国际私法(英文版)(第2版)课件汇总整本书电子教案全套课件完整版ppt最新教学教程最全课件

1、国际私法(英文版第2版)Private International Law (2nd Edition)ContentsPart One IntroductionChapter One Description of the SubjectChapter Two The Sources of Private International LawChapter Three Conflict RulesPart Two A Brief History of Private International LawChapter One The European Continental HistoryChapt

2、er Two The Anglo-American HistoryChapter Three The Chinese HistoryPart Three Subjects of Private International LawChapter One Natural PersonsChapter Two Legal PersonsChapter Three States and International OrganizationsPart Four International Civil JurisdictionChapter One Basic Theory of Jurisdiction

3、Chapter Two International Civil Jurisdiction in Chinese Peoples CourtsPart Five General Part of Conflicts LawChapter One CharacterizationChapter Two RenvoiChapter Three Proof of Foreign Law and Evasion of LawChapter Four Ordre Public ReservationPart Six Selected Areas of Conflict RulesChapter One Ca

4、pacitiesChapter Two ContractsChapter Three TortsChapter Four PropertyChapter Five Family IssuesChapter Six SuccessionPart Seven Recognition and Enforcement of Foreign Judgments and AwardsChapter One Recognition and Enforcement of Foreign JudgmentsChapter Two Recognition and Enforcement of Foreign Ar

5、bitral AwardsPart Eight The Latest Development of Private International Law Legislation in ChinaChapter One Legislative Background of the Conflicts Act of 2010Chapter Two Comments on the Important Issues of the Conflicts ActChapter Three A Commentary on the Judicial Interpretation (I)Part One Introd

6、uctionChapter OneDescription of the SubjectLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:State the definition of private international law from the perspective of comparative lawDefine “foreign element” in Chinese legal contextUnderstand the scope and

7、 nature of private international law from the perspective of comparative lawComprehend the reasons why Chinese scholarship uphold a broader scope of private international lawUnderstand the raisons dtre of private international lawKey Conceptions or Termsprivate international lawconflict of lawsforei

8、gn elementsovereigntyforum shoppingCase StudySee P3-P4.1. Name2. Scope 2.1 Common Law Approach 2.2 French Approach 2.3 German Approach 2.4 Chinese Approach3. Nature4. Definition: A Chinese Approach5. Justification for Private International Law 5.1 Justice and Reciprocation 5.2 Sovereign Justificatio

9、n 5.3 Economic Justification 5.4 Chinese DoctrineChapter TwoThe Sources of Private International LawLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:Define sources of lawUnderstand sources of private international law from the perspective of comparative

10、lawState sources of private international law in ChinaComprehend the status of different sources under Chinese legal structureKey Conceptions or Termssourcelegislationcase lawinternational conventioninternational practiceCase StudySee P27-P281. Introduction2. Domestic Sources 2.1 Domestic Legislatio

11、n 2.2 Case Law 2.3 Academic Doctrines 3. International Sources3.1 International Convention3.2 International Custom and Practice4. Sources of Chinese Private International LawBasically, the sources of Chinese private international law can be divided into two parts:domestic sources and international s

12、ources.Chapter ThreeConflict RulesLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:State the definition and structure of conflict rulesDefine the connecting factorsDistinguish unilateral conflict rules from bilateral conflict rulesMemorize the most impor

13、tant connecting factorsKey Conceptions or Termslegal categoryattributionconnecting factorunilateralmultilateral1. Structure of Conflict Rules2. Connecting Factors3. Categories of Conflict Rules Part Two A Brief History of Private International LawChapter OneThe European Continental HistoryLearning O

14、bjectivesBy the end of this Chapter and the relevant readings, you should be able to:Understand the legal environment in Ancient Greece and Roman EmpireDefine “personal law period”Understand the basic arguments of the Italian, French, and Dutch School of Statute TheoriesComprehend the seat theoryUnd

15、erstand the underlying thread of the historic development of private international law in the European continentKey Conceptions or Termspersonal lawstatute theorycomityseat1. Antiquity2. Personal Law PeriodIt is generally accepted that this system of personal laws lasted from the 6th century to the

