FRONTIERS OF LAW IN CHINA ARTICLE. FAN Xiaoliang, * LI Qingming **

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1 FRONTIERS OF LAW IN CHINA VOL. 10 JUNE 2015 NO. 2 DOI /s ARTICLE COMPARATIVE STUDY ON SELECTED ASPECTS OF THE LATEST PRIVATE INTERNATIONAL LAW LEGISLATION ACROSS THE TAIWAN STRAITS FAN Xiaoliang, * LI Qingming ** The statute of private international law of Chinese mainland and Taiwan nearly updated at the same time. It is probably beneficial for the scholars across the Taiwan Straits to learn from each other s experiences. This article compares the similarities and differences on selected aspects between these two statutes, including the historical development of the legislation on private international law of Chinese mainland and Taiwan, amendments on the terms of nationality and habitual residence in the new statues, differences in the lex personalis, the application of the most significant relationship doctrine and characteristic performance approach, recast of the intellectual property rights terms, new categorization of contract and the protection of weak party, the dilemma of judicial discretion or private autonomy on the applicable law of tort, etc. Additionally, this article makes suggestions to improve the legislation and promote the civil and commercial communications between Taiwan and Chinese mainland. INTRODUCTION I. THE PATHS OF THE LEGISLATION ON PRIVATE INTERNATIONAL LAW A. The Amendment of Former Legislation in Taiwan B. The Path to a Separate Statute in Chinese mainland II. NATIONALITY AND HABITUAL RESIDENCE, DIFFERENCES IN THE LEX PERSONALIS A. Nationality and Domicile, the Choice of Certainty B. Habitual Residence: Trend of the Global Legislation III. THE APPLICATION OF THE MOST SIGNIFICANT RELATIONSHIP DOCTRINE IV. ANALYSIS ON THE TERMS RELATED TO THE INTELLECTUAL PROPERTY RIGHTS * ( 范晓亮 ) Ph.D in law and Lecturer, at School of Law, Anhui University, Hefei , China. Contact: xl.fan@foxmail.com ** ( 李庆明 ) Ph.D in law and Associate Professor, at Institute of International Law, Chinese Academy of Social Sciences, Beijing , China. Contact: lawyerlee83@126.com The authors are greatly indebted to Professor CHEN Rong-Chwan ( 陈荣传 ) National Taipei University for his comments in previous stage of this study and this paper is supported by the State Social Sciences Fund in the Project of study on the implementation of The Law of the Application of Law for Foreign-Related Civil Relations of the People s Republic of China in cross-border financial services contract disputes.

2 2015] THE LATEST PRIVATE INTERNATIONAL LAW LEGISLATION ACROSS THE TAIWAN STRAITS 317 A. Analysis on the Intellectual Property Rights Terms in the Law of the Application of Law The Ownership and Content of Intellectual Property Rights The Assignment and License of Intellectual Property Rights The Liabilities for the Infringement of Intellectual Property Rights B. Analysis on Article 42 in the Law Governing the Application of Law V. THE APPLICABLE LAW OF THE CONTRACTUAL DISPUTE: PROGRESS AND INSUFFICIENT A. Requirement of Expressed Intention in The Parties Autonomy B. Incorporated Application of the Most Significant Relationship Doctrine and Characteristic Performance C. Categorization of Contract and the Protection of Weaker Party VI. APPLICABLE LAW ON THE TORTS, JUDICIAL DISCRETION OR PRIVATE AUTONOMy A. Party s Autonomy in the Choice of Law on Torts B. The Most Significant Relationship Doctrine in the Choice of Law on Torts CONCLUSION INTRODUCTION The civil and commercial relationships between Taiwan and Chinese mainland had been improved rapidly and still developing with the time goes by. The number of disputes on marriage, succession, and investment keep growing. The private international law is required to apply on the investment, commercial, and family issues emerged with the closely relationship and interactions across the Taiwan Straits. According to the data released by the Supreme People s Court (SPC), there are 16,130 civil and commercial cases related to Taiwan had been settled by the people s courts in Chinese mainland from 2003 to 2007, 1 5,013 cases had been settled in 2008, 2 5,204 cases were settled in 2009, 3 4,653 cases were settled in 2010, 4 6,327 cases were settled in 2011, 5 and 8,626 cases 1 QI Xiaojing, 最高法院谈审理涉台案件 : 遵循一个中国原则 (Judicial Review of the Chinese Supreme People s Court on Cases Involving Taiwan: Upholding the Principle of One China), available at (last visited May 1, 2014) 年全国法院司法统计公报 (Chinese People s Court s Justice Statistics Bulletin in 2008), 3 中华人民共和国最高人民法院公报 (The Bulletin of the Supreme People s Court of the People s Republic of China), (2009) 年全国法院司法统计公报 (Chinese People s Court s Justice Statistics Bulletin in 2009), 4 中华人民共和国最高人民法院公报 (The Bulletin of the Supreme People s Court of the People s Republic of China), (2010) 年全国法院司法统计公报 (Chinese People s Court s Justice Statistics Bulletin in 2010), 4 中华人民共和国最高人民法院公报 (The Bulletin of the Supreme People s Court of the People s Republic of China), (2011) 年全国法院司法统计公报 (Chinese People s Court s Justice Statistics Bulletin in 2011), 4 中华人民共和国最高人民法院公报 (The Bulletin of the Supreme People s Court of the People s Republic of China), (2012).

