International private law in the legal system. International private law

Question 1. The concept of private international law.

AT the scope of PIL includes private law relations complicated by a foreign element. The term "private law relations" means relations that within each state are regulated by the norms of various branches of private law:

1) civil law relations that are regulated by the norms of the Civil Code (i.e. property and personal non-property relations);

2) family and marriage;

3) labor relations, which are also property and related personal non-property relations.

Foreign e-you are divided into three main groups depending:

1) from the subject, i.e. when the participants in legal relations are individuals. and legal persons of different states (intergovernmental, international organizations, states can act);

2) an object, that is, legal relations arise in connection with property located abroad;

3) legal the fact, as a result of which private law relations arise, change or terminate in the event that the jur. the fact takes place abroad.

In a particular legal relationship, a foreign element can be present in any combination, i.e. they can be in one group, or in two or even three.

For example, section 6 of the Civil Code of the Russian Federation proceeds from the following understanding of the subject of PIL: for example, in accordance with Art. 1186 of the Civil Code of the Russian Federation, which names two groups of foreign elements - the subject and the object, other foreign elements originally include legal facts. In Art. 1209 of the Civil Code of the Russian Federation refers to the form of transactions made abroad, which is an example of legal. fact. Considered legal relationship:

1) are private law;

2) complicated by a foreign element. The factor of the presence of a foreign element connects private law relations not only with different states, but also with the law of different states, and only the simultaneous presence of these two signs will make it possible to single out from the whole range of social relations the circle of relations that constitute the subject of PIL regulation.

Thus, the subject of PIL is private law relations complicated by a foreign element.

PIL- an independent branch of Russian law, which is a system of conflict (internal and contractual) and unified substantive private law rules that regulate private law relations by overcoming the conflict of law of various states.

Question 2. The composition of the norms of private international law.

The composition of the PIL rules includes, first of all, conflict rules that determine the law to be applied. PIL deals with collisions of a special kind:

Intertemporal collisions - their content is the result of the action of laws in time.

Interpersonal collisions - based on the belonging of a physical. persons to a certain nationality, religion, etc.

Spatial legal conflicts are subdivided (from the position of MCHP) into conflicts of laws of different states(“international”, “international”) and conflicts of laws of intrastate formations(members of the federation) the same state(“internal”, “interregional”). The study of the question of whether the solution of spatial legal conflicts - "international" and "internal" - is subject to the same general principles or each type of conflicts corresponds to special rules for their regulation, allows us to conclude that the states' approaches to this problem do not coincide.

In the domestic doctrine, PIL is often studied as an area of ​​law, covering not only conflict of laws, but also substantive legal prescriptions. The latter, unlike conflict rules, determine the behavior of the parties, the content of their rights and obligations. The rules of this kind included in the PIL include the unified substantive norms of international treaties of the Russian Federation implemented in the sphere of private law relations complicated by a foreign element, as well as the norms of domestic legislation on the legal status in this area of ​​subjects of foreign law and customs recognized in RF.

An increase in the volume of unified conflict and substantive rules expands the scope of uniform PIL rules.

Two types of legal norms correspond to two ways of legal regulation. Collision method involves first solving the conflict problem, determining the applicable law, and only then, on its basis, regulating the behavior of the parties. Substantive the method allows you to regulate the behavior of the parties by directly establishing the rights and obligations of the participants in the relationship.

Question 3. Place of private international law in the system of law.

In the question of the place of PIL in the legal system, one can single out three main approaches:

1. PIL refers to the system of international law - international legal concept.

2. PIL is included in the system of internal law of the state - civil concept.

3. PIL is an intersystem complex, which partly relates to public international law, and also partly to domestic law, such a concept is called systemic.

Findings:

1. PIL is closely connected with both public international law and the national law of the state, primarily with branches of private law.

2. Despite the close connection with international public law, PIL is included in the system of internal national law of the state. This conclusion is rigidly predetermined by the subject of legal regulation, namely private law relations complicated by a foreign element. PIL regulates relations between such entities (individuals and legal entities) that are under the jurisdiction of the state-va and, therefore, under the influence of its internal law. However, the mechanism of international legal regulation is not adapted to regulate relations between physical. and legal persons.

3. In the system of domestic law, PIL is not part of the civil, family, labor and other branches of law, it occupies an independent place, is an independent branch of law with its own specific subject and method of regulation, since civil, labor and other private law relations constitute a single subject MChP.

