国际私法识别法院地学说

1、 the International Private Law the lex fori theory of characterization By:Zeng xiaoyu123What is characterization?the details of lex fori theorythe new lex fori theoryWhat is characterization?In conflict laws, characterisation is the first stage in the procedure to resolve a lawsuit involving a forei

2、gn law element. This process is described in English law as classification and as qualification in French law. In those cases where a different result would be achieved depending on which of several possibly relevant laws is applied,this stage of the process reveals the relevant rule for the choice

3、of law but it is not necessarily a simple process The determination of the nature of the problem presented to the court for solution,as the first step in deciding what choice-of-law rule shall be selected to govern it.the content of the lex fori theoryKahn BartinKahn and Bartin,the first people who

4、found out the problem of characterization conflict,advocated the lex fori theory to settle this problem.this doctrine holds the view that characterization should follow the law of the forum.the content of the lex fori theory why?First,control:the supporters believe that the court will lose control t

5、o the national law in their country as long as they do the characterization according to the foreign law.Second,concept: It means that the conflict law is a part of the national legal system,and the concepts used by it should have the same meaning with the concepts used by other domestic laws.Thord,

6、familiar.Although there are not any foreign experts proving it,the process of characterization could be easy and clear for the judges are familiar with the domestic legal concepts.Forth,precondition.Since the characterization is the precondition of the conflict law,the foreign law have not been deci

7、ded to use before solved the characterization problem.As a result,it should be solved only by the law of the forum.evaluationadvantageTo be honest,it is a measure which has strong operability when the international cooperation of law,economy and culture is not so often.As a result,this doctrine was

8、adopted by so many coutries,like Egypt,Hungary and so on.The most famous case that applied this doctrine is Ogden v.Ogden of Britain in1908.The reason why this doctrine was so popular at that time,besides the strong operability,is that it could provide a protection to the legitimate interests of the

9、 parties according to the local law.We can think about this principle of characterizationthe conduct which happens out of the territory of the state will not be regarded as a tort conduct as long as the domestic law doesnt think it is a tort conduct.This principle have been used for a long time by n

10、ow.evaluationdisadvantageHowever,with the development of the law and the society,more and more people find out the shortage of this doctrine.The basis of this doctrine is that all the concepts of the conflict law are same with the concepts of other local laws.But,in fact,the characterization of the

11、foreign-related factor is different from the national one.In other word,the concepts of conflict law should be wider than local law.After all ,conflict law is not the law to provide the specific legal rules,but to guide us to find an appropriate law which could be applied .So we can not exclude the

12、consideration of the foreign concepts and only focus on the local law rules.the new lex fori theoryThe new one do not stress the same concept any more,and even not always approve the law of the forum.They think the concepts in the conflict law should be wider than the domestic law.And in order to in

13、sure the just result,it more depends on the analysis and comparison.Just like the comparative law,the judge should learn about the concept both in the domestic law and the foreign law firstly.And then they make a deep comparison.Finally,they will find out an appropriate one which is more just.dilemmaFirst, comparison.We can image it easily that if there is a foreign legal concept which is unknown by the judge completly,how does the judge t