台湾国际私法法典化.pptVIP

台湾近代的国际私法法典化 报告人：葛仲彰 Introduction Historical development Statute on Application of Laws (1918) Act on Application of Laws in Civil Matters Involving Foreign Elements(1953) Act Governing the Application of Laws in Civil Matters Involving Foreign Elements (2011) General methodology Legal Certainty and Flexibility In the Act of 1953, the law tended to the legal certainty; on the other hand, the law provided for some flexibility exceptions. In the Act of 2011, the law still sticks to the principle that the legal certainty should prevail. However, the flexibility exceptions are extended. General methodology Issue-by-Issue Choice and Dépe?age In Taiwan, the causes of action are not categorized by the classification of cases but depend on the specific claims the plaintiff argues in the case . it is possible that the plaintiff can bring two or more actions concerning different issues related to the same event . dépe?age is inevitable when the case encompasses two or more legal relationships General methodology Conflicts Justice versus Material Justice The Act of 1953 basically adheres to the legislative policy of conflicts justice. Meanwhile, the exceptions which serve material justice do exist. Though the conflicts justice is still adhered to in the legislative policy, the material justice has a more important role to play in the Act of 2011 . General methodology Unilateral Rules and Rules of Immediate Application There is no provision for rules of immediate application in the Act on Application of Laws (of 1953 or of 2011). The Act of 1953 basically adopts the legislative model of bilateral rules while some unilateral rules are included as exceptions when an alien’s capacity is concerned. General methodology International Uniformity and Protection of National Interests The main objective of the legislation is to keep the courts’ decisions in line with international trends in Taiwan. However, the domestic interests should prevail when they confli