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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.

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Notes

  1. The 2010 Chinese PIL was adopted at the 17th Session of the Standing Committee of the 11th National People’s Congress of P. R. China on 28 October 2010 and came into force on 1 April 2011. This law consists of 8 chapters and has a total of 52 articles, which includes such chapters as general provisions, civil subjects, marriage and family, inheritance, real right, creditor’s rights, intellectual property rights and supplementary provisions. See Zhonghua Renmin Gongheguo Shewaia Minshi Guanxi Falv Shiyongfa [Law of the People’s Republic of China on Application of Law for Foreign-Related Civil Relations] (2010).

  2. In the official English version of the 2010 Chinese PIL, ‘jing chang ju suo’ in Chinese was translated into ‘habitual residence’, which is consistent with the term ‘habitual residence’ adopted in the conventions of the Hague Conference on Private International Law. The author was invited by the Law Committee of National People’s Congress of P. R. China to attend the expert seminar of the legislation issues on the Draft of 2010 Chinese PIL, which took place from 28 June to 2 July 2010. The experts who participated in this seminar basically agreed that ‘jing chang ju suo’ in the draft was in fact ‘habitual residence’.

  3. The 2012 Judicial Interpretation on 2010 Chinese PIL mainly aimed at making the explanation on the application of general provisions in the 2010 Chinese PIL. This judicial interpretation has come into force since 7 January 2013.

  4. See Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Shewai Minshi Guanxi Falv Shiyongfa Ruogan Wenti de Jieshi [Judicial Interpretation on 2010 Chinese PIL] (2012), Art. 15.

  5. See Zhonghua Renmin Gongheguo Minfa Tongze [General Principle of the Civil Law] (1986), Art. 13.

  6. See Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Minfatongze Ruogan Wenti de Yijian [Supreme People’s Court Opinions on Application of the General Principle of Civil Law of the People’s Republic of China] (1988), Art. 179, Art. 181.

  7. Du (2007a), p. 87.

  8. See Zhongguo guoji sifa xuehui [Chinese Society of Private International Law] (2000).

  9. Ibid., p. 16.

  10. The GRCL was adopted at the Fifth Session of the 12th National People’s Congress on 15 March 2017, and will come into force on 1 October 2017.

  11. Rogerson (2000), p. 101.

  12. Huang (2011), pp. 11–12.

  13. According to the statistics by the author, the habitual residence appeared 44 times totally in the 25 provisions of the 2010 Chinese PIL.

  14. See 2010 Chinese PIL, Arts. 11, 12, 13, 15 and 19.

  15. See 2010 Chinese PIL, Arts. 21, 23, 24, 25, 26, 28, 29 and 30.

  16. See 2010 Chinese PIL, Arts. 31, 32 and 33.

  17. See Opinion on the GPCL, Art. 9; see Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Minshi Susongfa Ruogan Wenti de Yijian [Supreme People’s Court Opinion on Civil Procedure Law of the People’s Republic of China] (1992) (Opinion on CPL), Art. 5.

  18. See Opinion on the GPCL, Art. 9; see Opinion on CPL, Arts. 4, 5.

  19. See Zhengque Chuli Shewai Minshi Anjian Qieshi Weihu Shehui Gonggong Liyi: Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Shewai Minshi Guanxi Falv Shiyongfa Ruogan Wenti de Jieshi Yi Da Jizhe Wen [To Resolve Foreign-Related Civil Disputes Correctly and Safeguard Public Interests: Supreme People’s Court Answers to Reporters’ Request on the Application of the First Interpretation of Several Issues Concerning the Implementation of the Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China], People’s Court Daily, 7 January 2013, p. 6.