4. Contrary to the name, PIL has a national nature, in contrast to international public law, which is common for all states, PIL exists within the framework of the national law of an individual state.

• The concept and system of international private law
  • The concept and subject of private international law
  • The place of international private law in the system of law, its basic principles
  • Normative structure of private international law
  • Methods of regulation in private international law
  • Unification and harmonization of norms of private international law; the role of international organizations in its development
• Sources of private international law
  • The concept and specifics of the sources of international private law
  • National law as a source of private international law
  • International law as a source of private international law
  • Judicial and Arbitration Practice as a Source of International Private Law
  • Doctrine of law, analogy of law and law, general principles of law of civilized peoples as a source of private international law
  • Autonomy of the will of the subjects of legal relations as a source of private international law
• Conflict law - the central part and subsystem of private international law
  • Basic principles of conflict of laws
  • Collision norm, its structure and features
  • Types of conflict rules
  • Interlocal, interpersonal and intertemporal law
    • interpersonal law
    • Intertemporal law
  • Main types of collision bindings
    • Law of nationality (personal law) of a legal entity
    • The law of the location of a thing
    • Law of the country of the seller
    • Law of the place of the act
    • Law of place of offense
    • Debt currency law
    • court law
    • The law chosen by the parties of the legal relationship (autonomy of will, the right to choose the law by the parties, a clause on the applicable law)
  • Modern problems of conflict of law
  • Qualification of the conflict rule, its interpretation and application
  • Limits of application and effect of conflict rules
  • The theory of references in private international law
  • Establishing the content of foreign law
• Subjects of private international law
  • The position of individuals in private international law; determination of their civil legal capacity
  • Civil capacity of natural persons in private international law
  • Guardianship and guardianship in private international law
  • Legal status of legal entities in private international law
  • Specifics of the legal status of transnational companies
  • Legal status of foreign legal entities in the Russian Federation and Russian legal entities abroad
  • The legal status of the state as a subject of private international law
  • The main types of civil legal relations with the participation of the state
  • International Intergovernmental Organizations as Subjects of Private International Law
• Property law in private international law
  • Conflict of ownership issues
  • Legal regulation of foreign investments
  • Legal status of foreign investments in free economic zones
  • Legal status of property of the Russian Federation and Russian individuals abroad
• Law of foreign economic transactions
  • General provisions
  • Conflict issues of foreign economic transactions
  • Scope of the obligation status for foreign economic transactions
  • Form and procedure for signing transactions
  • International legal unification of the law of foreign economic transactions
  • International trade custom
  • The "lex mercatoria" theory and non-state regulation of foreign economic transactions
  • Contract of sale
  • Obligations of the parties in the contract for the international sale of goods
  • Contract for the exclusive sale of goods
  • franchise agreement
  • Leasing agreement
• International transport law
  • General provisions of international transport law
  • International rail transport
  • Legal relations in the field of international rail transport
  • International road transport
  • Legal relations in the field of international road transport
  • International air transportation
  • Legal relations in the field of international air transportation
  • Air transportation on attracted vessels
  • International shipping
  • Relationships associated with the risk of navigation
  • Legislation of the Russian Federation in the field of merchant shipping and navigation
• International private monetary law
  • The concept of "International private monetary law". financial leasing
  • Factoring agreement
  • International payments, currency and credit relations
    • International payments
  • Forms of international payments
  • International settlements using a bill of exchange
  • International payments using a check
  • Legal specifics of monetary obligations
• Intellectual Property in Private International Law
  • The concept and features of intellectual property
  • Specifics of Copyright in Private International Law
  • International copyright and related rights protection
  • Specifics of industrial property law in private international law
  • International and national regulation of invention law
• Marriage and family relations in private international law (international family law)
  • The main problems of marriage and family relations with a foreign element
  • Marriages
  • Divorce
  • Legal relationship between spouses
  • Legal relationship between parents and children
  • Adoption (adoption), custody and guardianship of children
• Inheritance legal relations in private international law (international inheritance law)
  • The main problems in the field of inheritance relations complicated by a foreign element
  • Legal regulation of inheritance relations with a foreign element
  • Inheritance rights of foreigners in the Russian Federation and Russian citizens abroad
  • The mode of "escheat" property in private international law
• International private labor law
  • Conflict problems of international labor relations
  • Labor relations with a foreign element under the legislation of the Russian Federation
  • Accidents at work and "crippled" cases
• Obligations from torts in private international law (international tort law)
  • The main problems of obligations from offenses (torts)
  • Foreign doctrine and practice of tort obligations
  • Tort Liabilities with a Foreign Element in the Russian Federation
  • Uniform international legal norms of tort obligations
• International civil process
  • The concept of international civil process
  • The principle of "law of the court" in international civil proceedings
    • The "law of the court" principle in international civil litigation - page 2
  • National legislation as a source of international civil process
  • International treaty as a source of international civil process
  • Auxiliary sources of international civil process
    • Auxiliary sources of international civil procedure - page 2
• Litigation of civil cases with a foreign element
  • General principles of the procedural position of foreign persons in civil proceedings
  • Civil procedural law and legal capacity of foreign persons
    • Civil procedural law and legal capacity of foreign persons - page 2
  • Legal status of a foreign state in international civil proceedings
  • International jurisdiction
  • International jurisdiction in national law
    • International jurisdiction in national law - page 2
  • International jurisdiction in international agreements
  • The presence of a process in the same case between the same parties in a foreign court as a basis for leaving the claim without consideration
  • Establishing the content of foreign law, its application and interpretation
    • Establishing the content of foreign law, its application and interpretation - page 2
  • Judicial Evidence in International Civil Procedure
  • Execution of foreign letters of request in national law
  • Execution of foreign letters of request in accordance with international treaties
  • Recognition and enforcement of foreign judgments
  • Recognition and enforcement of foreign judgments in national law
    • Recognition and enforcement of foreign judgments in national law - page 2
  • Recognition and enforcement of foreign judgments in international agreements
  • Notarial acts in private international law and international civil procedure
• International commercial arbitration
  • Legal Nature of International Commercial Arbitration
  • Types of International Commercial Arbitration
  • Law Applicable by Arbitration
  • Arbitration Agreement
  • The nature, form and content of the arbitration agreement; its procedural and legal consequences
    • The nature, form and content of the arbitration agreement; its procedural and legal consequences - page 2
  • Recognition and enforcement of foreign arbitral awards
  • International commercial arbitration abroad
  • International commercial arbitration in the Russian Federation
  • International legal basis for the activities of arbitration courts
  • Consideration of investment disputes

