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V. C. Application of Dépeçage Method
The Dépeçage method can be defined broadly to cover all situations where the rules of different states are applied to govern different issues in the same case. It can be defined more narrowly to be present only when the rules of different states are applied to govern different substantive issues, and the most restrictive definition would confine the term to situations where by applying the rules of different states to different issues a result is reached which could not be obtained by exclusive application of the law of any one of the states concerned. It is one of the softening ways to deal with the objective conflicts rule, which has already accepted by legalization and practice of private international law in many countries. The first of these definitions is the one that will be adopted in this article.
In Heilongjiang Dongning County Huabo Economical Trade Co. v. Shandong Weihai Co. of Chinese Foreign Shipment etc., the court points out:
Because both sides and facts of contract are within the boundaries of the PRC, the case shall be governed by the Chinese law. The transformation of ownership of the ship and some evidences arising from Russia, however, shall be governed by Sino-Russia bilateral treaty.
Generally speaking, this court have adopted the dépeçage method better, and applied different laws to different issues on the basis of distinguishing different legal relationships, such as contract, evidence, ownership, etc. This judicial practice is in line with recent trend of legislation and practice in private international law, which embodies the spirits of the balance between “certainty” and “flexibility” of application of law. Through analyzing court’s judgment, however, we can found reasons of application of law in this case are still not enough, especially on application of the principle of the most significant relationship, application of law of evidence, application of law of ship’s ownership. In practice, it is essential to explain the reasons why the case shall be applied to this law but not that law, if the judge may make the judgment more convincing.
In addition, we think, the judge should not only explain the reasons but also write relevant laws, regulations and treaties quoted clearly, including their date, name and relevant contents in judgments. This is not only the legal basis that the party and masses know and understand how the case was adjudged but also the serious requirements of judgment as judicial document. These typical cases in particular published in the Chinese Gazette of the Supreme People’s Court, having important directive significance on the similar cases in the future, should be improved in this case.
【注释】 * Professor of Law and Director, Wuhan University International Law Institute, PRC; Vice President of Wuhan University; President of Chinese Society of Private International Law (CSPIL); Vice-President of Chinese Society of International Law (CSIL); Arbitrator of International Court of Arbitration for Sports (CAS); Arbitrator of Chinese International Economic and Trade Arbitration Commission (CIETAC); Member of the International Arbitration Commission of China Chamber of International Commerce (CCIC); Member of the Advisory Board, Yearbook of Private International Law (Kluwer Law International); Chief Editor of Chinese Yearbook of Private International Law and Comparative Law; Chief Editor of Wuhan University Law Review.
>] Doctoral Candidate, Wuhan University International Law Institute, PRC; L.L.M., Zhongnan University of Economics and Law, China, 2002.
According to the Customs’ rudimentary data, the total value of import & export increased dramatically, U.S. $ 620.785 billion in 2002, which accrues 21.8% as to the total in the same period of last year, with imports rising 21.2%, to U.S. $ 295.216 billion; and exports climbing 22.3%, to U.S. $ 325.569 billion in the same period, available at http://www.mofcom.gov.cn/table/jcktj/tjkb/kb2002_12.html (last visited on May 24, 2003).
Legal Interpretation (2001) No. 22, adopted at the 1203rd Meeting of the Judicial Committee of the Supreme People’s Court on December 25, 2001.
Legal Interpretation (2002) No. 22, on May 1, 2002.
See “Rules on Certain Issues Relating to Jurisdiction over Proceedings of Foreign-Related Civil and Commercial Cases”, Wan E’xiang, Vice President of the Supreme People’s Court, Answer for Reporters’ Question, in Cao Jianming (ed.), Civil Trial Instruction and Reference, Vol. 1, 2002, the Law Press and People’s Courts’ Press, Beijing 2002, pp.135-37.
Adopted by the 4th Meeting of the Seventh National People’s Congress on April 9, 1991.
See Zhang Jinxian, Understanding, Application of Rules on Certain Issues Relating to Jurisdiction over Proceedings of Foreign-Related Civil and Commercial Cases, 4 China Law 10 (2002).
