Determination of Habitual Residence in Chinese Private International Law: Lessons from Extraterritorial Experience

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Abstract

In the 2010 Chinese PIL, habitual residence was recognised as a primary connecting factor of lex personalis, and the law of habitual residence has also become an important principle of choice of law in Chinese PIL. However, the concept of habitual residence is not defined in the 2010 Chinese PIL. In order to facilitate the determination of habitual residence, Article 15 of the 2012 Judicial Interpretation on 2010 Chinese PIL clarifies the concept of habitual residence. Nevertheless, the application of Article 15 in that judicial interpretation not only may lead to rigid and mechanical outcomes, but also result in inability to meet the need of protecting the interests of the child. Therefore, it is necessary to endow judges with discretion in the determination of a person’s habitual residence. It can be seen from the extraterritorial practice that the discretion of judges is not unrestricted. The judges should take a natural person’s centre of life and interests at the starting position, and consider the interests of equality, interests of communication and interests of efficiency of PIL as a whole in the exercise of this discretion. In particular, a natural person’s centre of gravity of pre-existing interests should be regarded as a main thread by the judges during the process of ascertaining habitual residence. In conclusion, the doctrine of a natural person’s centre of gravity of pre-existing interests provides important practical value for the ascertainment of the habitual residence in Chinese PIL.

Keywords

Lex personalis Habitual residence Domicile Nationality Chinese private international law Centre of gravity of pre-existing interests 

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Copyright information

© T.M.C. Asser Press 2018

Authors and Affiliations

  1. 1.Professor of Private International Law and International Law, Law SchoolZhongnan University of Economics and Law (ZUEL)WuhanChina

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