law with Chinese features1. Following the enactment of the process of reform and the opening-up in 1978, the destiny of China has never been the same. For the last three decades, China has realized progress on an unprecedented magnitude. Its economy is skyrocketing as the legal system undergoes continuous improvements. We can deduce that it is the reform policy coupled with the opening up that has attracted the international community to China. This guiding principle has also enabled China to familiarize itself and have an understanding of the international arena2. Within the last three decades, China has also witness a tremendous development in its legal academy, an impact of which much greater research and high number of improved performances have been encouraged and promoted. A case in point is the development of private international law. The nation’s private international legal structure has turned out to be more comprehensive, efficient and effective, especially in view of the actualization of Chapter IX of the draft Civil Code. It is possible to project with certainty that in the few years to come, the Chinese private international legal structure will be one of the most popular systems in the planet, with respect to both structure and composition3. The inception and growth of law and the social context within which it exists are inseparable. The things that private international law oversees are the international civil and commercial legal link. As such, its occurrence and progress cannot be realizable without clear-cut state policy together with a social environment in under which the Chinese can enjoy equal interaction with the international community. Since 1949, a period when new China was formed, to 1978, owing to historical reasons, China was in a comparatively confined social environment4. It was not possible for the nation’s private international law to advance quickly. The theory of China’s private international law was majorly drawn from that of USSR. There were very few relevant researches and academic documents on private international law. In 1978, the actualization of the reform and opening up policy, together with the subsequent increase in commercial and civil interaction relating to foreign players have not only offered the earth in which the international law exists, but also resulted to the positive growth of private international law5. The Birth and Evolution of Chinese Private International Law The Chinese private international legal experts hold the view that the earliest conflict rule was established in China. The Tang Code was set up in 651 AD during the Tang dynasty, a time when China enjoyed the privilege of being the economic and cultural hub of Asia. There were also numerous business transactions with the country’s bordering nations. The code carried provisions guiding legal relations with foreign parties, which was approximately six centuries older than the Italian statute theory6. The code stated that any form of disputes relating to individuals who are considered as subjects of the same sovereign region were to be addressed in accordance with the law of the mentioned sovereignty. Regarding persons belonging to different sovereignties, the code was to apply. It his however worth noting that in the Chinese history, there was no difference between a civil and penal code to the tort with the international community. Thereafter, there was never any legal development of private international law in the country till 1918. In this year, the then nationalist government drafted and passed the legislations of Application of Law drawn from the private international law legislations in Japan and Germany, under intense push by the Chinese citizens to disband the foreign consular jurisdiction enforced by the imperialist nations7. Under the consular jurisdiction, legal conflicts relating to foreigners in China were not under the Chinese law. They were adjudicated by the consular of the external countries associated with the legal disputes. The laws carried 7 chapters and 21 articles, inclusive of the supplementary provisions, general provisions, family, persons, succession as well as jurist act. This was the earliest organized codification of private international law in the history of China. Under the 1918 Rules of Application of the Law, contracts and torts were not covered8. The use of the rules went on after the reign of the KMT government from 1927 to 1949. This is the time when the People’s Republic of China was formed, which disbanded all the legislations passed during the KMT era, especially the Rules. Before 1979, few documented private international legal rules were in existence. Some provisions were disorganized and scattered in a few Consular Treaties of the 1950s between China and other states. In fact, the People’s Republic of China is viewed as a relatively new member of the global community. The nation’s short history of accommodating the international community, and its subsequent lack of international experience, are to be faulted for the insufficient advancement of its private international law9. Upon the implementation of the opening up policy in 1979, the last twenty years have seen a tremendous development in the Chinese private international legislation owing to its economic transformations meant for catapulting the country towards the mainstream of the global economy. Many hold the view that the primary international law system bearing Chinese features has been primarily drafted within a very short period of time. Presently, the private international legal rules in the republic are disorganized and scattered in several statutes and regulations. This includes the Succession Law of 1995, the General Principles of Civil Law of the PRC of 1986, and the Instrument Law of 199510. The rules that are carried in the statutes relates to the jurisdiction to adjudicate international civil cases, the choice of law, and the putting into force of foreign judgments and arbitral