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Law On The Application Of Relevant Laws To Civil Relationships With Foreign Parties

02.12.10 00:06 Age: 8 yrs
Law On The Application Of Relevant Laws To Civil Relationships With Foreign Parties

Chapter I General Principles

 

Article 1 This Law is enacted for the purpose of clarifying the application of law to foreign-related civil relationships, reasonably resolving foreign-related civil disputes as well as safeguarding the legitimate rights and interests of the interested parties.

 

Article 2 The laws applicable to foreign-related civil relationships shall be decided in accordance with this Law. If there are provisions otherwise provided by other laws with regard thereto, such laws shall be observed.

 

If this Law and other laws are all silent on the application of law regarding foreign-related civil relationships, the most closely-connected law with respect thereto shall be applicable.

 

Article 3 The interested parties may, in accordance with laws, explicitly select a law applicable to regulating foreign-related civil relationships.

 

Article 4 If the laws of People’s Republic of China (“PRC”) have obligatory provisions regarding foreign-related civil relationships, such obligatory provisions shall directly apply.

 

Article 5 If the application of a foreign-law will prejudice the public interests of PRC, the laws of PRC shall prevail.

 

Article 6 If a foreign law is to be applicable to resolving a foreign-related civil relationships, in the case that the laws of different regions of that nation differ from each other, then the laws of the region that are most closely-connected with the involved foreign-related civil relationshipss shall apply.

 

Article 7 Statute of limitation shall be observed in accordance with the law that shall be applicable to the foreign-related civil relationships in question.

 

Article 8 The nature of a foreign-related civil relationships shall be determined in accordance with the laws of the region where the trial court is located.

 

Article 9 When a foreign law is applicable to a foreign-related civil relationships, the law of application of law of that nation shall not be applicable.

 

Article 10 People’s Court, arbitration agency or administrative authority shall be responsible for identifying the foreign laws applicable to foreign-related civil relationshipss, and if the interested parties choose a foreign law as an applicable law, they shall provide provisions of such foreign law.

 

If such foreign law is not identified or if it has no provisions on foreign-related civil relationships, then the law of PRC shall apply.

 

Chapter II Civil Subject

 

Article 11 An individual’s capacity for civil rights shall be decided in accordance with the laws of the region where his/her habitual residence locates.

 

Article 12 An individual’s capacity for civil conduct shall be decided in accordance with the laws of the region where his/her habitual residence locates.

 

If as a result of an individual’s civil conduct, the individual is treated as a person without capacity for civil conduct according to the laws of the region where his/her habitual residence locates, but the individual is otherwise treated as a person who does have capacity for civil conduct according to the laws of the region where such civil conduct has occurred, then the laws of the latter shall govern, provided however, that this shall not apply where a civil conduct involves matters concerning marriage and family or heritage.

 

Article 13 The law of the region where an individual’s habitual residence locates shall apply in respect of the announcement of his/her disappearance or death.

 

Article 14A legal person and its branches’ capacity for civil rights, capacity for civil conduct, organizational structure and shareholder’s rights and obligations and so on shall be decided in accordance with the laws of the region where it is registered.

 

If its principal business address is different from its registration address, the laws of the region where its principal business place locates shall apply. For the purpose of this article, the habitual residence of a legal person shall be its principle business address.

 

Article 15 A person’s personality rights shall be defined in accordance with the law of the region where the person’s habitual residence locates.

 

Article 16 With respect to agency, the laws of the region where the authorized action actually take place shall apply, however, the civil relationships between a principal and its agent shall be dealt with in accordance with the law where the agency is established.

 

Interested parties may consult to select a law which will be applicable to their agency.

 

Article 17 Interested parties may consult to select a law which will be applicable to trust. If no such selection is made, the law of the region where the entrusted property is located or a trust relationshipsship has been established shall apply.

 

Article 18 Interested parties may consult to select a law which will be applicable to their arbitration agreement. If no such selection is made, the law of the region where the arbitration agency is located or where the arbitration is conducted shall apply.

