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Xiao Yongping: Advancing the Legislative Perfection of China's Private International Law
发布者:发布时间:2018-10-18 19:19阅读:78

On February 28th, Xiao Yongping spent his 50th birthday in a busy preparation lesson.

 

From 1988, he entered Wuhan University to study for a master's degree in International Law. Nowadays, as the dean of Wuhan University Law School and the director of Wuhan University Institute of International Law, Xiao Yongping has devoted half of his life to the research and teaching of Private International Law in China.

 

On March 21st, at the Law School of Wuhan University, the journalist of the Democratic and Legal Society conducted an exclusive interview with Xiao Yongping on the legislative issues of Private International Law.

 

The Collision and Blending of the Legal mind of the East and the West

 

Since he began teaching in 1993, Xiao Yongping has visited Harvard University in the United States, the Institute of Foreign Private Law and International Private Law in Hamburg, Germany, Temple University in the United States, Birmingham University in the United Kingdom and Groningen University in the Netherlands. The experience of multi-country visits has had a significant and far-reaching impact on his teaching and research of international law.

 

Before the first overseas visit, Xiao Yongping had been teaching at Wuhan University Law School for five years. It not only comprehensively and systematically consolidates his knowledge system in International Law, but also gives him a certain practical understanding of the domestic legal education model.

 

After returning from the visit, Xiao Yongping began to carefully sum up experience and compare the gaps from the perspective of teachers. He further understood the gap between China and developed countries in the field of legal education and Private International Law.

 

He said: "Compared with domestic legal education, foreign law courses pay more attention to the cultivation of students' legal thinking. Although the United Kingdom, the United States and Germany differ in the concept and methods of university education, they are more emphasis on the level of student participation in learning and the cultivation of the rule of law than Chinese legal education."

 

The legal education model represented by the United States is more inclined to the discussion-based teaching method in the classroom. The teacher leads the students to conduct divergent discussion and debate on specific key issues to complete the learning plan. If without enough preparation, students can hardly keep up with the teacher's rhythm in the classroom in such a teaching mode.

 

Compared with the United States, the legal education model in the United Kingdom will have more content taught by teachers in the classroom, but the teacher will also set aside nearly half of the time for students to ask questions and discuss. Class discussion is one of the effective means to cultivate students' legal thinking and legal awareness. In contrast, China's legal education does not seem to pay much attention to the assessment of the student's legal mind.

Xiao Yongping has published many English International Law papers in international core journals. He has mastered some experiences through the analysis of foreign paper research methods and writing formats.

 

"The writing habits of Chinese researchers are from abstraction to concrete, from macroscopic to microscopic in the way of argumentation. The logic and thinking habits of international mainstream papers such as Britain and the United States are just the opposite. They are accustomed to use cases to summarize, from the classical case to obtain empirical research material, thus deriving the regular conclusions." Xiao Yongping said.

 

Different ways of logical thinking hinder the internationalization of the Chinese legal papers.

 

He said that some papers with a high level in Chinese writing, if translated directly into English, would appear entirely different, and foreign scholars could not understand the logic. If you translate a Chinese paper into English, or directly create an English paper, it involves a lot of changes in the structure of the article, the habits of thinking, and the data cited. However, his years of practice have provided him with a wealth of experience in teaching and research.

 

Now, as the dean of the Law School, Xiao Yongping is passing on these experiences to his students without reservation. He hopes excellent domestic legal research results will go to the world.

 

The gap between ideal and reality

 

The Law of the People's Republic of China on the Application of Foreign-related Civil Relations Law (hereinafter referred to as the Law of Application of Law), which was implemented in April 2011, is the first systematic legislative framework to construct the law of the application of law in China, and the first one to clarify the application of law on foreign-related issues and fairly settle down foreign-related civil disputes.

 

It is demonstrated that the Law of Application of Law was included in the ninth draft of the Civil Law Draft after the National People's Congress first submitted the draft in 2002. Through years of legislative discussions, the law was finally divided into eight chapters, fifty-two provisions in total.

 

Xiao Yongping has participated in the National People's Congress to formulate the Law of Application of Law many times. He told the journalist of Democracy and Legal Society that the current Law of Application of Law is not perfect for a large number of scholars’ opinions have not been adopted.

 

He said that the so-called civil relations in Private International Law must contain commercial relations, and these relations are more important in practice. However, in the current Law of Application of Law, the provisions on the application of commercial relations laws are still absent.

 

Foreign-related civil and commercial legal relations involve many departmental laws and regulations. The China Society of Private International Law has also organized many seminars and made relatively full argumentation and explanations.

