Author(s):  
Chen Lei

AbstractWhile Chinese law occupies a sui generis position, namely, East Asian law, it is generally acknowledged that Chinese law comfortably wears the dress of civil law. The Chinese civil law tradition finds its historical roots in the late Qing Dynasty (1902–1911). Long before Alan Watson's magisterial book on the legal transplant, China experimented with importing foreign law. More to the point, the newly enacted Chinese Property Code, in effect for more than two years still has this feature. The new property code is an evolution rather than a revolution, since it is little more than an organic development of the existing law. Consequently, one would expect to find in the new legislation many traces of its past history. It is worth noting that any legal development is not a complete break with its past. Chinese law is no exception. A historical perspective exploring the origin of the traditions of civil law is both necessary and useful for it can shed light on the direction of the future development of Chinese private law.


2002 ◽  
Vol 30 (1) ◽  
pp. 1-52 ◽  
Author(s):  
Andrew Grossman

Foreign law, whether a subject of study in itself within the domain of comparative law, or invoked under a rule of conflict of laws to resolve a crossborder issue, is an essential library resource. In jurisdictions where foreign law must be pleaded and proved as a fact, it is up to the parties to demonstrate what that law is, in default of which the Anglo-American court will generally presume it to be the same as municipal law. In other, generally civil-law, jurisdictions it may be up the court to appoint an expert; foreign law may be treated either as law or as fact, depending upon the jurisdiction. Because family law, succession and donations are, in civil-law countries, largely ruled by personal law and because personal law may be determined by reference to facts of nationality, domicile, religion and ethnic identity, considerable academic sophistication is demanded of foreign and comparative law librarians. The escalating costs of legal materials and the difficulty of cataloguing and maintaining collections of rarely-used materials in hard languages pose additional obstacles. In the United States particularly, acquisition of foreign materials has perceptibly declined since the early 1980s. Only a handful of law libraries in the world possesses the financial, logistical, linguistic and technical wherewithal to aspire to collecting materials from all or most countries; for those, managing acquisition and selection is the main challenge. Collecting official gazettes, session laws and case reporters from many jurisdictions makes enormous demands upon space and record-keeping; microform collection is not in many cases an alternative. Where it is, it creates its own special demands.


2016 ◽  
Vol 16 (1) ◽  
pp. 127-142
Author(s):  
Michal Malacka

Summary The article deals with the systematical problem of an acceptance and impementation of foreign law instruments in EU, incoming from Anglo-American law system. Supporting partial methods of the ADR, European legislative is focusing on the mediation and using this method in civil procedure law, especially in family law matters. The practitioners have accepted the idea of mediation as a part of civil law procedure without analyzing or studying the real nature of this method or instrument. The study is looking into the problematics of the Multi-Door Courthouse model and comparing it with European situation in the member states. It is also trying to find the best possible future ways for the development in the area of mediation with the reflection of the results of the implementation of the European mediation directive.


2016 ◽  
Vol 4 (9) ◽  
pp. 0-0
Author(s):  
Евгений Четырус ◽  
Evgeniy Chetyrus

The article considers the concept of “indemnity” that is rather new to national civil law. The analogy of this concept that was borrowed from the foreign law system is reflected in the article 4061 of the Civil Code of the Russian Federation “Compensation of losses which occur due the circumstances stated in the contract”. In particular, the given Article of the Code establishes that the parties to the obligations acting jointly as members of the business activities may through their mutual agreement provide for the obligation of one party to compensate for material losses of the other party which were caused by the circumstances listed in the contract, but unrelated to violation of obligations by the party (losses caused by impossibility of fulfilment of obligations, submission of claims by third parties or bodies of state power against a party or third party which was indicated in the contract, etc.). The agreement between the parties shall determine the amount of losses to be compensated for as well as the procedure for such calculation and compensation. The author concludes that the notion “indemnity” and compensation of losses which are not associated with the violations of obligations, should not be confused since they are not identical legal factors.