3 318 FRONTIERS OF LAW IN CHINA [Vol. 10: 316 were settled in The amendment of the Law Governing the Application of Law in Civil Cases Involving Foreign Elements 7 (hereinafter the Law Governing the Application of Law ) was promulgated on May 26, 2010 and came into force on May 26, 2011 in Taiwan. This amendment was the reflection of efforts of Taiwan scholars on the improvement of the statute of private international law in Taiwan, the Law Governing the Application of Law which has already came into force half a century before. Different from Taiwan, Chinese mainland had never enforced a separate statute on private international law before The Law of the Application of Law for Foreign-Related Civil Relations of the People s Republic of China (hereinafter the Law of the Application of Law ), which was adopted and promulgated at the 17 th session of the Standing Committee of the 11 th National People s Congress on October 28, 2010, and came into force on April 1, This law is the first separate statute of private international law that has come into force in Chinese mainland. Moreover, the SPC released the Interpretations on the related Questions on the Application of Law of the Application of Law for Foreign-Related Civil Relations (I) (hereinafter the Interpretations on the Law of the Application of Law (I) ) 8 on January 7, 2013 as an important accessary, which clarified the definition and application of some terms provided in the Law of the Application of Law. For example, Article 1 of the Interpretations on the Law of the Application of Law (I) provides the circumstances of a civil relation that can be regarded as foreign-related, which had been omitted in the Law of the Application of Law. I. THE PATHS OF THE LEGISLATION ON PRIVATE INTERNATIONAL LAW A. The Amendment of Former Legislation in Taiwan The Law Governing the Application of Law has been generally regarded as the most important source of the private international law of Taiwan and had not been amended since It is long overdue for this statute to be thoroughly reviewed and examined in both theoretical and practical terms and criticized by Taiwan scholars on its general principals and the structure of the legislation. 9 The international legislative development 年全国法院司法统计公报 (Chinese People s Court s Justice Statistics Bulletin in 2012), 4 中华人民共和国最高人民法院公报 (The Bulletin of the Supreme People s Court of the People s Republic of China), (2013). 7 台湾涉外民事法律使用法 (The Law Governing the Application of Law in Civil Cases Involving Foreign Elements) was enacted in 最高人民法院关于适用 中华人民共和国涉外民事关系法律适用法 若干问题的解释 ( 一 )[Interpretations of the Supreme People s Court on Several Issues Concerning Application of the Law of the Application of Law for Foreign-Related Civil Relations of the People s Republic of China (I)]. 9 WANG Zhiwen, 涉外民事法律适用法之检讨与修正 (Discussion and Amendments on Law Governing the Application of Law), 31 华冈法粹 (Hwa Kang Law Review) 1, 4 5 (2004).

4 2015] THE LATEST PRIVATE INTERNATIONAL LAW LEGISLATION ACROSS THE TAIWAN STRAITS 319 towards modernizing private international law also demonstrates the urgent requirement to update such kind of statutes. Responding to the suggestions of amending the law, the judicial authority of Taiwan 10 established the Committee for the survey and amendment of the Law Governing the Application of Law (hereinafter the Committee ) in In the meantime, a group of scholars and experts were commissioned to amend the draft text, which has been submitted to the Committee for scrutiny. With the work of the Committee, the first draft of the amendment was published for public s suggestions in November, After the first draft had been published, some of the members of the Committee organized the international conference and invited many foreign and domestic scholars in the National Taipei University cooperated with the Taiwan Private International Law Society. Addressing the framework and guidelines of the amendment process and issues contained in the draft text, the afore-mentioned Committee has convened on 29 meetings. Those Committee meetings have proved to be considerably productive. There are 8 chapters in the amended Law Governing the Application of Law. 11 There are 31 articles in the original statute, 28 articles have been amended, and 1 article has been repealed. Furthermore, 33 articles had been added into the statute, totally 63 articles. The tremendous change in the amended Law Governing the Application of Law is the same as the establishment of a new statue. B. The Path to a Separate Statute in Chinese Mainland The importance of private international law has not been recognized in the long run in Chinese mainland after There are few rules provided and those provided lacked the judicial practice during that period. The prosaic history of private international law was ended in 1978, when the policy of reform and openness was adopted by Chinese mainland government. China abandoned the outdated policy of secluding herself from the outside world and participated in the international affairs positively. At the very start, the law of application of the law on foreign-related economic contract was provided in the Law of Foreign-related Economic Contract, which had been promulgated in The SPC released the Answer to related Questions on the Application of the Law of Foreign-related Economic Contract in 1987 to refine the application of law on foreign-related economic contract. The rules of the application of law are provided in Chapter VIII (Article 142 to Article 10 It refers to Judicial Yuan. 11 Including Chapter I General Principals (from Article 1 to Article 8), Chapter II Subject of Right (from Article 9 to Article 15), Chapter III Legal Behavior and Agent (from Article 16 to Article 19), Chapter IV Debt (from Article 20 to Article 37), Chapter V Real Right (from Article 38 to Article 44), Chapter VI Relatives (from Article 45 to Article 57), Chapter VII Inheritance (from Article 38 to Article 61), Chapter VIII (Supplementary Provisions).