  20. The 1980 Hague Convention on the Civil Aspects of International Child Abduction has established a highly efficient procedure to return the child who was illegally removed from his or her habitual residence. The main purposes of the 1980 Hague Convention is to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. Art. 3 of the Convention stipulates that the law of the child’s habitual residence is applied to determine whether the removal or the retention of the child is in breach of rights of custody or other rights attributed to a person, an institution or any other body. The removal or the retention of the child is illegal only if the above rights are violated. See Convention on Civil Aspects of International Child Abduction, The Hague, 25 October 1980, TIAS No. 11, 670, 1343 UNTS 89, Art. 3 (hereinafter referred to as Hague Child Abduction Convention).

  21. Symeonides (2008), p. 1798.

  22. Lamont (2007), pp. 261–263.

  23. Cavers (1971–1972), pp. 477–479.

  24. See Shah v. Barnet LBC [1990] 2 AC 578.

  25. See Nessa v. Chief Adjudication Officer and another [1999] 1 WLR 1937.

  26. See Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562.

  27. Nessa, supra n. 25.

  28. Rogerson (2000), p. 96.

  29. Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 (CA).

  30. Re B (A Minor) (Child Abduction: Habitual Residence) [1994] 2 FLR 915.

  31. Re LC (Children) (International Abduction: Child’s Objections to Return) [2014] UKSC 1.

  32. Ibid., para. 34.

  33. Ibid., para. 37.

  34. Cavers (1971–1972), p. 481.

  35. Sherrer v. Sherrer, 334 US 343 (1948).

  36. Cavers (1971–1972), pp. 490–491.

  37. Of course, Cavers criticized that the approach adopted by Federal Supreme Court of America might not prove persuasive as that of the English court does in the ascertainment of habitual residence. Cavers (1971–1972), p. 491.

  38. Gaudin v. Remis, 379 F.3d 631, 635–36 (9th Cir. 2004).

  39. Ibid., p. 637.

  40. Zohar (2009–2010), pp. 203–204.

  41. Friedrich v. Friedrich, 983 F. 2d 1396, 1401–1402 (6th Cir. 1993).

  42. Case C-90/97, Swaddling v. Adjudication Office [1999] ECR I-1075, para. 29.

  43. Ibid.

  44. Ibid., para. 30.

  45. Case C-111/17 PPU, OL v. PQ, ECLI:EU:C:2017:436.

  46. Kunda (2017).

  47. Case C-497/10 PPU, Barbara Mercredi v. Richard Chaffe [2010] ECR I-14309.

  48. The principle of the best interests of the child is a fundamental principle which is stipulated in Art. 3(1) of the 1990 United Nations Convention on the Rights of the Child.

  49. Pérez-Vera (1982), paras. 10–11, 35.

  50. Ibid., para. 12.

  51. Ibid., para. 13.

  52. Art. 12 of the Hague Abduction Convention: ‘The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.’

  53. See Dickson v. Dickson [1990] Sc. L. R. 692 (Sess.) (Scot.); Cooper v. Casey [1995] 18 Fam. L. R. 433 (Austl.); In re Bates (1989) CA 122/89, slip op. (High Ct. of Justice, Fam. Div., Royal Cts. of Justice) (UK).

  54. See Rochford v. Rochford, Maria Gabriela [Fallos] (1995-318-1269) (Arg.); Johnson v. Johnson [Supreme Administrative Court] 1996-05-09 (Swed.); Wilner, Eduardo Mario v. Osswald, Juvenile Court of Rome, 7 January 1999, no. 2450/98 E (Italy).

  55. Vivatvaraphol (2008–2009), pp. 3366–3369.

  56. Stone (2000), p. 359.

  57. See Art. 12 of the 1990 United Nations Convention on the Rights of the Child.

  58. Lamond (2007), p. 267.

  59. Stone (2000), p. 365.

  60. See Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 (CA); Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562; R. v. Barnet LBC Ex parte Shah [1983] 2 AC 309; Sherrer v. Sherrer, 334 US 343 (1948); Gaudin v. Remis, 379 F.3d 631 (9th Cir. 2004).

  61. In this case, Judge Scarman pointed out that a particular place where a natural person lives for a short or a long period of time through selective actions with the purpose for settling down shall be regarded as the habitual residence of that natural person. See R. v. Barnet LBC Ex parte Shah [1983] 2 AC 309.