The place of international private law in the system of law, its basic principles

PIL occupies a special place in the global legal system. Its main specificity lies in the fact that PIL is a branch of national law, one of the private law branches of the law of any state (Russian PIL, French PIL, etc.). It is included in the system of national private law along with civil, commercial, commercial, family and labor law.

The term "international" here has a completely different character than in public international law - it means only one thing: there is a foreign element in a civil legal relationship (it does not matter, one or more, and which version of the foreign element). However, PIL is a very specific subsystem of the national law of individual states. The relationship between private international law and other branches of national private law can be defined as follows:

The subjects of national private law are individuals and legal entities; States acting as entities of private law. This also applies to private international law. Its subjects may also be international intergovernmental organizations acting as entities of private law. All foreign persons (individuals and legal entities, a foreign state), enterprises with foreign investments, transnational corporations, international legal entities are exclusively PPP subjects.

The object of regulation of national private law is

non-state civil (in the broadest sense of the word) legal relations. The object of regulation can also be diagonal (state-non-state) relations of a civil law nature. In private international law, these relations are necessarily burdened with a foreign element.

The method of regulation in national private law is the method of decentralization and autonomy of the will of the parties. The method of its implementation is the application of substantive legal norms. This also applies to PIL, but here the main way to implement the general method of decentralization is the method of overcoming conflicts - the application of conflict rules.

The sources of national private law are national legislation (primarily); international law (which is included in the national legal system of most states of the world); jurisprudence and doctrine; analogy between law and law. The list of sources of international private law should be supplemented by the autonomy of the will of the parties.

The scope of national private law is the national territory of a given state. This also applies to private international law, but the existence of a regional PIL (European, Latin American) and the process of forming a universal PIL should be emphasized.

Liability in national private law (including international law) has a civil law (contractual or tort) character.

The special nature and paradoxical nature of the PIL norms are already expressed in the very term - “domestic (national) international private law”. At first glance, the terminology itself produces an absurd impression: there cannot be a branch of law that is both domestic (national),

and international. In fact, there is nothing absurd here - we are simply talking about a legal system designed to directly regulate international relations of a non-state nature (arising in private life). The paradoxical nature of PIL norms is also expressed in the fact that one of its main sources is directly international public law, which plays an extremely important role in the formation of national PIL.