5 320 FRONTIERS OF LAW IN CHINA [Vol. 10: in Application of law on Foreign-Related Civil Relations) 12 of the General Principles of the Civil Law (hereinafter the General Principles ). There are also specific rules available in scattered separate laws such as Article 36 of the Law of Succession of the People s Republic of China (hereinafter the Law of Succession ; 13 Rules for the Implementation of the Law of the People s Republic of China on Foreign-funded 12 Article 142 of the General Principles provides: The application of law in civil relations with foreigners shall be determined by the provisions in this Chapter. If any international treaty concluded or acceded to by the People s Republic of China contains provisions differing from those in the civil laws of the People s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People s Republic of China has announced reservations. International practice may be applied on matters for which neither the law of the People s Republic of China nor any international treaty concluded or acceded to by the People s Republic of China has any provisions. Article 143 of the General Principles provides: If a citizen of the People s Republic of China settles in a foreign country, the law of that country may be applicable as regards his capacity for civil conduct. Article 144 of the General Principles provides: The ownership of immovable property shall be bound by the law of the place where it is situated. Article 145 of the General Principles provides: The parties to a contract involving foreign interests may choose the law applicable to settlement of their contractual disputes, except as otherwise stipulated by law. If the parties to a contract involving foreign interests have not made a choice, the law of the country to which the contract is most closely connected shall be applied. Article 146 of the General Principles provides: The law of the place where an infringing act is committed shall apply in handling compensation claims for any damage caused by the act. If both parties are citizens of the same country or have established domicile in another country, the law of their own country or the country of domicile may be applied. An act committed outside the People s Republic of China shall not be treated as an infringing act if under the law of the People s Republic of China it is not considered an infringing act. Article 147 of the General Principles provides: The marriage of a citizen of the People s Republic of China to a foreigner shall be bound by the law of the place where they get married, while a divorce shall be bound by the law of the place where a court accepts the case. Article 148 of the General Principles provides: Maintenance of a spouse after divorce shall be bound by the law of the country to which the spouse is most closely connected. Article 149 of the General Principles provides: In the statutory succession of an estate, movable property shall be bound by the law of the decedent s last place of residence, and immovable property shall be bound by the law of the place where the property is situated. Article 150 of the General Principles provides: The application of foreign laws or international practice in accordance with the provisions of this Chapter shall not violate the public interest of the People s Republic of China. 13 Promulgated on Apr.10, Article 36 of the Law of Succession provides: For inheritance by a Chinese citizen of an estate outside the People s Republic of China or of an estate of a foreigner within the People s Republic of China, the law of the place of domicile of the decedent shall apply in the case of movable property; in the case of immovable property, the law of the place where the property is located shall apply. For inheritance by a foreigner of an estate within the People s Republic of China or of an estate of a Chinese citizen outside the People s Republic of China, the law of the place of domicile of the decedent shall apply in the case of movable property; in the case of immovable property, the law of the place where the property is located shall apply. Where treaties or agreements exist between the People s Republic of China and foreign countries, matters of inheritance shall be handled in accordance with such treaties or agreements.

6 2015] THE LATEST PRIVATE INTERNATIONAL LAW LEGISLATION ACROSS THE TAIWAN STRAITS 321 Enterprises (2001 version); 14 Article 21 of Adoption Law of the People s Republic of China (hereinafter the Adoption Law ); 15 Chapter 14 (Law Application on Foreign-related Relations) of the Maritime Law of the People s Republic of China (hereinafter the Maritime Law ); 16 Chapter 5 (Application of Law on Foreign-Related 14 Promulgated on Apr. 12, Promulgated on Dec. 29, 1991, and revised on Nov. 4, Article 21 of the Adoption Law provides Where a foreigner wishes to adopt a child in the People s Republic of China, the matter shall be subject to examination and approval of the competent authorities of the adopter s resident country in accordance with the law of that country. The adopter shall provide papers certifying such particulars of the adopter as age, marital status, profession, property, health and whether ever subjected to criminal punishment, which are issued by the competent agencies of the country to which the adopter belongs. Such certifying papers shall be authenticated by a foreign affairs institution of the country to which the adopter belongs or by an agency authorized by the said institution, and by the embassy or consulate of the People s Republic of China stationed in that country concerned. The adopter shall conclude a written agreement with the person who places out the child for adoption and register in person the adoption with a civil affairs department of the People s government at the provincial level. If the parties or one party involved in the adoptive relationship wishes that the adoption be notarized, it shall be done with a notary agency that is qualified to handle foreign-related notarization and is designated by the administrative department of justice under the State Council." 16 Promulgated on Nov. 7, Article 268 of the Maritime Law provides: If any international treaty concluded or acceded to by the People s Republic of China contains provisions differing from those contained in this law, the provisions of the relevant international treaty shall apply, unless the provisions are those on which the People s Republic of China has announced reservations. International practice may be applied to matters for which neither the relevant laws of the People s Republic of China nor any international treaty concluded or acceded to by the People s Republic of China contain any relevant provisions. Article 269 of the Maritime Law provides: The parties to a contract may choose the law applicable to such contract, unless the law provides otherwise. Where the parties to a contract have not made a choice, the law of the country having the closest connection with the contract shall apply. Article 270 of the Maritime Law provides: The law of the flag State of the ship shall apply to the acquisition, transfer and extinction of the ownership of the ship. Article 271 of the Maritime Law provides: The law of the flag State of the ship shall apply to the mortgage of the ship. The law of the original country of registry of a ship shall apply to the mortgage of the ship if its mortgage is established before or during its bareboat charter period. Article 272 of the Maritime Law provides: The law of the place where the court hearing the case is located shall apply to matters pertaining to maritime liens. Article 273 of the Maritime Law provides: The law of the place where the infringing act is committed shall apply to claims for damages arising from collision of ships. The law of the place where the court hearing the case is located shall apply to claims for damages arising from collision of ships on the high sea. If the colliding ships belong to the same country, no matter where the collision occurs, the law of the flag State shall apply to claims against one another for damages arising from such collision. Article 274 of the Maritime Law provides: The law where the adjustment of general average is made shall apply to the adjustment of general average. Article 275 of the Maritime Law provides: The law of the place where the court hearing the case is located shall apply to the limitation of liability for maritime claims. Article 276 of the Maritime Law provides: The application of foreign laws or international practices pursuant to the provisions of this Chapter shall not jeopardize the public interests of the People s Republic of China.