16、10th century.3. The Statute Theories 3.1 The Italian School 3.2 The French School 3.3 The Dutch School4. The German Contribution: Seat TheoryThe most influential writer after Huber was Friedrich Carl von Savigny (1779-1861).Savigny proposed to resolveconflicts problem by allocating legal relationshi

17、p to the territory to which it “belongs,” or in which it hasits “seat.” Chapter TwoThe Anglo-American HistoryLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:Understand the legal environment in England before the 16 th century and its impact on the devel

18、opment of conflicts lawDefine the Vested Rights DoctrineUnderstand the legal environment in the United States and its impact on the development of conflicts lawComprehend the major doctrines that appeared in the American Conflicts RevolutionEvaluate the influence of the American Conflicts Revolution

19、Key Conceptions or Termsvested rightsAmerican Conflicts Revolutionlocal lawgovernmental interest analysisCase StudySee P61-P62.1. The English History2. American History 2.1 Early Development 2.2 American Conflicts Revolution 2.2.1 CookLocal Law Theory 2.2.2 CaversPrinciples of Preference 2.2.3 B. Cu

20、rrieGovernmental Interest Analysis 2.2.4 F.K. JuengerMultistate Justice 2.2.5 The Restatement Second of the Conflict of Laws Chapter ThreeThe Chinese HistoryLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:Comprehend the articles related to private inter

21、national law in the Tang CodeUnderstand the legal environment and tradition in ancient Chinese society and their impact on the development of private international lawDefine “foreign consular jurisdiction”Understand the basic content of the Conflicts Act of 1918Comprehend the historic development of

22、 private international law during the first three decades after the establishment of the Peoples Republic of ChinaEvaluate the development of private international law after the 1980s in mainland ChinaKey Conceptions or TermsTang Codeforeign consular jurisdictionopen and reformlegislation1. Introduc

23、tion2. Early History3. History after the Founding of the Peoples Republic of ChinaPart Three Subjects of Private International LawChapter OneNatural PersonsLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:State the definition of nationality and its legal

24、 implications both in public international law and private international lawUnderstand the reasons for the conflict of nationalities and the approaches to solving such conflictDefine domicile and the different types of domicilesDistinguish domicile from habitual residenceKey Conceptions or Termsnati

25、onalitydomicileresidencehabitual residenceCase StudySee P87-P881. Introduction2. Nationality 2.1 Definition and Conflict of Nationalities 2.2 Solutions to Conflict of Nationalities 2.3 Chinese Law3. Domicile and Habitual Residence 3.1 Definition of Domicile and Conflict of Domiciles 3.2 Solutions to

26、 Conflict of Domiciles 3.3 Habitual Residence 3.4 Chinese LawChapter TwoLegal PersonsLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:State the definition of legal persons and their role in international economic exchangesUnderstand the major approaches

27、to determining the nationality of a legal person and their respective advantages and disadvantagesDefine multinational corporationsComprehend the principle to determine the nationality of a multinational corporationUnderstand the major approaches to determining the domicile of a legal person and the

28、ir respective advantages and disadvantagesState the means to recognize a foreign legal personKey Conceptions or Termslegal personthe theory of controlplace of establishmentmultinational corporationrecognitionCase StudySee P103-P1041. Introduction2. Nationality 2.1 Determination of the Nationality of

29、 a Legal Person 2.2 Nationality of Multinational Corporations 3. Domicile4. Recognition of Foreign Legal PersonsBasically speaking, there are two means to recognize foreign legal persons.The first means is the recognition via international legislation.The second means is the recognition via national

30、 legislation.Chapter ThreeStates and International OrganizationsLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:Understand the characteristics of states as the subjects of private international lawState the major doctrines of the immunities of states an

31、d their propertyComprehend Chinas position and practice on the immunities of states and their propertyDefine international organizations in this chapterUnderstand the applicable law of international organizationsKey Conceptions or Termssovereigntyimmunityabsolute doctrinerestrictive doctrineinternat

32、ional organizationsCase StudySee P115-P1161. Characteristics of States as the Subject2. Immunities of States and Their Property 2.1 The Evolution of the Doctrine 2.2 Chinas Position and Practice 3. International Organizations 3.1 Characteristics of International Organizations as the Subjects of Priv

