Please explain the doctrine of characteristic performance in private international law

Private international law mainly resolves the conflict of laws between different countries.

Private international law. Private international law (private international law) is a law that solves the law of which country should be applied to the relationship between civil law and commercial law with foreign-related elements. Because foreign-related factors are also known as international factors, civil law and commercial law are traditionally called private law in the West, hence the name of private international law.

Civil law in a broad sense can include commercial law, where civil law and commercial law differ from each other, and the legal term is called the conflict of civil law or conflict of civil law, or the conflict of laws or conflict of laws, so for a long time this sector law has been called conflict of laws or conflict of laws.

Name introduction. Private international law is a controversial legal department from the name, from the ancient Roman period of "the distinction of laws", to the present "private international law", "private international law", "the distinction of laws" and other titles, but with the development of the economy, especially the increasingly frequent international exchanges and cooperation, to promote the prosperity of private international law.

In 1834, the American jurist J. Storey coined the term "private international law" as a synonym for the law of legal conflict. Subsequently, the corresponding vocabulary was created in German and French, and then in Italian and Spanish. In China and Japan, it is called private international law.

Because private international law is the law on the application of the civil laws of various countries, it is also called the law of the application of law.

Section 1: Qualitative

1. The concept of qualitative and its legal significance.

1) Qualitative ConceptQualitative Characterization, also known as identification or classification, refers to the process of analyzing relevant facts or issues in accordance with a certain legal concept when applying conflicting norms, classifying them into a certain legal category, and explaining the scope and object of the relevant conflicting norms, so as to determine which conflicting norms apply which facts or issues. In the field of private international law, characterization is a kind of thinking activity before the judge applies the conflict norm, and it is the premise for the application of the conflict norm.

1) Classify and characterize the facts or issues of civil and commercial cases, and incorporate them into specific legal categories. This is because when applying conflict norms to foreign-related civil and commercial cases, it is first necessary to determine the nature of the foreign-related civil and commercial case and clarify what legal category it belongs to, for example, whether it is a contract issue or a tort issue, whether it is a movable property issue or a real estate issue, and so on. From the point of view of identifying this aspect, it is necessary to make an accurate choice of law in accordance with the relevant conflict norms.

2) the identification of the conflicting norms themselves. That is, the interpretation of the terminology used in the conflicting norm. It includes both the interpretation of "scope" and the interpretation of "nexus".

For example, when specifically applying conflicting norms such as "immovable property shall be subject to the law of the location of the immovable property" and "the law of the place of tort shall apply to damages in tort", it is necessary to interpret the legal concepts such as "immovable property" and "place of tort" in order to accurately find the applicable law applicable to the case.

2) The legal significance of qualitative.

In private international law, characterization is the premise of resolving which conflicting norms to invoke, and the difference in identification results will lead to the difference in the conflicting norms invoked, and the difference in conflicting norms will lead to a change in the applicable law, which will ultimately affect the substantive rights and obligations of the parties.

2. The identification of the basis of the qualitative basis is an important issue, and there are mainly the following different propositions in this regard: 1. the law of the forum; 2. Governing Law; 3. Analytical and Comparative Law; 4 case identification said.

In practice, the courts of a country mainly rely on international civil and commercial cases when handling international civil and commercial casesLaw of the forumIdentify relevant facts or issues and explain their own conflicting norms; On the other hand, due consideration should be given to identification on the basis of the law most closely related to the case in question, if necessary. If the nature of the property is movable or immovable, it should be determined according to the law of the location of the property, and the provisions of the law of the place of conduct should be duly taken into account as to whether an act constitutes a tort.

Article 8 of China's Law on the Application of Laws to Foreign-Related Civil Relations stipulates that: "The characterization of foreign-related civil relations shall applyLaw of the forum。It can be seen that China adopts the "lex fori forum identification theory", that is, the law of the forum is applied to determine the nature of the case.

In addition, Article 13 of the Judicial Interpretation (I) stipulates that "when a case involves two or more foreign-related civil relationships, the people's court shall separately determine the law to be applied." It can be seen that in China's judicial practice, the identification and division system is applied, that is, if the case involves two or more foreign-related civil relationships, the court should separately determine the applicable law.

The main problems of private international law are as follows:1.the application of the law in different countries or regions;

2.The recognition and enforcement of civil judgments and awards in the same country or region as soon as possible;

3.cross-border marriage, inheritance, property and other personal legal relationship issues;

4.cross-border commercial transactions, investment and other commercial legal relationship issues;

5.International civil litigation and arbitration and other civil dispute resolution issues.