 

Most experts, including Xiao Yongping, agree that because China's rules on the application of law are relatively scattered, distributing in the General Principles of Civil Law, the Contract Law, the Maritime Code, the Bills Act, the Civil Aviation Law, and some judicial interpretations of the Supreme People's Court. There are many repetitions, inconsistencies, and even contradictions in the legal application norms. There are still many incomplete, leaving a lot of legislative gaps.

 

Therefore, the legislation of systematic Private International Law is an inevitable requirement for improving China's foreign-related legal system and adapting to China's reforming and opening. According to common sense, the Law of Application of Law (2011) should include and cover all application of laws, and should explicitly abolish the provisions in other laws that are in conflict with the Law of Application of Law.

 

However, the current Law of Application of Law only deals with some civil and commercial legal relationships in the field of Private International Law, while other contents are distributed among other laws and regulations. This invisibly increases the difficulty of amending the Law of Application of Law, also illustrates there are some problems in the systemic and coordination of legislation.

 

"Among the current provisions of the Law of Application of Law, some are duplicated with the 11 provisions of part VIII of the General Principles of Civil Law." Xiao yongping has suggested that the National People's Congress should clearly stipulate in the Law of Application of Law that "the legal provisions which are duplicated, inconsistent or conflicting with this law are invalid", and specify the specific provisions that are invalid in the form of an annex.

 

However, since the Law of Applicable of Law was passed by the Standing Committee of the National People's Congress, the General Principles of the Civil Law was passed by the National People's Congress. The revision of the General Principles of the Civil Law has yet to be democratically voted on by the National People's Congress.

 

In accordance with the basic framework of the application of law of other countries in the world, besides the application of law, it should also include the determination of jurisdiction, the recognition and enforcement of foreign judgments and foreign arbitration, investigation and evidence collection, and judicial assistance.

 

"China's foreign-related civil jurisdiction issues are regulated in the Civil Procedure Law. After the latest revision, the legal provisions are less than before. The investigation, evidence collection and delivery of evidence abroad require mutual legal assistance from different countries, which requires clarification of the application of law. Therefore, Therefore, resources should be unified and coordinated to avoid waste, all existing private international laws and regulations, judicial interpretations should be systematically summarized and scientifically codified.

 

He believes: "The current Law Application Law only realizes part of the ideal of Chinese scholars, and there is still a certain gap from the mature Private International Law system. Therefore, China's private international law legislation and practice still have a long way to go”.

 

Chinese road to Private International Law

 

"There are still some limitations and drawbacks in the study of China's Private International Law. Some are derived from the inherent habit of the research of Chinese scholars, while others are derived from the institutional limitations of the state on the study of international law." Xiao Yongping said.

 

He found that there are not many interdisciplinary study of private international law in China.

 

As an application of law, Private International Law needs to be studied in combination with practice, which must cooperate with substantive law in various fields. However, Chinese researchers are accustomed to sticking to their own fields, and there are few studies and practices in interdisciplinary subject and fields.

 

At the same time, there are few theoretical generalizations of Chinese practice in Private International Law. Xiao Yongping said that China has a large number of rulings and lawsuits in the field of Private International Law every year. However, the court's disclosure of the materials involved is far from satisfying the needs of scholars.

 

"Even if the judges' documents are obtained, it does not reflect the judge's thinking process. This is a considerable loss for the study of Private International Law practice." Xiao Yongping is very sorry for the loss of these precious research information. "The judges who handle the case even have their own discretion and thinking, even if the case has been controversial in the collegiate bench, the scholar who gets the judgment documents cannot restore the discretion of the judge who handles the case at that time."

 

He hopes that in the process of hearing foreign-related civil and commercial cases, the court can allow the collegiate bench record the scale of the referee and the summary of the trial standards, and provide it to the legislative and judicial departments and scholars for research and use when necessary.

 

Xiao Yongping believed that the system of China's Private International Law legislation is not enough. It should not only set up the great power's judicial idea, strengthen the fair judicial system, innovate the harmonious judicial method, and carry forward the inclusive judicial culture, but also reflect the new needs after the change of China's international status, and safeguard China's national security and fundamental interests.

 

Xiao Yongping takes intellectual property protection as an example. As China's national strength grows day by day, national strategies such as "One Belt And One Road" take the technology developed by China's independent innovation out of the country. China has shifted from the traditional technology import country to the technology export country of neighboring and developing countries. If China's private international law still does not improve the level of protection of intellectual property rights, it will inevitably cause Chinese enterprises to lose their due rights protection in the activities of foreign economic relations and trade, and even lose their technological advantages.

 

"China's position in international civil and commercial relations is changing, but China's Private International Law legislation is still relatively stagnant, which is not conducive to protecting the core interests of our country. The legislation of Private International Law should be compatible with the country's international status and economic development level, and be adjusted in time according to China's national conditions." Xiao Yongping said.