Netherlands International Law Review

, Volume 65, Issue 1, pp 55–77 | Cite as

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

  • Renshan Liu


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.


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


  1. Ballarino T, Ubertazzi B (2004) On avello and other judgments: a new point of departure in the conflict of laws? Yearb Priv Int Law 6:85–128Google Scholar
  2. Cavers D (1971–1972) Habitual residence: a useful concept? Am Univ Law Rev 21:475–493Google Scholar
  3. Clive E (1997) The concept of habitual residence. The Juridical Review 137–147Google Scholar
  4. Collins L et al (2006) Dicey, Morris & Collins, the conflict of laws. Sweet & Maxwell, LondonGoogle Scholar
  5. Du H (2007a) Lun Guanchang Jusuo di Fa Jiqi Zai Zhongguo de Shiyong [A study on the law of habitual residence and its application in China]. Zhengfa Luncong [J Political Sci Law] 5:82–85Google Scholar
  6. Du T (2007b) Liyi Faxue yu Guoji Sifa de Weiji he Geming-Deguo Guoji Sifa Yidai Zongshi Gerhard Kegel de Shengping yu Xueshuo [The crisis and revolution of the jurisprudence of interests and Private International Law: the life and teachings of professor Gerhard Kegel who is a master of German International Law]. Huanqiu Falv Pinglun [Glob Law Rev] 6:63–74Google Scholar
  7. Han D, Li S (1991) Guoji Sifa Jiaoxue Cankao Ziliao Xuan Bian [Select reference and materials on Private International Law: Part I]. Wuhan University Press, WuhanGoogle Scholar
  8. Huang J (2011) Zhongguo Shewai Minshi Guanxi Falv Shiyongfa de Zhiding yu Wanshan [Enactment and improvement of the law of the People’s Republic of China on application of law for foreign-related civil relations]. Zhengfa Luntan [Tribune Political Sci Law] 3:3–12Google Scholar
  9. Kunda I (2017) CJEU rules that child’s physical presence is a necessary condition for habitual residence. Accessed 20 Nov 2017
  10. Lamont R (2007) Habitual residence and Brussels II bis: developing concepts for European private international family Law. J Priv Int Law 3:261–281CrossRefGoogle Scholar
  11. Pérez-Vera E (1982) Explanatory report on the Hague Child Abduction Convention. Accessed 20 Nov 2017
  12. Reed G (1961–1962) Domicile and nationality in comparative conflict of laws. Univ Pitt Law Rev 23:979–992Google Scholar
  13. Rogerson P (2000) Habitual residence: the new domicile? Int Comp Law Q 49:86–107CrossRefGoogle Scholar
  14. Stone P (2000) The concept of habitual residence in private international law. Anglo-Am Law Rev 29:342–367Google Scholar
  15. Symeonides SC (2008) The American revolution and the European evolution in choice of law: reciprocal lessons. Tulane Law Rev 82:1741–1799Google Scholar
  16. Vivatvaraphol T (2008–2009) Back to basic: determining a child’s habitual residence in international child abduction cases under the Hague Convention. Fordham Law Rev 77:3325–3369Google Scholar
  17. Zhongguo guoji sifa xuehui [Chinese Society of Private International Law] (2000) Zhonghua Renming Gongheguo Guoji Sifa Shifanfa [The Model Law of Private International Law of the People’s Republic of China]. Law Press, BeijingGoogle Scholar
  18. Zohar G (2009–2010) Habitual residence: an alternative to the common law concept of domicile? Whittier J Child Family Advocacy 9:169–204Google Scholar
  19. Zou G (2004) Kegel he Ta de Guoji Sifa Liyilun [Gerhard Kegel and his interest theory of Private International Law]. Bijiaofa Yanjiu [J Comp Law] 5:145–155Google Scholar

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

Personalised recommendations