Private international law is a legal discipline that studies the legal relations between different countries and regions, and mainly solves cross-national and cross-regional civil legal relations.

Q: How to understand the scope of private international law?

Proofreading Answer:The so-called scope of private international law refers to the scope or type of norms that should be included in private international law.

Private international law includes the following types of norms: (1) norms on the civil legal status of foreigners, that is, legal norms that stipulate the scope of civil rights and obligations of foreign natural and legal persons in the country. The validity of such norms is a prerequisite for the emergence of legal conflicts in foreign-related civil relations.

If the legislation of a country does not allow foreigners to enjoy certain aspects of civil rights, then there will be no foreign-related civil relations in that regard, let alone legal conflicts in foreign-related civil relations.

2) Conflict norms, i.e., the general term for various norms that specify which country's law should be applied as the applicable law when adjusting foreign-related civil relations. Today, the private international law of various countries is still based on conflict norms as the most basic and main component.

3) Unified substantive norms, also known as uniform private law norms, refers to the substantive norms that directly regulate foreign-related civil relations in international treaties and international commercial practices.

4) Procedural norms for international civil litigation and international commercial arbitration. The norms of international civil procedure are the norms that regulate the procedures specially applied by judicial organs when hearing foreign-related civil cases, and the norms of international commercial arbitration procedures are the norms that regulate the arbitration procedures of international commercial arbitration institutions.

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Legal analysis: Private international law is a general term for the conflict norms of international civil and commercial legal relations, the unification of substantive law norms, the norms of civil legal status of foreigners, and the norms of international civil procedure that arise in the process of international exchanges. It is involved in the "Marriage Registration Regulations", "Civil Procedure Law of the People's Republic of China" and other legal provisions.

Legal basis: Marriage Registration Regulations

Article 2 The organs for marriage registration between Chinese citizens and foreigners, mainland residents and residents of the Hong Kong Special Administrative Region (hereinafter referred to as Hong Kong residents), residents of the Macao Special Administrative Region (hereinafter referred to as Macao residents), residents of the Taiwan region (hereinafter referred to as Taiwan residents), and overseas Chinese shall be the civil affairs departments of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government, or the organs designated by the civil affairs departments of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government.

Article 4 Where a Chinese citizen marries a foreigner in Chinese mainland, or where a mainland resident marries a Hong Kong resident, Macao resident, Taiwan resident or overseas Chinese in Chinese mainland, both men and women shall jointly go to the marriage registration authority at the place where the mainland resident's permanent residence is located to complete marriage registration.

Civil Procedure Law of the People's Republic of China

Article 259:Applying the Principles of the Law of the Forum The provisions of this Part apply to foreign-related civil litigation conducted within the territory of the People's Republic of China. Where there are no provisions in this Part, apply other relevant provisions of this Law.

Article 260:Principle of Priority in the Application of International Treaties Where the provisions of an international treaty concluded or acceded to by the People's Republic of China have different provisions from this Law, the provisions of that international treaty shall apply, except for the provisions of the People's Republic of China that the People's Republic of China has declared reservations. Article 261: Diplomatic Privileges and Immunities Civil litigation brought against foreigners, foreign organizations, or international organizations enjoying diplomatic privileges and immunities shall be handled in accordance with the relevant laws of the People's Republic of China and the provisions of international treaties concluded or acceded to by the People's Republic of China.

Legal analysis: Applicable law is a concept unique to private international law, which refers to a specific substantive law that is invoked by conflict norms and used to specifically determine the rights and obligations of the parties to international civil and commercial legal relations. Features:

1. The governing law must be the law designated by the conflict of laws norms. 2. The applicable law is the substantive law that can specifically determine the rights and obligations of the parties. 3. The applicable law is generally determined based on the conflict norms and in combination with the specific circumstances of international civil and commercial cases.

Legal basis: Anti-Foreign Sanctions Law of the People's Republic of China Article 3 The People's Republic of China opposes hegemonism and power politics and opposes any country's interference in China's internal affairs under any pretext or in any way. Where a foreign country violates international law and basic norms governing international relations, uses various pretexts or in accordance with its own laws to contain or suppress China, adopts discriminatory restrictive measures against its citizens and organizations, or interferes in China's internal affairs, China has the right to take corresponding countermeasures.