It is customary to talk about the dual nature of the norms and sources of private international law. Indeed, this is perhaps the only branch of national law in which international public law acts as a direct source and has direct effect. That is why the definition “hybrid in jurisprudence” is quite applicable to PIL.

The ratio of international public and international private law is as follows:

The subjects of international public law are, first of all, states. The international legal personality of all other entities (international organizations; nations fighting for independence; state-like entities; individuals and legal entities) is secondary and derived from the legal personality of the state. All these persons appear in international communication precisely as persons of public law. The list of subjects of international private law is exactly the same, but the main subjects of PIL are individuals and legal entities; States and international organizations (as well as other international entities) act in PIL as persons of private law.

The object of regulation of international public law is interstate (power) relations. The object of PIL regulation is private law (non-powerful) relations complicated by a foreign element.

The method of regulation in international public law has a coordinating, conciliatory character. This is a method of coordinating the wills of states; method of centralization and coordinated state regulations. The main methods of PIL are decentralization and autonomy of will, carried out by overcoming conflicts.

The sources of international public law are strictly international in nature - these are international treaties and customs, general principles of the law of civilized peoples, resolutions and recommendations of international organizations, acts of international conferences. The main source of international public law is an international treaty. The main source of PIL is national legislation, since PIL is a branch of national law.

The scope of public international law is global in nature: there is universal (general) international law, local and regional international law. PIL has primarily a national scope - each state has its own private international law.

Responsibility in public international law has an international legal character and is primarily the responsibility of states. Liability in PIL is civil liability.

The main (general) principles of private international law can be considered as defined in Art. 38 of the Statute of the International Court of Justice "general principles of law inherent in civilized nations." General principles of law are generally recognized legal postulates, methods of legal technique, "legal maxims" developed by the lawyers of Ancient Rome. The general principles of law directly applied in PIL are that you cannot transfer more rights to another than you yourself have; principles of justice and good conscience; principles of non-abuse of rights and protection of acquired rights, etc.

By "civilized nations" are meant those states whose legal systems are based on the adopted Roman law. The main general principle of international private law (as well as national civil and international public) is the principle "the contract must be fulfilled" (contracts must be respected).

General principles of law should be distinguished from the basic (generally recognized) principles of modern public international law. General principles of law in public international law are one of its main sources, a form of existence of legal norms.

The system of basic principles of modern international law is one of its branches. The sources of certain basic principles of international law (for example, the principle of conscientious fulfillment of international obligations) are the general principles of the law of civilized peoples (the principle of conscientious fulfillment of treaties).

The basic principles of international law are its cogent, super-imperative norms. In accordance with Art. 15 of the Constitution of the Russian Federation, the generally recognized principles and norms of international law are part of the legal system of the Russian Federation. Based on this legal position, it can be argued that the basic principles of international law are one of the sources of Russian PIL.

Special principles of private international law:

The autonomy of the will of the participants in the legal relationship is the main special principle of PIL (as well as any other branch of national private law). The autonomy of the will underlies all private law in general (the principle of freedom of contract; the freedom to have subjective rights or to refuse them; the freedom to apply to public authorities for their protection or to suffer violations of one's rights).

The principle of granting certain regimes: national, special (preferential or negative) most favored nation treatment. National and special regimes are mainly granted to foreign individuals; most favored nation treatment - to foreign legal entities (although this provision is not mandatory, and legal entities can enjoy the national treatment, and individuals - the most favored nation treatment). Preferential (especially preferential treatment) is provided to both individuals (residents of the border areas) and legal entities (the largest foreign investors).

The principle of reciprocity. In private international law, there are two types of reciprocity - material and conflict. Problems of conflict reciprocity (or reciprocity in the broad sense of the word) are related to conflict law and will be discussed below. Material reciprocity, in turn, is divided into material reciprocity itself (granting foreign persons the same amount of specific rights and powers that national persons enjoy in the corresponding foreign state) and formal (foreign persons are granted all rights and powers arising from local legislation).

As a general rule, it is formal reciprocity that is granted, but in certain areas - copyright and invention right, avoidance of double taxation - it is customary to provide material reciprocity.