33、ate International Law 3.2 Privileges and Immunities 3.3 Applicable LawPart Four International Civil JurisdictionChapter OneBasic Theory of JurisdictionLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:Define the meaning of jurisdiction in the context of p

34、rivate international lawState the categories of jurisdictions from the perspective of comparative lawUnderstand the reasons why conflict of jurisdictions is inevitableComprehend the approaches to solving conflict of jurisdictions both at international level and domestic levelKey Conceptions or Terms

35、jurisdictionterritorial jurisdictionpersonal jurisdictionin presonam jurisdictionin rem jurisdictionCase StudySee P137-P1381. Definition of Jurisdiction in the Context of Private International Law2. Categories of Jurisdictions 2.1 Territorial Jurisdiction vs. Personal Jurisdiction 2.2 In Personam Ju

36、risdiction vs. In Rem Jurisdiction 2.3 Exclusive Jurisdiction vs. Non-exclusive Jurisdiction 2.4 Statutory Jurisdiction vs. Jurisdiction by Agreement3. Conflict of Jurisdictions 3.1 Reasons for Conflict 3.2 Solutions to Conflict Chapter TwoInternational Civil Jurisdiction in Chinese Peoples CourtsLe

37、arning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:Understand the structure of Chinese Peoples CourtsDefine the different categories of jurisdiction exercised by Chinese Peoples CourtsSummarize the judicial practice of Chinese Peoples Courts when dealing wit

38、h jurisdictional issues in private international law casesUnderstand the problems that exist in current Chinese legislation and judicial practiceKey Conceptions or Termstier jurisdictionterritorial jurisdictiontransferred jurisdictiondesignated jurisdictionspecial jurisdictionconstrued jurisdictione

39、xclusive jurisdictionlis alibi pendensCase StudySee P149-P1541. Overview2. Jurisdiction of Chinese Peoples Courts in International Civil Litigation 2.1 General Territorial JurisdictionDefendants Domicile 2.2 Special Jurisdiction 2.2.1 Jurisdiction of the Peoples Court of the Place Where the Plaintif

40、f is Domiciled 2.2.2 Jurisdiction over Actions Concerning Contractual Disputes or Other Disputes over Property Rights and Interests 2.2.3 Jurisdiction over Actions in Torts 2.3 Consensual JurisdictionParties Choice or Consent 2.4 Construed Jurisdiction 2.5 Exclusive Jurisdiction 2.6 Lis Alibi Penden

41、sPart Five General Part of Conflicts LawChapter OneCharacterizationLearning Objectives By the end of this Chapter and the relevant readings, you should be able to:Define characterization in the context of private international lawState the reasons for the conflict of characterizationsUnderstand the

42、major approaches to determining the applicable law for characterizationSummarize the relevant Chinese legislation, judicial practice and scholarshipKey Conceptions or Termscharacterizationlex forilex causaeenlightened lex foriCase StudySee P179-P1801. The Need for Characterization2. Conflict of Char

43、acterizations3. Application of Law for Characterization4. A Chinese Approach: Comments and SuggestionsChapter TwoRenvoiLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:Define renvoiUnderstand the major categories of renvoiState the arguments for and agai

44、nst renvoiSummarize the relevant Chinese legislation, judicial practice and scholarship on renvoiKey Conceptions or Termsrenvoiremissiontransmissionsingle renvoidouble renvoiCase StudySee P1931. Definition2. Debate on Renvoi3. Chinese Legislation and Judicial PracticeChapter ThreeProof of Foreign La

45、w and Evasion of LawLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:State the importance of proving foreign law in international civil litigationUnderstand the relevant provisions contained in Chinese law on proving foreign lawDefine evasion of law in t

46、he context of private international lawComprehend the attitude of Chinese law towards evasion of lawKey Conceptions or Termsforeign lawfactlawnaturemethodproveevasion of lawCase StudySee P2011. Need for the Proof of Foreign Law2. Proof of Foreign Law in Chinese Peoples Courts 2.1 Fact or Law? 2.2 Me

