Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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China

Law on the Application of Laws to Civil Relationships Involving a Foreign Element of the People’s Republic of China1

Adopted at the 17th Session of the Standing Committee of the Eleventh National People’s Congress on 28 October 2010

Chapter I General Provisions

Article 1. This Law is enacted in order to clarify the application of laws to civil relationships involving a foreign element, to resolve disputes in civil matters involving a foreign element in an equitable manner, and to safeguard the lawful rights and interests of the parties.

Article 2. The law applicable to civil relationships involving a foreign element shall be determined in accordance with this Law. If other statutes contain special provisions on the application of laws to civil relationships involving a foreign element, then such provisions shall prevail.

If this Law and other statutes contain no provisions with regard to the application of laws to civil relationships involving a foreign element, then the law that has the closest connection with the civil relationship involving a foreign element applies.

Article 3. In accordance with statutory provisions, the parties may expressly choose the law applicable to a civil relationship involving a foreign element.

Article 4. If the law of the People’s Republic of China contains overriding mandatory rules on civil relationships involving a foreign element, then those overriding mandatory rules apply directly.

Article 5. If the application of a foreign law would cause harm to social and public interests of the People’s Republic of China, then the law of the People’s Republic of China applies.

Article 6. If a civil relationship involving a foreign element is to be governed by foreign law, and if different regions of the foreign country have different laws in force, then the law of the region with which the civil relationship involving a foreign element has the closest connection applies.

Article 7. Limitation of actions is governed by the law that is to govern the relevant civil relationship involving a foreign element.

Article 8. The characterization of any civil relationship involving a foreign element is governed by the lex fori.

Article 9. The law of a foreign country that is to govern a civil relationship involving a foreign element does not refer to the law on the application of laws of that country.

Article 10. The law of a foreign country that is to govern a civil relationship involving a foreign element shall be ascertained by the people’s courts, arbitration institutions or administrative organs. If the parties have chosen the law of a foreign country as applicable, they are to provide the law of that country.

If the law of a foreign country cannot be ascertained, or if the law of that country contains no relevant provisions, then the law of the People’s Republic of China applies.p. 3070

Chapter II Civil Subjects

Article 11. The civil legal capacity of a natural person is governed by the law of the place of his/her habitual residence.

Article 12. The capacity to engage in civil juristic acts of a natural person is governed by the law of the place of his/her habitual residence.

If a natural person is engaged in civil activities, and he/she has no capacity to engage in civil juristic acts according to the law of the place of his/her habitual residence, but he/she has the capacity to engage in civil juristic acts according to the lex loci actus, then the lex loci actus applies, except where marriage, family or succession is involved.

Article 13. Declaration of a missing person or declaration of death is governed by the law of the place of habitual residence of the natural person concerned.

Article 14. Matters such as the civil legal capacity, the capacity to engage in civil juristic acts, organizations and institutions of a legal person and its branches, as well as shareholders’ rights and duties, are governed by the law of the place of registration.

If the principal place of business of a legal person differs from the place of registration, then the law of the principal place of business may apply. The place of habitual residence of a legal person is its principal place of business.

Article 15. Contents of personality rights are governed by the law of the place of habitual residence of the right holder.

Article 16. Agency is governed by the lex loci actus of the act of agency, but civil relationships between the principal and the agent are governed by the law of the place where the agency relationship occurs.

The parties may choose by agreement the law applicable to an entrusted agency.

Article 17. The parties may choose by agreement the law applicable to a trust. In the absence of a choice by the parties, the law of the place where the trust property is located or the law of the place where the trust relationship occurs applies.

Article 18. The parties may choose by agreement the law applicable to an arbitration agreement. In the absence of a choice by the parties, the law of the place where the arbitration institution is located or the law of the place of arbitration applies.

Article 19. If the law of the country of nationality is to be applied according to this Law, and a natural person has two or more nationalities, then the law of the country of nationality in which he/she has a habitual residence applies; if he/she has no habitual residence in any country of nationality, then the law of the country of nationality with which he/she has the closest connection applies. If a natural person has no nationality, or if his/her nationality is unknown, then the law of the place of his/her habitual residence applies.

Article 20. If the law of the place of habitual residence is to be applied according to this Law, and the place of habitual residence of a natural person is unknown, then the law of the place of his/her current residence applies.

Chapter III Marriage and Family

Article 21. The conditions of marriage are governed by the law of the place of the parties’ common habitual residence; in the absence of a place of common habitual residence, the conditions of marriage are governed by the law of the country of the common nationality; if there exists no common nationality and the marriage is to be entered into at the place of habitual residence of one party or in his/her country of nationality, the conditions of marriage are governed by the lex loci celebrationis.

Article 22. The formalities of marriage are valid if they satisfy the lex loci celebrationis, the law of the place of habitual residence or the law of the country of nationality of one party.

Article 23. Personal relationships of spouses are governed by the law of the place of their common habitual residence; in the absence of a place of common habitual residence, the law of the country of their common nationality applies.

Article 24. With regard to property relationships of spouses, the parties may agree upon the law of the place of habitual residence or the law of the country of nationality of one party, or the law p. 3071of the place where the principal property is located, as applicable. In the absence of a choice by the parties, the law of the place of their common habitual residence applies; in the absence of a place of common habitual residence, the law of the country of their common nationality applies.

Article 25. Personal relationships and property relationships between parent and child are governed by the law of the place of their common habitual residence; in the absence of a place of common habitual residence, the law of the place of habitual residence or the law of the country of nationality of one party applies, provided that such law favours protection of the rights and interests of the weaker party.

Article 26. With regard to divorce by agreement, the parties may agree upon the law of the place of habitual residence or the law of the country of nationality of one party as applicable. In the absence of a choice by the parties, the law of the place of their common habitual residence applies; in the absence of a place of common habitual residence, the law of the country of their common nationality applies; in the absence of a common nationality, the law of the place where the institution conducting the divorce formalities is located applies.