7 322 FRONTIERS OF LAW IN CHINA [Vol. 10: 316 Negotiable Instruments) of the Negotiable Instruments Law of the People s Republic of China (hereinafter the Negotiable Instruments Law ); 17 Chapter 14 (Law Application on Foreign-Related Relations) of the Civil Aviation Law of the People s Republic of China (hereinafter the Civil Aviation Law ); 18 Article 126 of the Contract Law of the People s 17 Promulgated on May 10, 1995, and revised on Aug. 28, Article 94 of the Negotiable Instruments Law provides: The application of law concerning foreign-related negotiable instruments shall follow the provisions of this Chapter. The term foreign-related negotiable instruments used in the preceding paragraph refers to instruments whose draft, endorsement, acceptance, guaranty or payment occurs both within and outside the territory of the People s Republic of China. Article 95 of the Negotiable Instruments Law provides: In the case when the provisions of the international treaties to which the People s Republic of China is a signatory party or in which the People s Republic of China has joined differ from the provisions of this law, the provisions of the international treaties apply, except those articles on which the People s Republic of China has declared to have reservations. For cases where there are no provisions in this law or in the international treaties to which the People s Republic of China is a signatory party or in which the People s Republic of China has joined, the common international practice shall apply. Article 96 of the Negotiable Instruments Law provides: For the capability of civil acts of debtors of negotiable instruments, the domestic law shall apply. In the case when a debtor is regarded as being incapable of civil act by the domestic law or whose civil act is restricted but the debtor is regarded as having the capability of civil act by the law of the place of act, the law of the place of act shall apply. Article 97 of the Negotiable Instruments Law provides: For recordings on the draft and promissory notes when drafting, the law of the place of draft shall apply. For the recordings on the checks, the law of the place of issue shall apply. But the law of the place of payment may also apply if the parties concerned so agree. Article 98 of the Negotiable Instruments Law provides: For acts of endorsement, acceptance, payment and guaranty for negotiable instruments, the law of the place of act shall apply. Article 99 of the Negotiable Instruments Law provides: For the time limit for exercising the right of recourse concerning negotiable instruments, the law of the place of draft shall apply. 18 Promulgated on Oct. 30, Article 184 of the Civil Aviation Law provides: Where contradiction appears, provisions of international treaties to which People s Republic of China is a signatory or party shall prevail over those of this law except those on which People s Republic of China has made reservations. Where the laws of the People s Republic of China and international treaties to which People s Republic of China is a signatory or party make no provisions, international practices can be referred to. Article 185 of the Civil Aviation Law provides: Laws of the country of registration of civil aircraft apply to the securement, transfer and lose of the ownership of civil aircraft. Article 186 of the Civil Aviation Law provides: Laws of the country of registration of civil aircraft apply to the mortgage of civil aircraft. Article 187 of the Civil Aviation Law provides: The law of the seat of the court which accepts the cases involved shall apply to the priority of civil aircraft concerned. Article 188 of the Civil Aviation Law provides: Parties to civil air transport contracts can choose the law to apply to the contracts, except otherwise stipulated by law. Where the parties to contracts make no choices, the law of the country mostly involved in the contract applies. Article 189 of the Civil Aviation Law provides: The law of the tort location where the tort concerned happens applies to liabilities for injuries or damage to the third party on the ground by civil aircraft. The law of the seat of the court which accepts the cases involved should apply to liabilities for injuries or damage to a third party on the surface in open sea by civil aircraft from the air. Article 190 of the Civil Aviation Law provides: The application of foreign laws or international practices in accordance with provisions of this Chapter should not violate the public interest of the People s Republic of China.