47、thods of Proof 2.3 Failure to Prove Foreign Law 2.4 Mistakes in the Application of Foreign Law 2.5 Proof of Foreign Law under the Conflicts Act of 20103. Evasion of LawChapter FourOrdre Public ReservationLearning Objectives By the end of this Chapter and the relevant readings, you should be able to:

48、Understand the concept of ordre public (public order)Summarize the role of public order in private international lawState the legislative development of the doctrine of ordre public in China Comment on the typical cases in which the doctrine is invoked by the Peoples Courts of ChinaSummarize Chinese

49、 Scholarship on ordre publicKey Conceptions or Termsordre publicpublic orderthe exclusion of foreign lawlex foriCase StudySee P215-P2161. Introduction2. Legislative Development of the Doctrine of Ordre Public in China 2.1 The Earliest Legislation Invoking the Doctrine of Ordre Public 2.2 The Doctrin

50、es Reflection in Chinas Civil Procedure Law 2.3 The Doctrines Reflection in Chinas Contract Law 2.4 The Doctrines Reflection in General Principles of the Civil Law 2.5 The Doctrines Reflection in the New Conflicts Act of 20103. Cases in which the Doctrine is Invoked by the Peoples Courts of China 3.

51、1 Refusal of a Request for Recognition and Assistance in Enforcing the Agreement of Legal Separation 3.2 Disregard of International Custom and Usage 3.3 Refusal of Assistance in Serving Judicial Documents 3.4 Refusal of Assistance in the Taking of Evidence 3.5 Disregard of Arbitral Award 3.6 Refusal

52、 of a Request for Service of Process4. Chinese Scholarship on Ordre Public5. Concluding RemarksA foreign law that is applicable pursuant to the conflict rules of China is disregarded if its application would manifestly violate the ordre public of China. In its stead, courts should apply the relevant

53、 Chinese law or the law of whichever forum that has the most significant relationship with either the litigants or the cause of action.Part Six Selected Areas of Conflict RulesChapter OneCapacitiesLearning Objectives By the end of this Chapter and the relevant readings, you should be able to:Underst

54、and the concept of civil rights capacity and civil conduct capacity of natural personsSummarize the situations where conflict of civil rights capacities of natural persons ariseState the prevalent approach to solving conflict of civil conduct capacities of natural personsComment on the relevant arti

55、cles contained in the Conflict Act of 2010Summarize the basic approaches to solving conflict of capacities of legal personsKey Conceptions or Termscivil rights capacitycivil conduct capacitypersonal lawlex situslex foriCase StudySee P245-P2461. Natural Persons 1.1 Civil Rights Capacity 1.1.1 The Unb

56、orn Child 1.1.2 The Beginning of Civil Rights Capacity 1.1.3 The End of Civil Rights Capacity 1.2 Civil Conduct Capacity 1.2.1 Personal Law as a Principle 1.2.2 Exceptions to Personal Law 1.2.3 Conflict Rules under Chinese Law 2. Legal PersonsThe laws of different countries are different as to the c

57、apacities of legal persons.In principle, the capacities of a legal person are determined by its personal law, i.e., by either the law of its nationality or of its domicile. Chapter TwoContractsLearning ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:Comprehend p

58、arty autonomyDefine the doctrine of most significant relationshipUnderstand the test of characteristic performanceSummarize the Chinese private international law legislation on contractsKey Conceptions or Termscontractparty autonomymost significant relationshipcharacteristic performanceCase StudySee

59、 P2591. Overview2. Party Autonomy 2.1 Scope of Party Autonomy 2.2 Means of Party Autonomy 2.3 The Timing of the Parties Choice of Law 2.4 Restrictions on Party Autonomy3. Applicable Law in the Absence of Choice 3.1 Most Significant Relationship 3.2 Characteristic Performance Chapter ThreeTortsLearni

60、ng ObjectivesBy the end of this Chapter and the relevant readings, you should be able to:Understand the increasing complexity of torts in private international lawState the choice-of-law rules in torts contained in various Chinese statutes prior to the Conflicts Act of 2010Comment on the relevant ar