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Lex situs limitations and overcome

Author: LuoQiang
Tutor: DuXinLi
School: China University of Political Science
Course: International Law
Keywords: limitation overcome Lex rei sitae
CLC: D997
Type: Master's thesis
Year: 2006
Downloads: 212
Quote: 3
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Abstract

Lex rei sitae is one of the most important principle of international private law. Asit came into form from 13th century, this principle is always be used to solve almost allof the questions of conflict of law in Juris in rem, such as the distinguishing problem ofwhether a thing is movable or immovable,the range of the object of Juris in rem,thecategory and content of the Juris in rem and so on.However, along with the progress of society, new kinds of social relationship comeinto being continually, which change the social conditions that the Lex rei sitae exist ingradually. So, the conflict between the new social relationship and the dated lawbecome more and more obvious. The idiographic representation is the Lex rei sitaecannot acclimatize itself to the need of social progress and, on solving new problems it’sability not equal to it’s ambition.The limitation of Lex rei sitae is embodied in two aspects:Firstly, the concept of “things” and “Juris in rem” are too parochial and shortof the quality of opening and containing. Analyzing from the historical source, theunderstanding of the concept of things and Juris in rem are very different in Rome、French and German law. In the law academe of our country, there are some disorder andmisunderstanding of these concepts. The most prominent performance is the idea that,the things and things of physical existence is one thing which, affect the investigation ofinternational private law in our country. Most scholar in our country consider that theextension of the things’ concept is only include movables and immovables. Therefore,the problems of real rights are limited in those two aspects and, some problems thatcannot be concluded in those aspects are out of regulating, such as immaterial property、unreal property and trust property and so on.Secondly, the method that ascertain the connecting element simply from thephysical space is too rigid and cannot accommodated to the need of new kinds of realrights relationship. This method is rooted in the limitation described in forementionedpart. Actually, besides the physical existence, the things can take other forms. Althoughin traditional theory, there are some regulations of exception, but they cannot solve thenew problems because of confining in unilateral understanding. For example, the virtualproperty that exist in the Internet cannot be located the seat in physical space bytraditional method and, just because of this, the task of confirming the connectingelements will fail.Well then, aimed at the limitations of Lex rei sitae, how to overcome they?Surveying the legislation and judicature of those country whose international privatelaw(conflict law) is comparatively developed, such as Great Britain、United State、Deutschland and Switzerland, we can easily discover a common trend, which is to“soften” the Lex rei sitae. Although the methods of softening are different, one point isdeserving attention, that is, the flexible connecting elements are becoming beneficialcomplementarity to the Lex rei sitae. In addition to this, we can find this trend ininternational legislation, such as the Hague Convention on Place of the RelevantIntermediary Approach.Therefore, the writer think in order to overcome the limitation of Lex rei sitae, wecan take approach in two aspects: Firstly, we can overcome the limitation of Lex reisitae through explaining the concepts of law、increasing the amount of connectingelements、importing Lex voluntatis and the principle of the most significant relationship.Secondly, we can also overcome the limitation of Lex rei sitae through establishing theunited substantial rules. No other than this, the Lex rei sitae can adapt to the socialprogress and operate well in modern society.

Lex situs limitations and overcome

Abstract

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