8 2015] THE LATEST PRIVATE INTERNATIONAL LAW LEGISLATION ACROSS THE TAIWAN STRAITS 323 Republic of China (hereinafter the Contract Law ; 19 Article 2 and Article 3 of Regulations on the Registration of Adoption by Foreigners in the People s Republic of China (hereinafter the Regulations on the Registration of Adoption ); 20 Article 218 of the Company Law of the People s Republic of China (hereinafter the Company Law ). 21 Furthermore, there are judicial interpretations issued by the SPC that contain conflict rules, such as Several Issues concerning the Implementation of the General Principles of the Civil Law of the People s Republic of China (For Trial Implementation), 22 Several Issues concerning the Implementation of the Law of Succession of the People s Republic of China, 23 and Rules of the SPC on the Relevant Issues concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters. 24 The rules provided in abovementioned laws including the issues on nationality and domicile, legal capacity and disposing capacity, limitation period, real rights, contracts, torts, negotiable instruments, maritime, marriage, adoption, guardianship, maintenance, 19 Promulgated on Mar. 15, Article 126 of the Contract Law provides: Parties to a foreign-related contract may select the applicable law for resolution of a contractual dispute, except as otherwise provided by law. Where the parties of the foreign-related contract fail to select the applicable law, the contract shall be governed by the law of the country with the closest connection thereto. For a Chinese-foreign equity joint venture contract, Chinese-foreign contractual joint venture contract, or a contract for Chinese-foreign joint exploration and development of natural resources which is performed within the territory of the People s Republic of China, the law of the People s Republic of China shall be applied. 20 Promulgated by the Ministry of the Civil Affairs on May 25, Article 2 of the Regulations on the Registration of Adoption provides: The foreigners who want to adopt the children in the People s Republic of China should register under this regulation. One of the couple is foreigner, if they want to adopt children in the People s Republic of China, they should register under this regulation. Article 3 of the Regulations on the Registration of Adoption provides: The foreigners who want to adopt the children in the People s Republic of China should follow the Chinese law and the law of the country which the adopter lives in; if the laws are conflict, the conflict should be settled by the conciliation between the governments. 21 Promulgated on Oct. 27, Article 218 of the Company Law provides: The limited liability companies and joint stock limited companies invested by foreign investors shall be governed by this Law. Where there are otherwise different provisions in any law regarding foreign investment, such provisions shall prevail. 22 最高人民法院关于贯彻执行 中华人民共和国民法通则 若干问题的意见 ( 试行 ) [Several Issues concerning the Implementation of the General Principles of the Civil Law of the People s Republic of China (For Trial Implementation)]. 23 最高人民法院关于贯彻执行 中华人民共和国继承法 若干问题的意见 (Several Issues concerning the Implementation of the Law of Succession of the People s Republic of China). 24 最高人民法院关于审理涉外民事或商事合同纠纷案件法律适用若干问题的规定 (Rules of the Supreme People s Court on the Relevant Issues concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters).

9 324 FRONTIERS OF LAW IN CHINA [Vol. 10: 316 succession, agency, bankruptcy, intellectual property rights, and interregional conflicts of law, etc. 25 Before the promulgation of the Law of Application of the Law, the legislation of Chinese private international law is scattered in many separate laws, it is inconvenient to find and apply the rules. Chinese scholars keep trying to ameliorate the troublesome fragmentation of private international law. Chinese government had launched a codification proposal on drafting a Civil Code in Part 9 of the Draft Civil Code accommodates 8 chapters, including 94 articles of conflict rules based on the suggestion of the Model Law of Private International Law of the People s Republic of China (hereinafter the Model Law ). The Model Law was presented by the Chinese Society of Private International Law (hereinafter the CSPIL ) in The CSPIL supplies not only the legislative reference of the government, but also the theoretical resources of private international law by its dynamic academic activities. From 1993, the CSPIL began its drafting works on the Model Law. After several amendments, the final text is the 6 th edition 26 that has included 166 articles separated in 5 chapters. Those include General Provisions, Jurisdiction, Application of Law, Judicial Assistance, and Supplementary Provisions. The Model Law has little legal effect, and it aims to supply the references to legislature and academic research. Although the Civil Code draft failed to gain approval, the scholars never give up on promoting the government and legislative organs to enact a code of private international law. Chinese legislature is scheduled to draft the law of Application of Law for Foreign-Related Civil Relations again. The final text of the proposal of Law of Application of Law for Foreign-Related Civil Relations was presented by the CSPIL in March, Chinese scholars have discussed the framework of this law, and most of them include the rules of jurisdiction and judicial assistance. The Law of the Application of Law is divided into 8 chapters, 52 articles. Chapters III, IV, V, VI and VII emphasize conflict rules. Chapters I and VIII focus on the establishment and implementation of the conflict rules. Chapter II Civil Subjects, contains the conflict rules on the identity and capacity of the civil subjects, civil agency, trust and arbitration. From abovementioned materials we can safely draw the conclusion that Chinese legislation system of the law of the application of law is, in essence, the conflict rules, without the rules of jurisdiction and judicial assistance. To avoid the repetition of the statutes and the chaos of amending the related statutes, Chinese legislature limits the frame of Law of the Application of Law into the conflict rules, and remains the dispute resolution rules in the procedure law. If the formal rules contained in other laws contradict the Law of the Application of 25 HE Qisheng & XU Wei, 中国国际私法 30 年 : 回顾与展望 (Thirty Years of Chinese Private International Law-Review and Perspective), in 2008 年中国国际私法年会论文集 (Collection of Papers of the Annual Conference of Chinese Society of Private International Law), at (2008). 26 HUANG Jin eds. 国际私法 (Private International Law) (2 nd edition), Law Press (Beijing), at 129 (2006).

