Enlightenment of Japan's Private International Law Legislation to China

• Author: Guangjie Zhang
• Position: Ph.D., Lecturer, East China University of Political Science and Law
• Pages: 91-111

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Enlightenment of Japan’s Private International Law Legislation to China

Guangjie Zhang1

Abstract: From Horei to Act on the General Rules of Application of Laws, the revision of

Japan’s private international law fully reflects the fact that Japan’s private international law legislation

draws on the concept of extraterritorial legislation based on its own national conditions taking into

account the characteristics of internationalization and localization. By analyzing and sorting out the

internationalization and localization of Japanese private international law legislation, insight into the

coordination of internationalization and localization has promoted the development of Japanese private

international law, such as: stipulating norms of interpersonal conflicts; introducing mandatory norms;

recognizing the effectiveness of the compulsory norms of the host country in the most closely

connected places, which leaves room for the introduction of the compulsory norms of the affiliated

country of the foreign applicable law and the compulsory norms of the third country; and pursuing the

flexibility of the closest relationship principle. This modern legislative process can provide useful

experience and reference for the improvement of China’s private international law legisla tion.2

Key words: Japan’s Private International Law Legislation; Horei; Act on the General Rules of

Application of Laws; Localization; Internationalization; Norms of Interpersonal Conflict.

Since 1980, with the economic glob alization and the increase of international civil and

commercial exchanges, international civil and commercial rules have shown a trend of unification and

international private laws of various countries in the world have been integrated in many aspects, such

as their manifestations and legislative methods.3 As the mutual influence among the legal systems of

various countries deepen, each country’s private international law legislation will take into account its

own national conditions, reasonably draw on and absorb the experience of other countries’ legal

systems, and reflect the characteristics of internationalization and localization of private international

law legislation. As we all know, Japan is good at learning from the strengths of other countries. During

the Meiji Restoration period, under the guidance of the idea of “departing from Asia for Europe,”

Japan fully inherited German law and French law in the legal field. After World War II, Japan

inherited American law in the Constitution and other branches of laws. Since modern times, Japanese

law has largely inherited the laws of European and American countries, forming a unique modern legal

system4 which can be affirmed by the path taken by Japan’s private international law legislation.5 This

unique form of legislation is what we have to learn and learn from, which has enlightening

significance for the legislative improvement and judicial practice of private international law in China.

1. The Internationalization of Japan’s Private International Law Legislation

Japa nese aca demic an d practi cal circles h ave been stud ying, ab sorbing , and transfo rming

1 Guangjie Zhang, Ph.D., Lecturer, East China University of Political Science and Law.

2 Japan has undergone seven major revisions during the modernization of private international law, including the Act

on the General Rules of Application of Laws.

3 See Xiaohong Liu, Forty years of China’s private international law legislation: system, concept and direction, 43

Legal Science 3, 10-1 (2018).

4 See Xia Hua & Lixin Zhao, Legal succession and legal cultural changes in Japan, China University of Political

Science and Law Press, pp.163-200 (2005).

5 Japanese private international law legislation refers to seven revisions from Japan’s Horei to Act on the General Rules

of Application of Laws.

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advanced theories and systems of foreign private international law, which manifests the

internationalization of Japanese private international law legislation. In addition, the broad discussions

caused by controversies over “universalism”6 and “particularism”,7 “justice conflict” and “substantive

justice” in the academic development of private international law in Japan have also

profoundly affected the process of internationalization of Japanese private international law legislation.

(a) The Influence of Particularism and Universalism on Japanese Private

International Law

　　In the 19th century, the European and American scholars of private international law developed

two schools of thoughts: particularism and universalism. Supporters of particularism believe that

private international law belongs to domestic law, and the rules of private international law of each

country can be determined independently according to the principle of state sovereignty, and an

unequal attitude shall be taken towards the application of domestic law and foreign law.8 The

supporters of universalism use the transcendental theory of private international law to solve legal

conflicts, deduce the principles of private international law from natural law, and hold that there is a

system of private international law that is uniformly applicable to all countries in the world.9

Supporters of universalism believe that the rule of law should reflect the spirit of universalism,

and countries can apply uniform conflict norms. However, in the process of its development, the

conflict of laws of each country provides different or even contradictory rules, which affects the

function of conflict law to solve the civil and commercial legal conflicts of each country.

Therefore, some scholars believe that we should strive for the highest value of conflict law,10

which can only be realized by adhering to the universalist theory.11 Under the initiative of

moncini and others, the movement of unifying conflict laws arose in Europe. There are obvious

differences and conflicts between particularism and universalism, but the supporters of the two

theories keep seeking balance through the process of mutual compromise. While supporters of

particularism hold that private international law is only domestic law, they also see that without proper

coordination, legal conflicts will never be truly resolved. Therefore, many of them believe that the

task of private international law should be to coordinate the legal systems of different

countries and the basis of such coordination is that when each country determines its own

jurisdiction, it should take the jurisdiction and laws of other countries into consideration. In this

way, particularism also has the element of universalism.12 The supporters of universalism find

their views inconsistent with the practice of international exchanges and it is impossible to

solve all conflicts of law universally and consistently. They also believe that states have the right to

6 Universalism, also called internationalism,and the scholars who hold this view are called “universalism-

internationalism school”. Representatives of this school include Savigny and Von Bar from Germany, Weiss from

France, Mancini from Italy and Jitta from the Netherlands. See Shuangyuan Li, Private International Law, Peking

University Press, pp.25-6 (2006).

7 Particularism, also known as nationalism, and the scholars who hold this view are called "particularism -

nationalism school". The representatives of this school include Franz Kahn, Wolff, Bartin, Niboyet, Dicey,

Cheshire, Cook and Lorenzen. See supra note 6, at p.26.

8 See Shuangyuan Li, Direction of Research on China’s Private International Law, 2 Law and Social Development

58, 61 (1996).

9 See supra note 8, at p.60.

10 The initial highest value of conflict of laws is the balance between predictability and operability. The earliest

conflict of laws pursued predictability and operability, enabling all countries to resolve foreign-related legal

disputes by a common conflict rule. Now it pays more attention to fairness, making the highest value a balance

between the fair value of operability and predictability.

11 See Juan Shen, Conflict of Laws and its Value Orientation (revised), China University of Political Science and

Law Press, p.78 (2002).

12 See Donggen Xu, Trend of Private International Law, Peking University press, pp.284-5 (2005).