The principle of non-discrimination. Discrimination is a violation or restriction of the legitimate rights and interests of foreign persons in the territory of a state. The universally recognized norm of private international law of all states is the absolute inadmissibility of discrimination in private law relations. Each state has the right to demand from another state the creation for its national persons of the same conditions enjoyed by the persons of other states, i.e. conditions that are common and the same for all.

The right to retort. Retortions are lawful retaliatory measures (restrictions) of one state against another, if the legitimate rights and interests of individuals and legal entities of the first state are violated on its territory. The goal of retortions is to achieve the abolition of discriminatory policies.

PIL occupies a special place in the global legal system. Its main specificity lies in the fact that PIL is a branch of national law, one of the private law branches of the law of any state (Russian PIL, French PIL, etc.). It is included in the system of national private law along with civil, commercial, commercial, family and labor law. The term “international” here has a completely different character than in public international law, ~ it means only one thing: there is a foreign element in a civil legal relationship (it does not matter, one or more, and which version of the foreign element). However, PIL is a very specific subsystem of the national law of individual states. The relationship between private international law and other branches of national private law can be defined as follows:

1. The subjects of national private law are individuals and legal entities; States acting as entities of private law. This also applies to private international law. Its subjects may also be international intergovernmental organizations acting as entities of private law. All foreign persons (individuals and legal entities, a foreign state), enterprises with foreign investments, transnational corporations, international legal entities are exclusively PPP subjects.

2. Non-state civil (in the broad sense of the word) legal relations are the object of regulation of national private law. The object of regulation can also be diagonal (state-non-state) relations of a civil law nature. In private international law, these relations are necessarily burdened with a foreign element.

3. The method of regulation in national private law is the method of decentralization and autonomy of the will of the parties. The method of its implementation is the application of substantive legal norms. This also applies to PIL, but here the main way to implement the general method of decentralization is the method of overcoming conflicts - the application of conflict rules.

4. The sources of national private law are national legislation (primarily); international law (which is included in the national legal system of most states of the world); jurisprudence and doctrine; analogy between law and law. The list of sources of international private law should be supplemented by the autonomy of the will of the parties.

5. The scope of national private law is the national territory of the given state. This also applies to private international law, but the existence of a regional PIL (European, Latin American) and the process of forming a universal PIL should be emphasized.

6. Responsibility in national private law (including international law) has a civil law (contractual or tort) character.

7. The special nature and paradoxical nature of the norms of PIL are already expressed in the very term - "domestic (national) private international law". At first glance, the terminology itself produces an absurd impression: there cannot be a branch of law that is both domestic (national) and international. In fact, there is nothing absurd here - we are simply talking about a legal system designed to directly regulate international relations of a non-state nature (arising in private life). The paradoxical nature of the PIL norms is also expressed in the fact that one of its main sources is directly public international law, which plays an extremely important role in the formation of the national PIL. It is customary to talk about the dual nature of the norms and sources of private international law. Indeed, this is perhaps the only ",;" / branch of national law in which public international law acts as a direct source and has direct effect. That is why the definition “hybrid in jurisprudence” is quite applicable to PIL.

The problem of constructing the PIL system.

The PIL system is similar to the civil law system. It consists of General and Special parts.

The general part includes:

Definitions of the basic concepts of this legal discipline (concept, subject, history of the development of PIL);

Composition and characteristics of PIL sources;

The doctrine of conflict rules (the concept, types, structure of conflict rules, types of conflict bindings, as well as problems associated with the application of conflict rules: reciprocity, qualification, mandatory rules in PIL, circumvention of the law, references, public policy clause, establishing the content of a foreign law );

The legal status of PIL subjects (individuals or legal entities participating in civil law relations with a foreign element).

The Special Part studies the legal regulation of certain types of relations with a foreign element:

Relations on the right of ownership and other property rights with a foreign element (conflict issues of property rights, protection of cultural property, inheritance with a foreign element);

Foreign investment (investment regime, guarantees to foreign investors, mechanisms for investment insurance and settlement of investment disputes);

Transactions with a foreign element and foreign economic transactions (purchase and sale, settlements, transportation, insurance, agency agreements);

Relations on intellectual property with a foreign element (protection of copyrights and industrial property rights of foreigners in the Russian Federation, as well as protection of such rights of citizens of the Russian Federation abroad);

Marriage and family relations with a foreign element (marriage and divorce, international adoption, maintenance obligations);

Liabilities due to harm;

International civil procedure (legal status of foreigners in courts, international jurisdiction, legalization of foreign official documents, recognition and enforcement of foreign judgments);

International commercial arbitration (alternative ways of resolving disputes on civil law relations with a foreign element).