honors. For China to put into operation the rules, the Supreme People’s Court of China has provided various views and explanations which also possess some private international law rules like the 1988 Opinions of the Supreme People’s Court on the Implementation of the General Principles Civil Law. Further, there is the 1992 Explanations of the Supreme People’s Court to the Questions Concerning the Implementation of the Foreign-related Contract Law of the PRC11. Another major source of Chinese private international law is the international treaties which China happens to be a party to, as well as the international customs. From 1980s, China has taken actively taken part in the codification and unification of the private international law. It has successfully undertaken cooperation with the global arena so as to address the foreign civil conflicts in a more efficient way. For instance, in 1986, China joined the International Institute for the Unification of Private Law (UNIDROIT), and later became a member of the Hague Conference on Private International Law in 1987. China has also consented to numerous international statutes and treaties concerning private international law. It has also acceded to as many as 78 bilateral unions on judicial assistance with other nations till July 200612. As stated earlier, law in China cannot could not come up or grow outside the setting of its social environment Private international law mainly tackles civil relationships that have foreign parties. For that reason, in the absence of an open policy and social context for interaction or communication between the locals and foreigners, private international law cannot be there. Since 1949 to 1978, China has witnessed minimal communication between it and the international community. In such a restrained state, private international law could not be crafted. In this period of time, there were very few scholarly researches on private international law13. Scholarly researches have since advanced. Many publications such as books and journals have been produced and translated. With regard to the theory of private international law, China previously derived it from the theory developed by USSR. However, since 1978, it started adopting western theories. In 1978, private international law was formally incorporated into the Chinese constitution. Today, scholars are hinging on experience and practice to come up with a theoretical framework possessing Chinese features14. On matters pertaining to the practice of international law, increasing number of lawsuits having foreign-related aspects are being submitted before China’s courts. As the volumes of such cases rise, the foreign features in the cases getting more sophisticated. There is also an increased application of international agreements, foreign laws and international customs whenever such cases are brought before the Chinese courts15. In 1978, the nation began to actualize the transformation and opening up policy. During this time, private international law which regulates the international civil and commercial legal relations slowly and steadily caught attentions. From then on, researches on private international law began to mushroom. In 1981, Dingliu and Shangjin Zhang compiled the first book on the subject, titled Private International Law. Later, Zhuang Yao and Jisheng Ren would generate Fundamentals of Private International Law. However, the first textbook of private international law under the unified national compilation since the formation of new China, was Private International Law, authored by Depei Han16. Han had certainly played an integral role in the spread of knowledge on private international law within the Chinese national frontiers, further necessitating the studies on China’s private international law. Depei Han, together with experts like Disheng Ren, Ding Liu, Shuangyuan Li, Lixin Chen, Xueshan Zhu, Zhuan Yao, Zhongbo Zhang, Xianyu Yu, are lauded for being at the forefront in private international legal researches. They are also remembered for inculcating knowledge to many scholars in the field of private international law, thereby opening a wide avenue for the advancements of China’s private international law17. From 1986, when the General Principles of Civil Law was publicized, Chinese pedants have been more passionate about the research on private international law. As a result, private international law has undergone a tremendous development in the nation. As an academic discipline, the Law Institute of the Chinese Academy of Social Sciences was the earliest to kick off admission of postgraduate students in private international law in1978. From then on, Wuhan University, Renmin University of Chin, Peking University, and China University of Political Science and Law, began to enroll postgraduate students in private international law. In 1982, Peking and Wuhan Universities began to offer doctoral studies in private international law. In 1997, the Academic Degree office of the State Council merged together private international law, public international law and international economic law18. At the moment, the number of institutions of higher learning given the nod to offer doctoral degrees in international legal studies has risen to beyond 16, with more than 60 training and research universities certified to offer masters degree in the discipline. More learning resources are being developed to meet the increasing number of graduate students pursuing the subject in recent times. At the turn of 1980, the course is open and available in both Law departments in universities and syllabus of universities offering Journalism and Mass Communication. The sub disciplines of the subject are also taught in institutions offering courses related to political science, management and economics19. The Chinese Legal and Education Guiding Committee, in 1997, listed private international law as among the 14 major courses for undergraduate students pursuing law in institutions of