2019 ◽  
Vol 11 (2) ◽  
pp. 616
Author(s):  
Laura García Gutiérrez

Resumen: En este recurso de casación, resuelto por el Tribunal Supremo español, se plantea la admisibilidad del reenvío en la sucesión de un nacional británico que afecta a la propiedad de un inmueble situado en España. El Tribunal hace hincapié en su doctrina limitando el juego del reenvío cuando éste conduzca a la fragmentación de la sucesión. Al hilo de esta idea, analiza el concepto de domicilio en Derecho inglés y la incidencia de la fundación de un Trust conforme al Derecho de Malta en la sucesión del causante.Palabras clave: ley aplicable a una sucesión mortis causa, libertad de testar, ley aplicable a la legítima, reenvío de retorno, Trust constituido conforme a un Derecho extranjero sobre bienes no situados en España.Abstract: In this cassation appeal, resolved by the Spanish Supreme Court, the admissibility of the renvoi in the succession of a British national that affects the ownership of a property located in Spain is considered. The Court emphasizes its doctrine limiting the role of renvoi when it leads to the fragmentation of the succession. In line with this idea, it analyzes the concept of domicile in English Law and the incidence of the foundation of a Trust according to the Law of Malta in the succession of the deceased.Keywords: law applicable to succession, Freedom to make a will, Law applicable to Spanish “legítima sucesoria”, Renvoi, Trust founded according to a Foreign Law on goods located abroad.


Upravlenie ◽  
10.12737/5640 ◽  
2014 ◽  
Vol 2 (3) ◽  
pp. 71-75
Author(s):  
Лик ◽  
Jan Lic

The problem of joint co-ownership in a Polish civil law partnership constitutes one of the most complex and contentious problems in Polish civil law. On one hand, there are many reasons why a civil law partnership should have legal capacity, capacity to be a party in civil cases, bankruptcy capacity and a status of an entrepreneur. On the other hand, the system of joint co-ownership precludes the partnership from being accorded that status. Recognising the legal capacity of a partnership would mean that it is a carrier of rights and obligations. This, however, would be defied by the system of joint co-ownership, since in that case it would be the partners, as coowners, that would be the carriers of rights and obligations. It is not possible that a partnership and its partners are both carriers of the same property rights; particularly, the right to the property of partnership. Even if the legislature de-cided that a civil law partnership is not just a civil law obligation, but also an organisa-tional unit and that the legal capacity should be accorded to it, then the system of joint co-ownership in a civil law partnership would also have to be waived. Numerous provi-sions of public law, including in particular tax law, suggest such a solution. They already treat a civil law partnership as a legal entity. Accordance of” as the act of granting civil law capacity would unify its status in all areas of law. Furthermore, there are cases from foreign law that speak for the above-presented solution. In France and Scotland a civil law partnership has legal personality. In Germany the equivalent partnership was granted legal capacity. In the latter country, this was possible without the need to resign from the system of community of joint co-ownership (Gesamthand). Contrary to the Polish joint co-ownership, the German Gesamthand is not a type of co-ownership, but a type of legal community of personal rather than property nature. In countries in which a civil law partnership has not been granted legal capacity, problems similar to those that occur in Polish law arise. The postulate of granting legal capacity to a civil law partnership is justified. However, it should be limited to partnerships that operate business activity. Ordinary external partnerships do not require legal capacity; therefore they can still retain the system of joint co-ownership.


Author(s):  
Torremans Paul

This chapter examines issues surrounding the exclusion, or non-enforcement, of foreign law. There are circumstances when the law of the forum must be preferred to the foreign law that would normally be applicable to the case. An outstanding example of this is the civil law doctrine of ordre public under which any domestic rule designed to protect the public welfare must prevail over an inconsistent foreign rule. This chapter discusses four cases in which foreign law will not be enforced, either directly or indirectly, by English courts: foreign revenue, penal and other public laws; foreign expropriatory legislation; foreign laws repugnant to English public policy; and the mandatory rules of the forum. It also describes the effect of European private international law on the rule against the enforcement of foreign revenue, penal and other public laws in England.


Author(s):  
Nishitani Yuko

This chapter discusses Japanese perspectives on the Hague Principles. Japan belongs to the civil law system, although some legal institutions grounded in common law also exist. At the end of the nineteenth century, Japan transplanted Western legal systems. Along with the codification of the Civil Code and other statutes, the Private International Law Act, Hôrei, was adopted in 1898, which was modernized and substituted by the Japanese Act on General Rules for Application of Laws (AGRAL) in 2006. The AGRAL designates, out of several conflicting laws, the law which has the closest connection with the legal relationship concerned. This value-neutral, multilateral method consists in localizing the legal relationship in a certain jurisdiction, grounded on the equality and interchangeability of domestic law and foreign law. While the judge does not have the authority to directly apply the Hague Principles instead of the AGRAL in litigation, the judge can certainly refer to the Hague Principles in seeking guidance for interpretation or filling gaps of the AGRAL, same as for other international, regional, or domestic conflicts rules, including the relevant Hague Conventions.


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