 

Article 19 When, in accordance with this law, an applicable law is decided according to the nationality of the interested parties, in the case that a interested party has two or more nationalities, then the law of the nation (of which he/she is a national citizen)where his/her habitual residence locates shall apply; in the case that the interested party has no habitual residence in any of his/her nation of which he/she is a national citizen, then the law of the nation which is most closely-connected with him/her shall apply.

In the case that an individual has no nationality or his/her nationality is unidentifiable, then the law of the region where his/her habitual residence locates shall apply.

 

Article 20 When, in accordance with this Law, the law of the region where a interested party’s habitual residence is located shall be applicable, in the case that an individual’s habitual residence is unidentifiable, then the law of the region where his/her present residence locates shall apply.

 

Chapter III Marriage and Family

 

Article 21 With respect to marriage qualification, the law of the region where the interested parties have common habitual residence shall apply; if there is no such common habitual residence, the law of the nation of which they share common nationalities shall apply; in the case that the interested parties who share no common nationalities get married in the region where one of them has habitual residence or in a country of which one of them is a national citizen, then the law of either of the aforesaid region or of the country may apply as long as such law has legalized their marital relationshipsship.

 

Article 22 With respect to the procedures of legalizing a marital relationshipsship, as long as the procedures are in compliance with the laws of a region and/or country where the marital relationshipsship is legalized or where one of the interested parties has habitual residence or nationality, such procedures shall be deemed effective.

 

Article 23 With respect to personal relationshipsship involved in a marriage, the law of the region where the couple have common habitual residence shall apply; if they have no such common habitual residence, the law of the nation where they share common nationalities shall apply.

 

Article 24 With respect to property relationshipsship involved in a marriage, the interested parties may consult to choose the law of the region where one of them has habitual residence or of the nation of which one of them has nationality or of the region where their material properties locate as the applicable law. If no such choice is made, the law of the region where they have common habitual residence shall apply; in the case that they have no such common habitual residence, then the law of the nation of which they have common nationalities shall apply.

 

Article 25 With respect to personal and property relationshipsship between parents and children, the law of the region where they share common habitual residence shall apply; if they have no common habitual residence, then either the law of the region where one of the interested parties has habitual residence or that of the nation of which he/she has nationality shall apply, provided however, only the law that provides more protection to the rights and interests for social inferiors shall be decided as applicable when making a choice in this regard.

 

Article 26 With respect to consulted divorce, interested parties may agree to use the law of the region where one of them has habitual residence or of which he/she has nationality as the applicable law. If they make no choice, the law of the region where they have common habitual residence shall apply; if they have no common habitual residence, the law of the nation of which they share common nationalities shall apply; if neither do they have common nationalities, then the law of the region where a divorce service agency (which deals with their divorce procedure) locates shall apply.

 

Article 27 With respect to a divorce through prosecution, the law of the region where a trial court locates shall apply.

 

Article 28 With respect to the qualification and procedures for adoption, the law of the region where the adopted person and the adopting person have habitual residence shall apply. With respect to the validity of an adoption, the law of the region where the adopted person has habitual residence immediately before and at the adoption shall apply. With respect to the cancelation of an adoption relationshipsship, the law of the region where the adopted person has habitual residence immediately before and at the adoption or that of the region where a trial court locates shall apply.

 

Article 29 With respect to support for dependent children, either the law of the region where one of the interested parties has habitual residence or of the nation of which he/she has nationality or of the place where the main property of the interested parties locate shall apply, provided however that only the law that provides more protection to the dependent children shall be decided as applicable when making a choice in this regard.

 

Article 30 With respect to supervision, either the law of the region where one of the interested parties has common habitual residence or of the nation of which he/she has nationality shall be applicable, provided however, only the law that provides more protection to the rights and interests of the supervised person shall be decided as applicable when making a choice in this regard.

 

Chapter IV Inheritance

 

Article 31 With respect to legal heritage, the law of the region in which the decedent’s habitual residence (where he/she used to live immediately before and at his/her death) locates shall apply; however with respect to legal heritage of real property, the law of the region where the involved real property locate shall apply.

 

Article 32 As long as the form of a will is in compliance with the law of the region where the decedent made the will or that of the region where the decedent used to reside immediately before and at his/her death, or that of the country of which the decedent had nationality or that of the region where the will was made, such will shall be effective.