The dualism of the sources of MCHP.

Types of PIL sources: 1) international treaties (this is an agreement regulated by international law, concluded by states and / or other subjects of international law); 2) domestic legislation; 3) judicial and arbitration practice (court decisions that have a law-making nature, i.e. formulating new rules of law); 4) customs (this is a rule that has developed over a fairly long period of time, it is generally recognized). The doctrine stated that the main feature of the PIL sources is their dual nature. On the one hand, the sources are international treaties and international customs, and on the other hand, the norms of legislation and judicial practice of individual states and the customs applied in them in the field of trade and navigation. In the first case, we mean international regulation (in the sense that the same norms operate in two or more states), and in the second, domestic regulation. The duality of sources does not mean the possibility of dividing MCHP into two parts; the subject of regulation in both cases are the same relations, namely civil law relations complicated by a foreign element. The norms of both of these systems serve the same purpose - the creation of legal conditions for the development of international cooperation in various fields.

PIL DOCTRINE - in a broad sense, a system of views and concepts about the essence and purpose of international law in specific historical conditions, in a narrow sense, the scientific works of international lawyers. The collective opinion of reputable lawyers from different countries finds its expression in the documents that regulate modern PIL: conventions, agreements, model and model laws, all kinds of regulations. It plays a supporting role in the law enforcement process, for example, to establish the content of foreign law or to understand and interpret PIL rules. The PIL doctrine sometimes helps to clarify certain international legal provisions, as well as the international legal positions of states. In particular, the disputing parties in their documents submitted to international judicial bodies sometimes use the opinions of experts on various issues of international law. In specific court decisions, the courts refer to doctrinal definitions, concepts, categories, classifications. Article 38 of the Statute of the International Court of Justice notes that the Court applies the doctrines of the most qualified publicists of various nations as an auxiliary means for determining legal norms. The doctrines of qualified lawyers contribute to the development of draft international treaties and resolutions of international organizations, the correct interpretation and application of international legal norms. New rules of international communication are developed and formulated in the doctrines, which can become norms of international law if they are recognized by states in international treaties or international customs. Although in the modern period the importance of the international legal system as an auxiliary source of international law has decreased, it has a significant impact on the formation of the international legal consciousness of a person and the international legal position of states.

PIL occupies a special place in the global legal system. Its main specificity lies in the fact that PIL is a branch of national law, one of the private law branches of the law of any state (Russian PIL, French PIL, etc.). It is included in the system of national private law along with civil, commercial, commercial, family and labor law. The concept of “international” here has a completely different character than in the MPP, it means only one thing: there is a foreign element in a civil legal relationship (it does not matter, one or more, and which version of the foreign element). However, PIL is a very specific subsystem of the national law of individual states.

The special nature and paradoxical nature of its norms are expressed in the very term "domestic PIL". At first glance, this terminology seems absurd. There cannot be a branch of law that is both domestic (national) and international at the same time. In fact, there is nothing absurd here. It's just that we are talking about a legal system designed to directly regulate international relations of a non-state nature (arising in private life). The paradoxical nature of the PIL norms is also expressed in the fact that one of its main sources is directly the MPP, which plays an extremely important role in the formation of the national PIL. It is customary to talk about the dual nature of the norms and sources of PIL. Indeed, this is perhaps the only branch of national law in which the MPP acts as a direct source and has direct effect. That is why the definition of “hybrid in jurisprudence” is quite applicable to PIL.

The main (general) principles of PIL can be considered as those specified in paragraph "c" of Art. 38 of the Statute of the International Court of Justice "general principles of law inherent in civilized nations." General principles of law are generally recognized legal postulates, methods of legal technique, “legal maxims” developed by the lawyers of Ancient Rome. Let us list the general principles of law that are directly applied in PIL: you cannot transfer more rights to another than you yourself have; principles of justice and good conscience; principles of non-abuse of rights and protection of acquired rights, etc. “Civilized nations” means those states whose legal systems are based on the received Roman law

The peculiarity of PIL as a law lies in the fact that it regulates a special group of social relations that have a dual nature and do not have their own system of law. Each state (with the exception of the cases of using the unified norms of international treaties and the general principles of international treaties) applies in the field of regulation of civil law relations with a foreign element not the same PIL norms common to all states, but different norms.

