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(Nov 05, 2010)
On October 28, 2010, the Standing Committee of China's National People's Congress (NPC) adopted the Law on the Application of Law in Foreign-Related Civil Cases (Zhonghua Renmin Gongheguo Shewai Minshi Guanxi Falü Shiyong Fa [in Chinese], NPC website (Oct. 28, 2010), http://www.npc.gov.cn/huiyi/cwh/1117/2010-10/28/content_1602779.htm.)
Effective from April 1, 2011, the Law regulates the application of law in a wide range of civil and commercial relationships, including marriage, inheritance, property, contracts, and intellectual property. Although many existing civil and commercial laws, regulations, and Supreme People's Court (SPC) judicial interpretations already contain conflict rules, the new Law is the first specific conflict law statute that the People's Republic of China has ever adopted.
A few conflict rules in the General Principles of Civil Law and the Inheritance Law will be superseded by this Law after it becomes effective. For example, article 147 of the General Principles of Civil Law provides that the marriage between a Chinese and a foreigner is bound by the law of the place where they get married, while a divorce will be bound by the law of the place where a court accepts the case. (General Principles of the Civil Law of the People's Republic of China [in English], SPC website, http://en.chinacourt.org/public/detail.php?id=2696 (last visited Nov. 3, 2010).) The new Law expanded this rule to a whole chapter on marriage and the family, which governs the application of laws to the conditions and procedures for getting married, personal status, property, divorce by agreement, divorce by litigation, and so on. (Law on the Application of Law in Foreign-Related Civil Cases arts. 21-30.)
Under the general rules of the Law, application of law in foreign-related civil relationships will follow this Law, or specific conflict rules of other laws; only when there are no such rules available will the most significant relationship principle be applied (id., art. 2). Chinese mandatory rules will be applied directly, if any (id. art. 4). In addition, when application of foreign law would be against the public interest of China (id. art. 5), or the applicable foreign law can not be ascertained, or no such rules are available in the applicable foreign law, Chinese law will be applied (id. art. 10).
One of the highlights of this Law is its use of habitual residence as the point of contact in most provisions, rather than nationality or domicile. The Law also emphasizes the protection of weaker parties in civil and commercial relationships, such as in the personal and property relationships between parents and children; if the parties do not have a common habitual residence, the law of the place of one party's habitual residence or nationality will be applied if it may better protect the weaker party's rights (id. art. 25).
|Author:||Laney Zhang More by this author|
|Topic:||Civil code More on this topic|
|Jurisdiction:||China More about this jurisdiction|
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Last updated: 11/05/2010