[case]

1999165438+1On the afternoon of October 20th, Chen Qiang, a university employee, was knocked down by Jack, a foreign student who overtook him from behind, when he turned right by bike on campus. According to the investigation, Chen Qiang's right inner ankle was bruised and the front wheel of the bicycle was damaged, resulting in economic losses of about 140 yuan. The school mediated for both parties, but both parties failed to reach an agreement on the amount of compensation that Jack should pay to Chen Qiang. So Chen Qiang sued the local people's court. The court accepted the case.

[question]

1. How should the court apply the law to this case?

2. If both parties to this case are foreigners, how should the court apply the law?

[analysis]

1. In this case, the defendant Jack's behavior constitutes infringement. According to the principle that the law of the place of infringement is applicable to infringement, the law of the place of infringement should be the applicable law. In this case, the place where the infringement occurred and the place where the damage occurred were both in China, and the court should apply the laws of China. China's "General Principles of Civil Law" also has provisions on this.

2. According to the provisions of Article 146 1 of the General Principles of Civil Law: "The law of the place where the infringement occurred shall apply to the compensation for the damage caused by the infringement. If both parties have the same nationality or domicile in the same country, they can also use the laws of their own countries or residences. "Therefore, if both parties to this case are foreigners and both have the same nationality or domicile in the same country, their nationality law or domicile law can be applied; If the two parties have different nationalities or have different residences in the same country, the law of the place where the infringement occurred shall apply.

Application of conflict norms

[case]

A British citizen made seven wills before his death, including 1 will and six appendices. The will and two appendices are made in the form of Belgian substantive law, while the other four appendices are not made in this form, but they are in line with the provisions of English wills law. According to British law, A's domicile at the time of his death was in Belgium, while according to Belgian law, foreigners must obtain government permission to settle in Belgium, and A's domicile at the time of his death was still in Britain, because this was to obtain such permission. The question that British courts need to solve is: Is the will made by British citizens valid?

The British judge who tried the case solved the above problems by applying Belgian law under the guidance of English conflict law, and admitted that the will and two appendices made according to Belgian law were valid in form. But at the same time, it is pointed out that British judges should apply the law like Belgian judges when trying this case. Since the Belgian conflict law stipulates that "the validity of the will made by foreigners who have not legally established their domicile in Belgium shall be determined according to the domestic laws of the parties concerned", Belgian judges will apply the British initiative to determine the validity of the remaining four appendices. Therefore, the British judge will finally apply English law and determine that the other four appendices are also valid in form.

[question]

1. In this case, when the British conflict of laws rules point to Belgian law, do British judges apply Belgian substantive law or conflict of laws?

2. Is it reasonable for British judges to apply the law? Why?

[analysis]

1. This is the earliest case of renvoi adopted by English courts. The so-called renvoi means that for a foreign-related civil relationship, country A (the country where the court is located) takes the law of country B as the applicable law under the guidance of its own conflict norms, but according to the conflict law of country B, country A should be the applicable law, and as a result, country A decides the case according to the law of country B.

In this case, when determining the survivor and the validity of the two appendices, it is based on the substantive law of Belgium; In determining the validity of the other four appendices, British judges applied Belgian conflict norms.

2. Different countries hold different attitudes towards renvoi in legislation and practice. The purpose of applying Belgian conflict rules by British judges is to avoid the harsh stipulation that the formal elements of a will can only be determined according to the last residence of the testator, so as to confirm the formal effect of a will that reflects the wishes of the parties as much as possible. At that time, European countries adjacent to Britain stipulated that the formal requirements of a will could be based on the personal law of the testator (including domestic law and domicile law) or the law of the place where the will was made. So from this perspective, the practice of British judges should be reasonable.

[case]

W is an American resident, 1956. During his stay in Saudi Arabia, his car was knocked down by a truck driven by Z, an employee of American oil company, and W was seriously injured. Later, W sued in new york, where the American oil company obtained the business license, and asked the court to order the American oil company to make tort compensation. According to the conflict norms of "Tort Law Applicable to Tort", the court of first instance decided that Saudi Arabian law was applicable to this case, and asked the parties to provide and prove relevant Saudi Arabian laws. Therefore, the plaintiff failed to provide or prove the Saudi Arabian law supporting his claim, and the defendant failed to provide or prove the Saudi Arabian law supporting his defense. The court finally dismissed the lawsuit on the grounds that the plaintiff's claim was insufficient. The plaintiff refused to accept the appeal.

[question]

1. What is the recognition of foreign law? How many ways can foreign laws be determined?

2. When foreign laws are unclear, how to solve the problem of law application?

[analysis]

1. The determination of foreign law, also known as the determination of foreign law, refers to how to find out the existence and content of foreign law when the court of a country designates the application of foreign law according to its own conflict norms.

Because countries have different opinions on whether foreign laws are facts or laws, the methods of identifying foreign laws can be roughly divided into the following three categories:

(1) Taking foreign laws as facts, the parties shall provide evidence to prove it;

(2) Foreign laws are regarded as laws, and judges are responsible for finding out;

(3) Foreign laws are basically regarded as laws. In principle, judges are responsible for finding out, and if necessary, they can also ask the parties for assistance.

2. Countries have different theories and practices on how to solve the problem of law application when foreign laws are unclear. However, the legislation and practice of various countries mainly adopt the following two methods to solve it:

(1) Replace the applicable foreign law with the law of the forum;

(2) Rejecting the claim or defense.