Thus, PIL is a special branch of law and belongs to the sphere of domestic law. PIL, as a branch of jurisprudence, consists of institutions and concepts of both the MPP and civil law institutions of various states.

Discussions about the very concept of PIL, its subject matter, norms, methods of legal regulation are primarily due to a complex phenomenon, denoted by three words - “private international law”, each of which has its own content:

International - means the presence of a foreign element;

Private - indicates the nature of the regulated relationship;

Law - defines a system of legally binding norms.

Even the very combination of terms that formulate the concept makes it possible to characterize PIL as a complex, non-traditional branch of law. It is no coincidence that PIL is called a "hybrid of jurisprudence" or a "puzzle for professors." On the one hand, regulation is carried out between subjects of internal law, mostly between individuals and legal entities; on the other hand, relations are international in nature, and often their regulation is mediated by international norms.

The question of what constitutes an MCHP is debatable. Some define PIL as an integral part of a unified system of international law, which includes international public and international private law (S.B. Krylov, V.E. Grabar, I.P. Blishchenko). This point of view was inherent, for the most part, scientists of the Soviet era.

Others characterize PIL as a polysystemic complex containing elements of both domestic and international public law (A.N. Makarov, R.A. Mullerson). This position has already lost its popularity. However, V.V. Gavrilov believes that the point of view of A.N. Makarova (beginning of the 20th century), shared by the modern researcher of the MChP R.A. Mullerson, is "the closest to reality." In other words, it is the most suitable for reflecting the essence of PIL. V.V. himself Gavrilov calls PIL in general an artificial formation, consisting of the norms of various legal systems, arguing that the concept of "private international law" is more of an educational and methodological term than a designation of any system of norms. Such an assessment can hardly be called constructive and worthy of attention in the study of PIL.

The most common view is the inclusion of PIL in the legal system of national branches of law, where it occupies an independent legal niche. This opinion was expressed by both the classics (L.A. Lunts, I.O. Peretersky) and most modern scientists (M.M. Boguslavsky, G.K. Dmitrieva, V.P. Zvekov, S.N. Lebedev, A. L. Makovsky, N. I. Marysheva, G. K. Matveev, A. A. Rubanov).

The point of view of L.P. Anufrieva, who believes that PIL is not a branch, but a subsystem of Russian law. According to the author, within the framework of the national legal system of each state, there is a special subsystem - international private law - with a unique object, methods of regulation and internal organization. The author substantiates his thesis with several arguments, among which the main one is the argument that the qualification of PIL as a branch of national law, along with other branches, “would jeopardize the justification for applying the relevant criteria” when separating the set of norms as a branch of law. Indeed, PIL includes relations from different national branches of Russian law (civil, family, labor, procedural). In addition, the specific conflict rules that permeate the entire "frame" of this law are the foundation, an integral part of the normative composition of private international law. Perhaps, as a staging scientific question, one can declare the status of PIL as a subsystem of Russian law. However, the current state of Russian legislation on PIL, huge gaps in law enforcement and insufficient research on the status of PIL predetermine the expediency of qualifying PIL at the present stage as a branch of Russian law.

Considering the most acceptable for characterizing the status of PIL is the widespread point of view that PIL is a branch of national law, it is necessary to indicate that each state independently develops and adopts the rules governing the choice of legal system in situations where civil legal relations are of an international nature. Conflict rules in all legal systems have their own content and sometimes differ markedly from each other, despite the fact that they establish rules for the same factual circumstances.

A judge considering a civil dispute complicated by a foreign element will first of all refer to national conflict rules. So, the court of the Russian Federation, depending on the type of legal relationship, is obliged to apply the conflict of laws rules contained in Section VI of the Civil Code of the Russian Federation or in Section 7 of the Investigative Committee of the Russian Federation, in a situation where the civil legal relationship is of an international nature. The legal systems of England, France, Ukraine, the USA and other states have their own national conflict regulation.

International private law is closely related to international public law, since relations between subjects of domestic law exist in international life. A number of issues on which states with different legal systems have managed to reach a compromise are resolved through the conclusion of international agreements. International treaties may contain both substantive and conflict of laws rules. The court, applying an international conflict of laws rule, will be forced, however, as in the application of national conflict of laws rules, to subsequently choose the appropriate substantive law, which will allow resolving the dispute on the merits.