10 2015] THE LATEST PRIVATE INTERNATIONAL LAW LEGISLATION ACROSS THE TAIWAN STRAITS 325 Law, the later would be prevailed. It is worth noting that there are still conflict rules existing in some separate statutes such as Negotiable Instruments Law, Civil Aviation Law, Maritime Law and the laws concerning the intellectual property rights would be still effective. 27 Although the Law of the Application of Law is far from satisfactory to the scholars, it is still a millstone in the development of Chinese private international law. II. NATIONALITY AND HABITUAL RESIDENCE, DIFFERENCES IN THE LEX PERSONALIS A. Nationality and Domicile, the Choice of Certainty Lex personalis is an important attribution in private international law. The Law Governing the Application of Law provides the lex personalis in the General Provisions. Before the amendment, the Law Governing the Application of Law determines the latest nationality, which the party acquired should be regarded as the party s nationality if he has plural nationalities acquired at different times. And the most significant relationship doctrine should be applied to determine the nationality under the circumstance that the party acquired plural nationalities at the same time. Otherwise, many nations had abandoned to determine the party s nationality on the latest one he/she acquired, because many people still have the most significant relationship to his/her previous nationality. Therefore, the most significant relationship doctrine that has been adopted in the amended Law Governing the Application of Law in Taiwan is laws regarding the determination of the parties nationality no matter what time he/she had acquired, 28 which is consistent with the trend of global private international law. If the party does not have the nationality, the law of the domicile shall be applied to supplement the nationality law, which confirms the certainty of the applicable law. 29 Last but not least, the doctrine of the most significant relationship that has been adopted to be the backup under the circumstances that the parties have plural nationalities and domiciles. Reasonable and precise logic of the legislation confirm the certainty of the legislation, which reveals the Taiwan s nature and tradition of the civil law system. B. Habitual Residence: Trend of the Global Legislation Different from the Taiwan legislation, the Law of the Application of Law provides the habitual residence as the connecting factor of Lex personalis in Chapter II Civil 27 See Article 3 of Interpretations on the Law of the Application of Law (I). 28 Article 2 of the Law Governing the Application of Law provides: If the party s national law should be applied and the party has plural nationalities, his national law shall be the nation which has the most significant relationship to him. 29 Article 3 of the Law Governing the Application of Law provides: If the party s national law should be applied and the party has no nationality, the law of his domicile shall be applied.

11 326 FRONTIERS OF LAW IN CHINA [Vol. 10: 316 Subjects. 30 A natural person s lex personalis has been determined by the habitual residence under the circumstances that the natural person has plural nationalities or has no nationality; doctrine of the most significant relationship is usually applied when the natural person does not have the habitual residence. The concept of habitual residence was first adopted by the Hague Conference on Private International Law in Later the term of habitual residence started to be used to mitigate the conflict between the doctrine of nationality and domicile in the Convention of June 15, 1955, relating to the Settlement of the Conflicts between the Law of Nationality and the Law of Domicile (hereinafter the Convention ). In the Convention, the application of law of domicile is prior to the law of nationality. 32 Nevertheless, the domicile could be interpreted extensively to the habitual residence. 33 The application of law of habitual residence is consistent with the current situation of the globalization. The motive to pursue the better job, education, etc., and better mobility right of the people loosen the connections to the law of their nationality. The law of habitual residence is the law of the place where people are habitually working and living, and governed by the law of the habitual residence meets their anticipation and will. The adoption of habitual residence in the Law of the Application of Law was regarded as a progress 34 and innovation 35 in Chinese mainland legislation. Nevertheless, the habitual residence is not an ideal term to determine the applicable law. The party could alter the habitual residence and conduct forum shopping. There is no well-accepted definition 36 of the habitual residence that hinders the judges to determine the applicable law via this term, and it increases the level of uncertainly and the probability of arbitrary decisions. In this respect, the application of law of nationality may 30 Article 19 of the Law of the Application of Law provides: If the laws of the state of nationality are to apply in accordance with this Law and a natural person has more than two nationalities, the laws of the state of nationality in which he has a habitual residence shall apply; if he has no habitual residence in any of the states of nationality, the laws of the state of nationality with which he has the closest relation shall apply. If a natural person has no nationality or his nationality is uncertain, the laws at his habitual residence shall apply. 31 David F. Cavers, Habitual Residence : A Useful Concept?, 21 American University Law Review, 477 ( ). 32 Article 1 of the Convention provides: If the law of party s docile country provides that his national law should be applied, and his national law provides the domicile law should be applied, the contracting states shall apply the law of the party s domicile. 33 Article 5 of the Convention provides: Domicile within the meaning of this Convention is the place where a person habitually resides, unless it depends on that of another person or headquarter of an authority. 34 HUANG Jing, 中国涉外民事关系法律适用法的制定与完善 (The Establishment and Perfection of Chinese Law of the Application of Law), 29(3) 政法论坛 (Tribune of Political Science and Law), 3 12 (2011). 35 XIAO Yongping, 中国国际私法立法的里程碑 (The Millstone of Chinese Legislation on the Private International Law), 2 法学论坛 (Legal Forum), 47 (2011). 36 Some scholars holds that without fixed definition is one of the advantages of habitual residence to avoid the rigidity of application and the ambiguity in translation, see Dicey, Morris & Collins, The Conflict of Laws (14 th edition), Sweet & Maxwell (London), at 168 (2006).