 

Article 33 With respect to the validity of a will, the law of the region where the decedent made the will or that of the region where the decedent used to reside immediately before and at his/her death, or that of the country of which the decedent had nationality shall apply.

 

Article 34 With respect to matters like the administration of heritage, the law of the region where the heritage locate shall apply.

 

Article 35 With respect to the title of heritage with no successor, the applicable law shall be that of the region where the heritage locates at the death of the decedent.

 

Chapter V Real Rights

 

Article 36 With respect to the real rights of real property, the law of the region where the real property locates shall apply.

 

Article 37 Interested parties may consult to select a law applicable to the real rights of personal property. If they made no choice, the applicable law shall be that of the region where the concerned personal property locates at the time the relevant legal facts occur.

 

Article 38 Interested parties may consult to select a law applicable to the change of real rights of personal property in the course of transportation. If they made no choice, the applicable law shall be that of the transportation destination.

 

Article 39 With respect to negotiable securities, the applicable law shall be that of the region where the rights of the negotiable securities are realized or shall be such laws as are most closely-connected with the negotiable securities.

 

Article 40 With respect to rights of pledge, the applicable law shall be that of the region where the pledge rights have been established.

 

Chapter VI Creditor’s Right

 

Article 41 Interested parties may consult to choose a law applicable to their contracts. If they made no choice, then the applicable law shall be that of the region where one of the interested parties’ habitual residences locates and which best regulate the performance obligation correspondent to the nature of the contract or that which is most closely-connected with the contracts.

 

Article 42 With respect to consumer contract, the applicable law shall be that of the region where relevant consumers’ habitual residence locate; in the case that consumers select the law of the region where commodities and services are provided as applicable law or if relevant business operators have no business activities in the habitual residence of relevant consumers, then the applicable law shall be that of the region where commodities and services are provided.

 

Article 43 With respect to employment contract, the applicable law shall be that of the region where relevant employees work; if the work place is unidentifiable, the applicable law shall be that of the region where the employer’s principal business locates. With respect to labour dispatch, the law of the region from where labours are dispatched may be applicable.

 

Article 44 With respect to infringement liabilities, the law of the region where infringing actions take place shall apply, provided however, that if the interested parties share common habitual residence, then the law of the region where such common habitual residence locates shall apply. Interested parties may, as a result of an infringement, consult to select an applicable law through agreement.

 

Article 45 With respect to product liability, the applicable law shall be that of the region where the habitual residence of the infringed party locates; in the case that the infringed party select to use as applicable, the law of the region where the principal business place of the infringing party locates or the infringing activities occurs, or if the infringing party does not conduct relevant business in the region where the infringed party’s habitual residence locates, then the applicable law shall be that of the region where the infringing party’s principal business place locates or that of the region where the infringing activities occurs.

 

Article 46 If there is infringement of such personal rights as rights of name, rights of portrait, rights of reputation, rights of privacy etc., the laws of the region where the infringed party’s habitual residence locates shall apply.

 

Article 47 With respect to undue enrichment or negotiorum gestio, the applicable law shall be that as selected by the interested parties. If the interested parties make no selection, then the law of the region where the interested parties’ share common habitual residence shall apply; if there is no such common habitual residence, then the law of the region where the undue enrichment or negotiorum gestio actually occurs shall apply.

 

Chapter VII Intellectual Property

 

Article 48 With respect to the title to and contents of an intellectual property right, the applicable law shall be that of the region where relevant rights are sought to be protected.

 

Article 49 With respect to the assignment of and license to use an intellectual property right, interested parties may consult to select an applicable law. If they make no such selection, then relevant provisions of this Law concerning contracts shall apply.

 

Article 50 With respect to the liabilities of infringement of an intellectual property right, the applicable law shall be that of the region where such rights are sought to be protected. Interested parties may, as a result of an infringement, consult to select as applicable the law where the trial court locates.

 

Chapter VIII Supplementary Provisions

 

Article 51 If there are conflicts between this Law and Article 146, Article 147 o General Principles of Civil Law of PRC and Article 36 of Succession Law of PRC, this Law shall prevail.

 

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

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