higher learning within the boundaries of China. In 2005, private international legal studies offered by Shandong Weifag College, was ranked as the republic’s exquisite course. As a result, the same course offered by Wuhan and Zhongnan Universities, was awarded as national exquisite course. Presently, publications on private international law, especially Depei Han’s textbooks, are found in university shelves. Since 1983 to 2009, about 100 books had been authored and published. This includes books being compiled by law departments in those universities for their internal use. From the first compilation of rules governing Chinese Selection of Teaching Reference Materials of Private International Law, to the collecting of rules and cases in both English and Chinese languages, the literature contents relating to private international law has been enriched20. With regard to cases, materials and publications focusing on the nation’s new form of cases have been surfacing in present years. Scholars are therefore working on ways of attaching more values to the experiential studies. The two most significant works on the conflict of law in new China include Study on China’s Law by Depei Han, and Conflict of Laws authored by Shuangyuan Li towards the end on 1987. In the past few years, monographs on private international law, majorly having dissertations and boosted by research outcomes of various government-promoted projects, have been steadily surfacing in large amounts, thereby adding value and necessitating the growth of relevant theoretical learning of private international law21. Since the first translation centering on the works of private international law of the former USSR, to increased translation of works of private international law of the UK and US, relevant translation is increasingly becoming diversified. At the same time, several works focus on adopting foreign theories of private international law, like the Study on Theories of Modern American Private International Law by Xianghu Zhang at its first phase. It gives an introduction of the American Theories of the mid-20th century to the Chinese nation. In recent past, the country’s private international community has made great strides in having an insight of the progress of foreign private international law. It has also undertaken comprehensive study on the new theories and schools of thought, together with the specific laws and judicature structures of private international law in several states and regions. This includes the European Union, US, UK, Switzerland, Netherlands, Australia, South Korea, South Africa and Japan22. In the past three decades, the nation’s intensive researches on private international law have synchronously progressed. Relevant successes have slowly aroused the attention of the international arena. To begin with, some pedants’ works have been published internationally. For instance, Donggen Xu’s doctoral works titled Latest Trends of Today’s Law of Application for Infringement Behavior in Private International Law and China’s Solution is, as informed by the writer’s records, the first monograph published internationally since the formation of new China. Secondly, following the crafting of the Model Law of Private International Law by the China Society of Private International Law and subsequently published by Law Press China in both English and Chinese Languages, it has become so popular23. Thirdly, several research institutes in China have been hosting global conferences. Finally, many Chinese private international legal experts have taken advantage of the opportunities which present themselves to take part in international conferences or other forms of exchange programs and introduce the practices and theories of the nation’s private international law. Moreover, they have published quite a good number of private international law documents in international journals and periodicals, having captured some global attention. In dealing with international affairs, many Chinese scholars in private international law have taken part in the crafting of appropriate legal papers of international institutions and firms, and Hague Private International Law Conference is a case in point24. Experts of private international law have comprehensively merged theory with practice, involved themselves in public service and addressed consultative requests of China’s administrative, legislative and judicial bodies, offering consultative views. These consultative views represent the values of scholarly research as well. In March 2005, a time when the negotiation of Convention on Exclusive Choice of Court Agreements of Hague Private International Law Conference was at its peak, the Department of Treaty and Law under the Ministry of Foreign Affairs, and other stakeholders, summoned the top brass of Wuhan University to undertake an in-depth analysis of the matters that transpired in the convention. They were then required to develop specific and comprehensive recommendations. This further boosted the development of private international law in China25. Presently, the Chinese society of private international law has come up with a team mostly constituted by middle-aged and youthful researchers. They have featured in combined efforts of senior, middle-aged and young researchers, laying emphasis on training, empirical research, merging of theory and practice as well as a practical working style. Many people who pursued their studies overseas have come back to their country to train and conduct research activities. This has to a great extent boosted the academic force of private international law in China. In addition, some universities in China motivate scholars to study overseas and have a clear understanding of foreign experience and training modalities, by offering students exchange programs in an effort to realize gradual internalization of the scholarly studies of private international law26. After a long period of grueling tasks, the Chinese society