  62. In this case, the court decided that according to the application of Regulation (EEC) No. 1408/71 of the Council of 14 June 1971 on the Application of Social Security Schemes to Employed Persons and their Families Moving within the Community [1971] OJ L 149/2-50, factors should be considered in determining habitual residence were length and continuity of residence, employment, family condition, immigration and other factors. The length of residence is just one of those factors and is not the overwhelming factor that affects the ascertainment of habitual residence. See Case C-90/97, Swaddling v. Adjudication Office [1999] ECR I-1075, para. 30.

  63. As the practice of ascertainment of habitual residence concerning contracting states to the Child Abduction Convention, See Vivatvaraphol (2008–2009), pp. 3366–3369.

  64. German scholar Gerhard Kegel simplified the categories of interests of private international law based on precedent studies, and further deemed that the factors should be taken into consideration which include interests of parties, interests of communication and interests of system. See Du (2007b), pp. 65–67. Also see Zou (2004), pp. 146–152.

  65. For example, as the spouses living in the third country have two different nationalities of their own, if, according to the related conflict rules of that third country, the validity of the marriage is determined by the law of the spouses’ nationality respectively, as a result, the marriage may be valid according to the law of the husband’s nationality and invalid according to the law of the wife’s nationality.

  66. Ballarino and Ubertazzi (2004), pp. 85–86.

  67. For the rules of freedom of movement in international and regional conventions, see Art. 13 of the 1948 Universal Declaration of Human Rights, Art. 12 of the 1966 International Convention on Civil Rights and Political Rights, Art. 5 of the Convention on the Elimination of All Forms of Racial Discrimination, Art. 2 of Protocol 4 of the European Convention on Human Rights and Art. 22 of the America Convention on Human Rights. For the rules of freedom of movement in domestic legislations, see Art. 11 of the German Constitution of Weimar, Art. 16 of the Constitution of Italy in 1947, Art. 22 of the Constitution of Japan in 1946. The establishment of the domestic freedom of movement of America took a long time. In 1776, the Declaration of Independence had a general rule of the freedom of movement. And the freedom of movement in America was established through judicial precedent of Supreme Federal Court of United States.

  68. Lamont (2007), pp. 264–265.

  69. Reed (1961–1962), p. 989.

  70. Ibid., p. 990.

  71. There is not only practical but also theoretic support for the idea that habitual residence is a legal concept rather than a purely factual concept. As the reporters of the 1970 Convention on the Recognition of Divorces and Legal Separations, Judge Pierre Boner of France and Professor Berthold Goldman of the University of Paris noted that ‘the questions of pure fact’ of habitual residence should be reduced to the minimum. See Cavers (1971–1972), p. 477.

  72. Lamond (2007), p. 268.

  73. Clive (1997), p. 141.

  74. The English court once lowered the requirement of the period of actual residence as much as possible in related cases. With enough settled intention, a period of actual residence of even 1 month can also be accepted. See Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 (CA).

  75. For example, Art. 20 of the Swiss Federal Code on Private International Law stipulates that habitual residence is a dwelling place of a certain period of residence without specifying the length of the period of actual residence.

  76. Han and Li (1991).

  77. Collins et al. (2006).

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  1. Professor of Private International Law and International Law, Law School, Zhongnan University of Economics and Law (ZUEL), Wuhan, China

    Renshan Liu

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This article is one of the periodic achievements of the author’s research projects Improvement of China’s Foreign-Related Civil Relations Law (No. 14ZDC032), sponsored by the Major Program Grant run administered by China’s National Social Science Fund, and Building a Community with a Shared Future for Mankind (CLS 2017 A02), supported by the Major Program Grant run by China Law Society.

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Liu, R. Determination of Habitual Residence in Chinese Private International Law: Lessons from Extraterritorial Experience. Neth Int Law Rev 65, 55–77 (2018). https://doi.org/10.1007/s40802-018-0103-z

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