Article 27. Divorce by litigation is governed by the lex fori.

Article 28. The conditions and formalities of adoption are governed by the law of the place of the adopter’s habitual residence and the law of the place of the adoptee’s habitual residence. The effects of adoption are governed by the law of the place of the adopter’s habitual residence at the time of adoption. The dissolution of an adoption relationship is governed by the law of the place of the adoptee’s habitual residence at the time of adoption or the lex fori.

Article 29. Maintenance is governed by the law of the place of habitual residence or the law of the country of nationality of one party, or by the law of the place where the principal property is located, provided that such law favours protection of the rights and interests of the person to be maintained.

Article 30. Guardianship is governed by the law of the place of habitual residence or the law of the country of nationality of one party, provided that such law favours protection of the rights and interests of the ward.

Chapter IV Succession

Article 31. Intestate succession is governed by the law of the place of habitual residence of the deceased upon his/her death, but intestate succession of immovable property is governed by the law of the place where the immovable property is located.

Article 32. A will is valid as to form if the form of the will satisfies the law of the place of habitual residence, the law of the country of nationality of the testator or the lex loci actus of the testamentary act at the time of making the will, or upon the death of the testator.

Article 33. The effects of a will are governed by the law of the place of habitual residence or the law of the country of nationality of the testator at the time of making the will, or upon the death of the testator.

Article 34. Matters such as the administration of estates are governed by the law of the place where the estates are located.

Article 35. The devolution of heirless estates is governed by the law of the place where the estates are located upon the death of the deceased.

Chapter V Rights in Rem

Article 36. Rights in rem over immovable property are governed by the law of the place where the immovable property is located.

Article 37. The parties may choose by agreement the law applicable to rights in rem over movable property. In the absence of a choice by the parties, the law of the place where the movable property is located at the time of the occurrence of the juristic fact concerned applies.

Article 38. The parties may choose by agreement the law applicable to any change of rights in rem over movable property that takes place during transport. In the absence of a choice by the parties, the law of the transport destination applies.

Article 39. Securities are governed by the law of the place where the rights of the securities are realized, or by any other law that has the closest connection with the securities.

p. 3072Article 40. The pledge of rights is governed by the law of the place where the pledge is established.

Chapter VI Obligations

Article 41. The parties may choose by agreement the law applicable to a contract. In the absence of a choice by the parties, the contract is governed by the law of the place of habitual residence of the party whose performance of obligations can be most characteristic of the contract, or by any other law that has the closest connection with the contract.

Article 42. A consumer contracts is governed by the law of the place of the consumer’s habitual residence; if the consumer has chosen the law of the place of the provision of commodities or services as applicable, or if the entrepreneur has not been engaged in relevant business activities at the place of the consumer’s habitual residence, then the law of the place of the provision of commodities or services applies.

Article 43. A labour contract is governed by the law of the place where the worker works; if the place where the worker works is difficult to ascertain, then the law of the principal place of business of the employing unit applies. Labour dispatch may be governed by the law of the dispatching place.

Article 44. Tortious liability is governed by the lex loci delicti, but it is governed by the law of the place of common habitual residence if the parties have a place of common habitual residence. If the parties agree to choose the applicable law after the occurrence of a tortious act, their agreement shall be followed.

Article 45. Product liability is governed by the law of the place of habitual residence of the person suffering the infringement; if the person suffering the infringement has chosen the law of the principal place of business of the infringing person or the lex loci damni as applicable, or if the infringing person has not been engaged in relevant business activities at the place of habitual residence of the person suffering the infringement, then the law of the principal place of business of the infringing person or the lex loci damni applies.

Article 46. If a personality right, such as right of name, right of portrait, right of reputation or right of privacy, has been infringed upon via the internet or by any other means, then the law of the place of habitual residence of the person suffering the infringement applies.

Article 47. Unjust enrichment or negotiorum gestio is governed by the law agreed upon as applicable by the parties. In the absence of a choice by the parties, the law of the place of the parties’ common habitual residence applies; in the absence of a place of common habitual residence, the law of the place of occurrence of the unjust enrichment or negotiorum gestio applies.

Chapter VII Intellectual Property Rights

Article 48. The devolution and contents of intellectual property rights are governed by the law of the place for which the protection is invoked.

Article 49. The parties may choose by agreement the law applicable to the transfer and licensed use of intellectual property rights. In the absence of a choice by the parties, the provisions of this Law relating to contracts applies.

Article 50. Tortious liability arising out of infringement of intellectual property rights is governed by the law of the place for which the protection is invoked; after occurrence of the tortious act, the parties may also agree upon the lex fori as applicable.

Chapter VIII Supplementary Provisions

Article 51. Where Articles 146 and 147 of the General Principles of Civil Law of the People’s Republic of China, and Article 36 of the Law of Succession of the People’s Republic of China, differ from the provisions of this Law, this Law shall prevail.

Article 52. This Law shall enter into force as of 1 April 2011.

Unofficial translation by Chen Weizuo, Doctor iuris (Universität des Saarlandes), Doctor of Laws (Wuhan University), LL.M. (Universität des Saarlandes), Professor and Director of the Research Centre for Private International Law and Comparative Law at Tsinghua University School of Law, Beijing, (China) and Kevin M. Moore, LL.M. (Peking University), Chief of Staff, Oregon Senator Floyd Prozanski, based on their translation printed in (2010) 12 YbPIL 669 ff. The editors wish to thank the translators, the editors of the Yearbook of Private International Law (YbPIL) as well as the Dr. Otto Schmidt Verlag and sellier european law publishers for the permission to reprint the translation.