of private international law has taught multitudes of hardworking high ranked talents humble working style, strong academic background and research capacity, and impeccable traits. Many talents have turned out to be the foundation of society owing to their substantial qualities and excellent capabilities. Graduate scholars trained by the Chinese society of private international law have been absorbed by international bodies, multinational corporations and foreign institutions of higher learning, and taken top seats. A substantial number of talents developed by the subject are working in several sections of Chinese legal and judicial sectors related to foreign elements27. At the commencement of the reform and opening up, Chinese private international law was still undergoing construction. The development of fundamental theories governing private international law became the heart of literature content during that time. Subsequently, more emphasis was put on searching into the specific topics. The basic theoretical themes are still a fundamental content of research attention of the Chinese community of private international law. Nowadays, the relevant theoretical framework is essentially advanced save for few discrepancies on certain topics28. The ruling objects of private international law are civil legal links which involve foreign entities. This standpoint began to be welcomed from 1950s. In 1983, Private International Law, a nationally unified book, stressed that the object of private international law is civil-foreign legal relationship. From a country’s standpoint, it can be referred to as civil legal relationship involving international parties29. Towards the end of 1982 and the beginning of 1983, a group of scholars came up with divergent points of view. The main dissimilarity focuses on whether the regulation object is the whole international civil relationship or a particular section of the international civil relationship30. The schools of thought that were brought forward included the views that: the regulation object of private international law is civil relationship involving international parties and what the law controls is the whole civil relationship associated with the foreign entities; and that private laws solely guide civil relationship relating to foreign parties that is specific or not outside some special range. Some international private lawyers assert that the discussions surrounding the theory of penalty as well as the theory of entirety is a new idea cropping up with the surfacing of constitutional bodies such as the international economic law, since these legal organs have laws that guide some civil and commercial relationship relating to foreign players31. Some legal bodies like the ones mentioned above, together with international law, are not mutually contradictory. Put simply, they are not eroding on the sphere of private international law. They are merely a culmination of the sophisticated and diversified international commercial and civil relationship. The argument on the characteristic of private international among Chinese legal minds majorly surrounds whether it is international or domestic law. To this date, there are five schools of thought, namely: private international law is not an international but domestic law; private international law is not domestic but international law; private international law is majorly domestic oriented but will progress towards becoming international law in years to come; private international law is not a departmental law but a system, and private international law is a legal organ or department between domestic civil law and public international law32. In spite of the many proposals of new names for private international law by academicians, its present name, ‘private international law’ has been welcomed by Chinese scholars. In terms of its scope, there are differing views globally among regional legal system, the British-American law system, as well as the former USSR and hot arguments in China concerning medium, large and small private international law. Today, the theory of one body of wings developed by Depei Han is broadly acknowledged. It postulates that private international law can be likened to an airplane whose connotation is the body of the plane, with its denotation being the plane’s wings33. With respect to private international law, the connotation is composed of the conflict law as well as even state legislations that are directly employed when handling matters relating to foreign and civil parties. One wing handles issues relating to citizenry or legal status of the foreigners while the other wing, which is the foundation of tackling civil relationship with foreign parties. The second wing on the other hand is the international civil litigation and arbitration process for conflict resolution in the event of disputes, inclusive of mandates, judicial aid and the acknowledgement and putting into force the foreign judgments and arbitration awards34. Drawn from Han’s theory of one body of two wings, the Chinese community of private international law has came up with a theoretical structure of private international law bearing Chinese features. This move has realized harmony in method and object of private international law, regulation of scope, and created unified points of view to some degree in the role and value orientation of private international law. Nonetheless, China’s theoretical framework of private international law has numerous Chinese features, making it distinct from the ones for the British-American legal structure as well as the former USSR as well as the Continental law system. In the lengthy history of legal advancements, the legislation of China’s private international law has had a positive past. In the 7th century, the provisions concerning illegalities committed by foreigners contained in the Chapter of General Provisions of the Law of Yong Hui in the Tang Dynasty can be ranked as world class at the time