See the Document of July 14, 1992, Approved by the No. 528 Conference of the Judgment Commission of the Supreme People’s Court.
See Articles 42, 43 of Legislation Law of People’s Republic of China, 2000.
According to Article 12 of Some Rules about Judicial Interpretation Work issued by the Supreme People''s Court in 1999, the judicial interpretation had no longer the legal effect since it has formulated the new judicial interpretation. But at present, the Opinions has not certainly expired and the related stipulation has not been cancelled.
See Gao Shawei, The Supreme People’s Court’s Interpretation on Service of Judicial Documents on Overseas Companies, 5 China Law 37-38 (2002).
See Xu Hong, Introduction to Hague Service Convention, Yearbook of Chinese International Law, 1991, p. 455.
486 U.S.694, 700 (1988).
Ibid.
See Gao Shawei, The Supreme People’s Court’s Interpretation on Service of Judicial Documents on Overseas Companies, 5 China Law 38 (2002).
Adopted by the 18th Meeting of the Standing Committee of the Sixth National People’s Congress on December 2, 1986.
See Gu Minkang, A Mode of China’s Uniform Bankruptcy Law: An Understanding of the Supreme People’s Court’s Rules on Issues concerning Hearing of Enterprise Bankruptcy Cases, 4 China Law 42 (2003).
Issued by the Supreme People’s Court on November 7, 1991.
Issued by the Supreme People’s Court on July 14, 1992.
Issued by the State Council on October 25, 1994.
Issued by the State Council on March 2, 1997.
Be promulgated on December 29, 1993.
Article 4 of the Rules.
See Gu Minkang, A Mode of China’s Uniform Bankruptcy Law: An Understanding of the Supreme People’s Court’s Rules on Issues concerning Hearing of Enterprise Bankruptcy Cases, 4 China Law 43 (2003).
Article 1 of the Rules.
Article 3 of the Rules.
About “forum non conveniens’, see further Xu Weigong, Studies on the Principle of Forum Non Conveniens, Doctoral Dissertation, Wuhan University Law School, 2001.
Article 6, 7 of the Rules.
Article 10 of the Rules.
Article 12 of the Rules.
Article 55 of the Rules.
See Gu Minkang, A Mode of China’s Uniform Bankruptcy Law: An Understanding of the Supreme People’s Court’s Rules on Issues concerning Hearing of Enterprise Bankruptcy Cases, 4 China Law 43 (2003).
See Gu Minkang, A Mode of China’s Uniform Bankruptcy Law: An Understanding of the Supreme People’s Court’s Rules on Issues concerning Hearing of Enterprise Bankruptcy Cases, 4 China Law 43 (2003).
The primary information of cases is available at Chinese Supreme People’s Court’s judicial web site on foreign commercial and maritime disputes, at http://www.ccmt.org.cn, and in the Chinese Gazette of the Supreme Court (2002-2003). In addition, it is necessary to explain that this article does not include cases on marriage, family and succession because of absence of the information published.
These courts include the Supreme People’s Court, the Higher People’s Courts, the Intermediate People’s Courts and the Maritime Courts.
(2002)-E’min-Si-Zhongzi-No.11, the 2nd judgment of Hubei Higher People’s Court; (2001)-Wujing-Chuzi-No.141, the 1st judgment of Wuhan Intermediate People’s Court.
(2002)-Lumin-Si-Zhongzi-No.6, the 2nd judgment of Shanghai Higher People’s Court; (2001)-Weijing-Wai-Chuzi-No.4, the 1st judgment of Weihai Intermediate People’s Court.
“China” here and below only refers to Mainland China.
(2001)-Lumin-Si-Zhongzi-No.3, the 2nd judgment of Shandong Higher People’s Court; (2000)-Qingzhi-Chuzi-No.111, the 1st judgment of Qingdao Intermediate People’s Court.
(2002)-Ganmin-Si-Zhongzi-No.4, the 2nd judgment of Jiangxi Higher People’s Court; (2001)-Pingjing-Chuzi-No.39, the 1st judgment of Pingxiang Intermediate People’s Court).
“Chinese law” here and below only refers to the law of Mainland China.
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