12 2015] THE LATEST PRIVATE INTERNATIONAL LAW LEGISLATION ACROSS THE TAIWAN STRAITS 327 lead to avoid the uncertainty and ensure the rights and obligations of the parties wherever the judicial process takes place. To avoid the shortages of the habitual residence, the Law of the Application of Law adopts the flexible connecting factors of the lex personalis on three steps of habitual residence-nationality-the most significant relationship, 37 and provides the habitual residence as the primary connecting factor on the issues of civil subjects, 38 including legal capacity, disposing capacity, declaration of missing or death, right of personality, people of mutual or no nationality; marriage and family, 39 including marriage, personal and property relationships between the couple, personal and property relationships between the parents and children, divorce by agreement, adoption, maintenance, guardianship; and inheritance, 40 including legal inheritance, form and validity of testament). Furthermore, the definition of habitual residence has been clarified in the Interpretations on the Law of the Application of Law (I), 41 which requires that the place that a natural person has resided continuously for 1 year and regards it as the living center could be recognized as the habitual residence of natural person; otherwise, the circumstances with the purpose of medical, labor dispatching and official business should be excluded. Therefore, the application of the term of habitual residence could be more precisely. III. THE APPLICATION OF THE MOST SIGNIFICANT RELATIONSHIP DOCTRINE The doctrine of most significant relationship has been emphasized in the Law of the Application of Law 42, which has been regarded as the backup for the application of any laws concerning foreign-related civil relations which was not provided in the legislation. The application of the most significant relationship doctrine avoids the possibility of the unrevealed insufficiencies of the Law of the Application of Law. 43 Different from the Chinese mainland legislation, the Law Governing the Application 37 Article 19 of the Law of the Application of Law provides: If the laws of the state of nationality are to apply in accordance with this Law and a natural person has more than two nationalities, the laws of the state of nationality in which he has a habitual residence shall apply; if he has no habitual residence in any of the states of nationality, the laws of the state of nationality with which he has the closest relation shall apply. If a natural person has no nationality or his nationality is uncertain, the laws at his habitual residence shall apply. 38 See Articles 11, 12, 13, 15, 19 of the Law of Application of Law. 39 See Articles 21, 23, 24, 25, 26, 28, 29, 30 of the Law of the Application of Law. 40 See Articles 31, 32, 33 of the Law of the Application of Law. 41 See Article 15 of Interpretations on the related Questions on the Application of Law of the Application of Law. 42 Article 2(2) of the Law of Application of Law provides: If there are no provisions in this Law or other laws on the application of any laws concerning foreign-related civil relations, the laws which have the most significant relationship with this foreign-related civil relation shall apply. 43 HUANG Jing, 中国涉外民事关系法律适用法的制定与完善 (The Establishment and Perfection of Chinese Law of the Application of Law), 29(3) 政法论坛 (Tribune of Political Science and Law), 3 12 (2011).

13 328 FRONTIERS OF LAW IN CHINA [Vol. 10: 316 of Law adopts the jurisprudence to be the backup for the possible insufficiency of the applicable law rules. 44 Comparing to the most significant relationship, the application of jurisprudence lacks the certainty, and adopting the former is the trend of private international law. The most significant relationship doctrine is found in specific rules, which include the determination of the nationality, 45 the determination of habitual residence, 46 plural domestic laws, 47 agency, 48 the establishment and validity of the creditor s right, 49 torts, 50 bill of lading, 51 negotiable securities safeguarded by the custodian trustee, 52 validity of the marriage agreement, 53 validity of the marriage, 54 etc. 44 Article 1 of the Law Governing the Application of Law provides: If there are no provisions in this Law or other laws on the application of any laws concerning foreign-related civil relations, the jurisprudence shall be quoted to find the applicable law. 45 Article 2 of the Law Governing the Application of Law provides: If the party s national law should be applied and the party has plural nationalities, his national law shall be the nation which has the most significant relationship to him. 46 Article 4 of the Law Governing the Application of Law provides: If the party s domicile law should be applied and the party has plural domiciles, his domicile law shall be the place where has the most significant relationship to him. 47 Article 5 of the Law Governing the Application of Law provides: If the party s national law should be applied, and there re plural regions applying different laws in his nation, the law governing the application of law in this nation shall be applied; if the law governing the application of law in this nation is unclear, the most significant relationship doctrine shall be applied. 48 Article 17 of the Law Governing the Application of Law provides: The applicable law on the establishment of agency right and the relationship between the parties should be the law chosen by the expressive parties autonomy; if there is no expressive parties autonomy, the law of the most significant relationship to the place of agency act shall be applied. 49 Article 20 of the Law Governing the Application of Law provides: The law determined by the parties autonomy shall be applied on the establishment and validity of the creditor s right. If there s no parties autonomy or the law determined by the parties autonomy is invalid, the most significant relationship shall be applied to find the applicable law. 50 Article 25 of the Law Governing the Application of Law provides: The Lex Loci Delicti shall be applied on the obligation of torts. Nevertheless if the more significant related law exists, this law shall be applied. 51 Article 43 of the Law Governing the Application of Law provides: The relationship of the bill of lading shall apply the law written in the bill of lading; if there s no chosen law writing in the bill of lading, the law of the most significant place shall be applied. 52 Article 44 of the Law Governing the Application of Law provides: If the negotiable securities safeguarded by the custodian trustee, the acquirement, abolishment, discharge or alternation of negotiable securities shall apply the law written in the agreement of collective custody; if there is no applicable law written in the agreement, the law of the place of the most significant relationship shall be applied. 53 Article 45 of the Law Governing the Application of Law provides: The validity of the marriage agreement applies the mutual national law of the parties; the mutual domicile law shall be applied if there s no mutual national law; the law of the place of the most significant relationship of the parties shall be applied if there s no mutual domicile law. 54 Article 47 of the Law Governing the Application of Law provides: The validity of the marriage applies the mutual national law of the parties; the mutual domicile law shall be applied if there s no mutual national law; the law of the place of the most significant relationship of the marriage shall be applied if there s no mutual domicile law.