of its enactment. In that regard, China is one of the first states in the world to possess application rules for cases relating to foreign parties. This famous stipulation was passed on to Song and Ming dynasties, from where the legal school of thought of total territoriality was adopted35. Essentially, the Qing dynasty was guided by the previous system, and towards its end, there was no remarkable progress in the field of private international law. As years passed, the question of how the concept of private international law was introduced in China at the conclusion of the Qing dynasty is still a mystery, owing to the absence of historical records. Some scholars have in recent past undertaken an in-depth research into this mystery and are slowly trying to put together the bits and pieces of whatever artifacts they have in their possession to give a satisfactory answer36. Available show that the dissemination of contemporary private international law in China began in 1864. During this time, P. Martin, an American working at the Capital Tongwen College, translated the public law and private law of Wanguo Gongfa. In 1898, the Commentaries on International Law would be partially translated into the English language by John Fryer, an Englishman who worked in the Compilation and Translation area of Jiangman Manufacture Bureau. This became the first pamphlet on private international law in China. From 1903 till 1913, there were 16 documented books on private international law compiled and later translated by a group of people commissioned by Shotung Li and Bin Guo37. It can be deduced that China’s education of private international law began from the British and American English books, from where textbooks shipped from Japan were introduced. Regulation on Law Application publicized by the Northern Warlords Government in the year 1918 highly necessitated the development of the country’s private international law. During that time, law faculties in several universities offered the course increasingly. The number of students traveling overseas to pursue private international law shot up. For instance, scholars like Depei Han, Jun Lu and Yichen Ruan, pursued their studies in private international law overseas in developed universities38. Since 1978, owing to the urge for commercial and civil intercourse involving foreign players, legislation of private international law has been attracting more focus. At the formulation stages, of the General Principles of Civil Law in 1986, many private international legal scholars forwarded many proposals regarding the drafting of Chapter 8 of the General Principles of Civil Law. Upon the promulgation of the General Principles of Civil Law, numerous academic works and documents have been published, and the research zeal of scholars has been on the increase. In recent years, a big proportion of China’s private international law has been focused on China’s legislation of the law. In the process, the tackling of issues pertaining to the law cannot be escaped39. The present content of the provisions of China’s current legislation on private international law handles a comparatively wide scope. These include; areas of domicile and nationality, prescription, property right, competence and capacity, infringements, negotiable instruments, contracts, marriage, maritime affairs, adoption guardianship succession, maintenance, agency, bankruptcy, intellectual property and regional law of the conflict of laws. Scholars assert that these legislations possess many features40. This includes multilevel and diversification of the source, together with the marrying of Chinese features with laws borrowed from international stipulations in the existing legislation of private international law41.Overall, Chinese private international law has moved by leaps and bounds. The last 20 years have seen astonishing increase in the rate and quality of legislation in China. However, the country still has a long way to go towards the realization of the duty of creating a modernized legal system. Indeed, China is at a crossroad. This is graphically enlightened by the legislative steps of private international law regarding family matters. To date, Chinese legislation of private international law in this perspective is far from excellence. What can be found are but fragments of dispute rules among several statutes, doctrines and regulations brought forward by the judiciary and observers in spite of the fact that choice-of-law challenges concerned are mushrooming in huge numbers in recent years42. References Cai, D., ‘The Development of Constitutionalism in the Transition of Chinese Society’ (2005) 19 (1) Columbia Journal of Asian Law 2 < http://www.ebscohost.com > Accessed 12 May 14, 2014 Guomin, L., and Jin, H., ‘New Developments in Chinese Private Internatonal Law’ in Peter Sardevic and Paul Volken (eds), Yearbook of Private International Law (Vol.1 European Law Publishers 1999) He, Q., ‘China’s Private International Law (1978-2008)’ (2009) 5(2) Front Law China 188 < http://www.ohiolink.edu > Accessed 13 May 2014 Hui, W., ‘A Review of China’s Private International Law During the 30-year period of Reform and Opening-up’ (2009) 002 ASLI Working Paper 1 http://www.law.nus.edu.sg/asli Accessed 13 May 14, 2014 Huo, Z., and Xiao, Y., ‘Family Issues in China’s Private International Law’ (2009) 4(4) Journal of Cambridge Studies 56 < http://www.ebscohost.com > Accessed 12 May 14, 2014 Lei, C., ‘The historical development of civil law tradition in China: a private law perspective’ (2010) 78 The Legal History Review 159 < http://www.ebscohost.com > Accessed 13 May 14, 2014 MinFei, H., and Kong, Q., ‘The Chinese Practice of Private International Law’ (2002) 3 Melbourne Journal of International Law 3 < http://www.ebscohost.com > Accessed 12 May 14, 2014 Zhu, W., ‘Codification of Private International Law: The Latest Development in China’ (2007) 48 (1) Codillus 11 < http://www.ebscohost.com > Accessed 12 May 14, 2014 Read More