Topic 1. International private law as a branch of law and science: concept, subject, method, history
The concept of MChP. Scope of MCHP. The main factors of increasing its role and importance. The term “MChP” (problematics).
The concept of MChP. Subject, definition
The name PIL ( private international law ) was first proposed by the American author Joseph Storey in 1834. In Europe, this name has been widely used since the 40s. 19th century (droit international prive, Internationales Privatrecht, diritto internazionale privato, derecho international privato). In Western literature, more than 20 other names have been proposed (for example, interstate private law), but all of them have not received recognition. The first original work in Russia by N.P. Ivanov, devoted to this subject, was published in 1865 in Kazan under the title “Foundations of Private International Jurisdiction”.
PIL is a complex legal system that combines the norms of domestic legislation, international treaties and customs that regulate property and personal non-property relations ” complicated” by a foreign element (i.e. relations of an international nature), using conflict-of-law and substantive methods .
The subject of PIL is property and personal non-property relations of a private law nature, which brings it closer to domestic civil law. On the other hand, PIL is similar to public international law in that it contains various international elements. The term “international” used in the context of PIL differs from the similar term of public international law. It means that civil law relations go beyond the framework of the domestic legal system in certain cases, which thereby creates the possibility of applying foreign law, as well as the norms of international treaties and customs .
The subject of PIL is private law relations of an international nature (international private law relations) – property relations between individuals and legal entities. Equally, the state can become a subject of PIL, but on condition that the second party is a foreign individual or legal entity. Private law relations acquire an international character when the so-called “foreign element” appears in their composition.
The same term “PIL” denotes both the system of norms (branch of law) and the branch of jurisprudence . Compared with the names of all other branches of law, this name is the least generally recognized.
The subject of international private law includes civil law relations complicated by a foreign element .
In modern legal science, there is a pluralism of opinions regarding the subject of legal regulation of private international law.
· The dominant position is on the formation of the subject of international private law from civil, family and labor relations, complicated by a foreign element (M. M. Boguslavsky, N. I. Marysheva, V. P. Zvekov). At the same time, it is emphasized that the subject of private international law is civil legal relations “in the broad sense”. The three-term structure of the subject of private international law is based on the theses about the similar nature of these relations (that is, they are private relations), as well as the presence of a special unifying circumstance – a foreign element.
· Along with the traditional vision of the subject of private international law, there are concepts that expand or narrow the range of regulated relations.
· Within the framework of the “civilistic” concept of private international law, it is argued that its subject matter is only civil relations, that is, property and personal non-property (E. A. Sukhanov, V. F. Popondopulo).
· A number of researchers (L. P. Anufriyeva) consider the subject of private international law as consisting of two groups of relations – the traditional “triad” (civil, labor, family relations) and procedural relations (forming in international civil proceedings and international commercial arbitration).
Only those relations that are international in nature, complicated by a foreign element, fall within the scope of private international law . Another condition under which PIL begins to operate is the civil sphere.
Undoubtedly, a foreign element can be introduced into any area of social relations, and this gives rise to the need for additional legal regulation. For example, foreigners serving sentences in Russian penitentiary institutions, in addition to the rights enjoyed by convicted citizens of the Russian Federation, have the right to freely communicate with an interpreter. However, relations that lie outside the scope of a civilistic orientation are mediated not by the norms of PIL, but by the norms of international public law through the conclusion of relevant international treaties. When resolving legal issues regarding foreigners related to criminal justice, the problem of choosing a competent legal system does not arise – the main task in PIL.
The condition for the action of PIL is the entry of legal relations complicated by a foreign element into the civil domain. This area includes hereditary, family, tort, economic, copyright, patent, foreign economic and other civil law relations. It is impossible to name an exhaustive list of all areas covered by PIL. Scientific and technological progress and the development of international cooperation between states in the space, environmental, nuclear and other fields create objective prerequisites for expanding the scope of PIL. Moreover, rule-making is carried out both at the national and international levels.
So, the scope of PIL is the relations that develop in the civil “space” that goes beyond the jurisdiction of one state.
To date, there is no unity in the scientific world regarding the definition of the boundaries of the scope of PIL. Some scientists (K.A. Bekyashev, A.G. Khodakov) believe that PIL extends into the currency, financial, tax, and customs spheres, i.e. in the sphere of administrative-legal relations. Other scientists (N.Yu. Erpyleva, V.G. Khrabskov), on the contrary, narrow the scope of PIL, excluding marriage and family, labor relations, relations in the field of merchant shipping. Such a “discrepancy” testifies not only to the “taste” preferences of the authors, but also to an ambiguous assessment of the Russian legislation on PIL, which allows one to take such positions. This conclusion confirms, in particular, the presence of the title “Private International Law”, assigned only to Section VI of the Civil Code of the Russian Federation, while neither in the Family Code nor in the Merchant Shipping Code, which also have special sections containing the rules of private international law, this phrase not used.
PIL terminology page 13
The term “private international law” appeared in 1834 and became widely used from the time when the American lawyer D. Storey used it in his work “Comments on the Law of Conflict”. Conflict, i.e. conflict law is still considered in Western countries as PIL , and the substantive rules governing civil law relations with a foreign element are considered very limited within its framework. In contrast to PIL, Western legal science singles out international trade law, international commercial law, international economic law, etc.
Thus, the definition of PIL has been widely used since the second half of the 19th century. However, the development of legal regulation of civil law relations with a foreign element began to take shape long before that.
Some scholars already see the beginnings of PIL in Roman private law. Praetors in their decisions formed the rules applied to relations involving persons who were not citizens of the Roman Empire.
However, conflict regulation, the basis of PIL, appeared only in the 12th-13th centuries. The socio-economic prerequisites for this process were: the emergence of state-like entities (cities with self-government and other administratively separate territorial units); development of social, trade, economic and other exchanges between these cities and territories.
The essence of the theory of post-glossators is that all laws, statutes should be classified by type, each should have its own principle.
In ancient times, the rights of foreigners were not recognized at all. In the event of a dispute with a member of ancient Russia on the territory of Constantinople, it was resolved using customary law.
The concept of collision. Causes of collisions. Conflict of laws. The subject of MChP. MCHP method and methods of its implementation. Peculiarities of legal regulation of relations in PIL.