A Comparative Research Of the Legislative Theory And Practice Of Private International Law Between the Two Sides Of Taiwan Strait

• Main Authors: Yeh,You-Yi, 葉祐逸
• Other Authors: Prof. Dr. Wang, J.W.
• Format: Others
• Language: zh-TW
• Published: 2008
• Online Access: http://ndltd.ncl.edu.tw/handle/77492574314877868673

博士 === 中國文化大學 === 中山學術研究所 === 97 === Till now, there is no separate code of private international law in Mainland China. Many scholars actively furthered the legislative action of private international law since several years ago. Thanks to their hard research, there are five drafts of private international law in Mainland Area. The five drafts include “The Model Law on the Private International Law of The People’s Republic of China”, “The Draft Green Civil Code”, “Legislative Proposal on the Private International Law of The People’s Republic of China”, “The Law on the Law Application of International Civil and Commercial Relations（Draft）”, and “The Draft Civil Code of The People’s Republic of China”. Many modern rules of choice of laws are in the five drafts. In particular, Book Nine “The Draft Civil Code of The People’s Republic of China” is exclusively official draft. The legislative process of “The Draft Civil Code of The People’s Republic of China” may be accomplished in 2008. In Taiwan, the separate code of private international law is “Law of Application of Law in Foreign Civil Relations”. It is also being amended since several years ago. The “Judicial Yuan” invited some scholars of private international law to organize a committee. The committee’s duty is to discuss drafts of “Law of Application of Law in Foreign Civil Relations”. Four official drafts relating to this law including “Original Draft”, “Primary Draft”, “First Draft”, and “Canvassed Draft”. The “Judicial Yuan” accomplished the draft amendment in July, 2008. Many modern rules of choice of laws are in the four drafts as well. This dissertation compared legislative amendments and searched for currently legislative theory of international private law between both sides. It also comes to conclusion that large amounts of “doctrine of the autonomy of the parties”, “theory of the most significant relationship” and “bilateral conflict rules“ are adopted. Furthermore, in the legislative process in Taiwan and Mainland China, we can find the best theory or rules of international private law by comparative research. The legal relationship theory between the two sides of Taiwan Strait is also included in “private international law”. Therefore, this dissertation will advance the draft amendment of Chapter Ⅲ“Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area” after discussing correlative drafts of private international law in Taiwan and Mainland China. Since Chapter Ⅲ“Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area” is the rule of application of law between the two sides of Taiwan Strait, it has to refer to the drafts of private international law.