14 2015] THE LATEST PRIVATE INTERNATIONAL LAW LEGISLATION ACROSS THE TAIWAN STRAITS 329 It is relatively clear the most significant relationship doctrine has been adopted in the Law Governing the Application of Law to find the applicable law in many categories of civil relations. Nevertheless, the importance of the doctrine has never been emphasized as the Law of the Application of Law to provide it in the general provisions. IV. ANALYSIS ON THE TERMS RELATED TO THE INTELLECTUAL PROPERTY RIGHTS A. Analysis on the Intellectual Property Rights Terms in the Law of the Application of Law 1. The Ownership and Content of Intellectual Property Rights. Article 48 of Law of the Application of Law provides that the laws at the locality where protection is claimed shall be applied to the ownership and content of intellectual property rights. 55 There are complains on this article that the lex originis can be applied on the existence, ownership and validity of the intellectual property rights, leaving the content, scope, way of protection apply the Lex protectionis, on the grounds that the lex originis could protect the intellectual property rights which had been existed and authorized already in foreign countries, and avoid the different protection levels in different foreign countries. lex protectionis has been regarded as the general principle of the application of law on copyright, which means the law at the locality where protection is claimed. Lex protectionis is easily confused with the lex loci delicti and lex fori, but they are totally different. First, lex loci delicti means the law at the locality that the infringement takes place. The lex loci delicti can be initiated as the principle of application of law on the infringement of intellectual property rights; nevertheless, it cannot be applied to the application of law on the existence, ownership and assignment of intellectual property rights. Second, the country of the Lex protectionis means the country where the protection of intellectual property rights is claimed, it does not mean the country of the lex fori. Lex fori determines the procedure law of the lawsuit, not the substance law that can be determined by the Lex protectionis. The country where the protection is claimed could be the country where the intellectual property rights are authorized, and also the country where the infringement takes place, it can be determined by the People s Court based on the facts and claim of the parties. Comparing with Law of the Application of Law, the terms concerning intellectual property rights in the Law Governing the Application of Law are more simple, but the principle of lex protectionis is also accepted, 56 which will likely benefit the dispute resolution on intellectual property rights across the Taiwan Strait. 55 Article 48 of the Law of the Application of Law provides: The laws at the locality where protection is claimed shall apply to the ownership and contents of the intellectual property rights. 56 See Article 42(1) of the Law Governing the Application of Law.

15 330 FRONTIERS OF LAW IN CHINA [Vol. 10: The Assignment and License of Intellectual Property Rights. Article 49 of Law of the Application of Law provides that parties may choose the laws applicable to the assignment and licensed use of intellectual property rights by agreement. If the parties do not choose, the relevant provisions on contracts of this Law shall apply. 57 In essence, the agreement of the assignment and licensed use of intellectual property rights is a kind of contract, and the only difference comparing with the sales contract and service contract in Chinese law system is its object, the right. The conclusion and performance of the intellectual property rights contract does not have any specialties. Therefore it is unnecessary to provide the article of application of law on this kind of contract in the Law of the Application of Law. 58 Article 49 of the Law of the Application of Law authorizes the parties to choose the law applicable to the contract, which reiterates the doctrine of party s autonomy reflected in the Article 3 59 of the Law of the Application of Law. Regarding the application of the law in contract, the Law of the Application of Law emphasizes the doctrine of party s autonomy and the most significant relationship. 60 Therefore, we can conclude the procedure of finding application of laws on the intellectual property rights contracts. First, the law that the parties choose should be applied to the contract. 61 Second, if there is no parties agreement on the choice of law, and the Law of the Application of Law does not provide, the most significant relationship doctrine should be applied to find the applicable law. 62 Third, the international treaties and conventions that China had concluded or accessed to should be applied to the contract prior to domestic laws. Forth, the applicable foreign law should be substance law on the grounds that Chinese law had excluded the renvoi. 63 Fifth, if there are mandatory 57 Article 49 of the Law of the Application of Law provides: The parties may choose the laws applicable to the assignment and licensed use of intellectual property rights by agreement. If the parties do not choose, the relevant provisions on contracts of this Law shall apply. 58 WANG Chengzhi, 涉外民事关系法律适用法 ( 草案 ) 知识产权法条分析 (Analysis of the Intellectual Property Rights Terms in the Law of the Application of Law in Foreign-Related Relations), in 2010 年中国国际私法年会论文集 (Collected Papers of the Annual Conference of Chinese Society of Private International Law), at (2010). 59 Article 3 of the Law of the Application of Law provides: The parties may explicitly choose the laws applicable to foreign-related civil relations in accordance with the provisions of law. 60 Article 2 of the Law of the Application of Law provides: The application of laws concerning foreign-related civil relations shall be determined in accordance with this Law. If there are otherwise special provisions in other laws on the application of laws concerning foreign-related civil relations, such provisions shall prevail. If there are no provisions in this Law or other laws on the application of any laws concerning foreign-related civil relations, the laws which have the closest relation with this foreign-related civil relation shall apply. 61 Article 3 of the Law of the Application of Law provides: The parties may explicitly choose the laws applicable to foreign-related civil relations in accordance with the provisions of law. 62 See Article 2(2) of the Law of the Application of Law. 63 Article 9 of the Law of the Application of Law provides: Foreign laws applicable to foreign-related civil relations do not include the Law of the application of law of this foreign country.