2001年中国国际私法司法实践
Chinese Judicial Practice in Private International Law:2001
黄进 杜焕芳
【摘要】Table of Contents
I. Introduction
II. Review of Some Judicial Interpretations of Private International Law
II.A. Judicial Interpretation of Jurisdiction
II.B. Judicial Interpretation of Application of Law
II.C. Judicial Interpretation of Judicial Assistance
II.D. Judicial Interpretation of Foreign Evidence
III. Statistics of Some Cases Involving Foreign Elements
Table 1: Statistics of Cases
Table 2: Legal Relationship
Table 3: Application of Law
Table 4: The Methods of Choice of Law
Table 5: Parties Involving Cases
IV. Analysis of Some Cases Involving Foreign Elements
IV.A. Jiangdu Dockyard v. Yangzhou Branch of Chinese Industry & Commercial Bank, etc.
IV.B. Hong Kong Ruinan Ltd. v. Shanxi New and Big Steel Co., Ltd.
IV.C. Jiangsu Light Industry Product Import & Export (Group) Co. Ltd. v. Jiangsu International Round-the-World Shipping Inc. and Brilliant International Corp. U.S.A
V. Conclusion
【全文】
Chinese Judicial Practice in Private International Law:2001
Huang Jin* and Du Huanfang**
I. Introduction
It is generally accepted that theory of private international law is usually connected with the practice of private international law. The historical development of private international law supports this view. The theory and practice of private international law really began in the twelfth century in Italy, as a by-product of the revival of Roman Law. Since then, problems of private international law in continental Europe have been rich. American problems of choice-of-law, including either interstate problems or international problems, are the most obvious because of the USA’s federalism. As to Chinese private international law , as a result of development in the relations of foreign economy and trade, there have been a great number of civil and commercial cases relating to foreign-related matters. Therefore, many problems are very pressing, such as judicial jurisdiction, application of the law and judicial assistance, etc., which need to be resolved step by step. On the other hand, there is a gap between the theory and the practice of private international law, which has become an obstacle to developing Chinese private international law. Judging from the above conditions, we can safely conclude that it is essential and useful to study the Chinese judicial practice of private international law. This can provide not only the basis for studying Chinese private international law, but can also help improve the Chinese judicial practice of private international law.
This article reviews and analyses private international law in Chinese judicial practice in 2001, and is divided into three parts to suit the above purposes. The first part examines some judicial interpretations of private international law issued by the Supreme People’s Court of the People’s Republic of China (PRC). The second part investigates some civil and commercial cases involving foreign elements. The last part discusses three typical cases about judicial jurisdiction and the application of law. A conclusion will follow at the end of the article to summarize the major points.
II. Review of Some Judicial Interpretations Issued by the Supreme People’s Court
“Judicial interpretation” is interpretation of the law made by the national supreme judicial organs, which explains the application of the law in accordance with authorization of law. In China, only the Supreme People’s Court has the power to issue such interpretation, and only the Supreme People’s Procuratorate has the power to issue interpretations regarding procuratorial practices. Sometimes the two organs jointly issue interpretations. But there is almost no connection between procuratorial matters and private international law, and as a result the interpretations issued by the Supreme People’s Procuratorate do not address problems of private international law. Therefore, judicial interpretations of private international law, if any, are principally those issued by the Supreme People’s Court. These include general judicial interpretations that are suitable for the whole country and concrete judicial interpretations applying to practical problems and individual cases. These judicial interpretations not only provide direction for all courts in Mainland China to deal with similar cases in the future but also carry forward Chinese legislation of private international law. In fact, judicial interpretation of the Supreme People’s Court has become one formal source of the internal law of Chinese private international law.
II.A. Judicial Interpretation of Jurisdiction
On January 26, 2001, the Supreme People’s Court issued the Interpretation of Certain Issues Relating to Application of Law of Civil Dispute Relating to Internet Domain Name [hereinafter referred to as Interpretation]. Article 2 of the Interpretation provides:
Tort cases relating to domain name come within the jurisdiction of the intermediate people’s court where the tortious action happened or the domicile of the defendant is located. If it is not easy to ascertain the place of tortious action and the domicile of the defendant, we may look at the place of final equipment of computer, where the plaintiff finds this domain name, as the place of tortious action. Judicial jurisdiction of disputes over the domain name involving foreign elements within the territory of the PRC shall be exercised in accordance with the fourth part of 1991 Civil Procedure Law.
Paragraph 1 of the above article provides the domain jurisdiction (court of the place of tortious action or the domicile of defendant) and the grade jurisdiction (intermediate people’s court). Paragraph 2 expands the interpretation for the place of tortious action, i.e. if it is not easy to ascertain the place of tortious action and the domicile of the defendant, we may look at the place of final equipment of computer, where the plaintiff found the domain name, as the place of tortious action. It is true that the above provisions will play an important role in ascertaining the place of tortious action and jurisdiction in disputes over torts of the domain name. However, except for many disputes over torts of the domain name, dispute over contracts and unfair competition of domain name may also happen in fact. So we think it is necessary to stipulate jurisdiction over all such disputes.