Treaties containing substantive legal norms provide the states-participants of these treaties with ready-made regulation of relations, without searching for competent law. For example, the Berne Convention for the Protection of Artistic and Literary Works (1886) provides for special rules for translations, publication of works or their republishing with the consent of the authors. The states that have ratified this Convention (the Russian Federation since 1995) include its norms in their legal system. At the same time, the scope of the Berne Convention has its own legal space different from the scope of the national law.

Thus, national and international regulation represent two independent types of streamlining social relations. In private international law, as in no other branch of domestic law, the "volume" of international regulation corresponds to, and in some areas even exceeds, the "volume" of national regulation.

The concept and subject of PIL

PIL The subject of any science PIL subject signs of the subject of PIL

Characteristics of a foreign element in PIL

The foreign element can manifest itself in three ways: 1) Subject of legal relationship- a foreign person, a foreigner (foreign citizen, stateless, bipatride, refugee); foreign legal entity, enterprise with foreign investments, international legal entity, TNC; international intergovernmental and non-governmental organizations; foreign state). 2) Object of legal relationship is located abroad. 3) legal fact, with which the legal relationship is connected, takes place abroad.

PIL structure

Block system(structure): 1. Conflict rules. 2. Unified substantive legal norms. 3. (debatable) International civil procedure is a procedural norm for considering cases with a foreign element.

Collision problem in PIL and ways to overcome it. Types of collisions

Law conflict- due to the specifics of a private law relationship complicated by a foreign element, the objective possibility of applying the private law of two or more states to this relationship, which can lead to different results, to different solutions to emerging issues. The conflict of law is due two reasons. First: private law relations lie within the scope of private law, which has a national character. The presence of a foreign element in such a relationship connects it with the private law of not one state, but several. The second reason purely legal - the private law of different states differs, sometimes significantly, in its content: the same issues are resolved differently in the law of different states. Ways to overcome: 1. conflict law. (Clause 1, Article 1186 of the Civil Code of the Russian Federation). The application of a special rule indicating which law should be applied to a relationship complicated by a foreign element. 2. Unified substantive. Creation of uniform rules for regulating relations with a foreign element in the form of an international treaty. If there is a substantive contract, the choice of law is not made.

Interlocal, intertemporal, interpersonal collisions. Positive and negative collisions.

Interlocal collisions- these are collisions due to the presence in one state of several legal systems, each of which can regulate private law relations of an international character. Towards interpersonal conflicts include conflicts due to the presence in the state of several legal systems designed to regulate private law relations between different groups of persons. Intertemporal collisions are conflicts due to the presence of legal acts adopted at different times, designed to regulate the same private law relations. As a rule, all researchers, considering intertemporal collisions, note their identity with the issue referred to in the theory of law as the action of the law in time. Collision resolution: According to a special rule in the law or, in the absence of it, the law of the territory in which the legal relationship took place. Within the framework of a collision, collisions are distinguished positive(two or more legal orders claim to regulate the relationship) and negative collisions(none claims).

PIL sources in the countries of the continental legal family.

1) International treaties

3) Custom

4) PIL doctrine- the opinion of scientists is not considered as a source of PIL. However, when applying the norms of foreign law in Russia, both the practice of their application and the doctrine in the respective state will be taken into account.

Sources of PIL in Common Law Countries

1) International treaties agreements between states. division of treaties into multilateral and bilateral, universal and regional, self-executing and non-self-executing. 2) Domestic law is one of the main sources of MCHP in Russia. 3) Judicial precedents and jurisprudence- in the modern Russian legal doctrine, there have repeatedly been proposals to recognize court decisions as a source of law. 4) Custom- a rule of conduct that has developed in practice, for which legal force is recognized. 5) PIL doctrine- the opinion of scientists is not considered as a source of PIL. However, when applying the norms of foreign law in Russia, both the practice of their application and the doctrine in the respective state will be taken into account.

Agreements on legal assistance with the participation of Russia

International treaties are divided into international agreements regulating certain types of obligations (Vienna Convention on Sales Contracts) and agreements on legal assistance. Depending on the number of participants, agreements are divided into bilateral and multilateral. From the point of view of PIL, agreements on legal assistance are of particular interest. By September 1, 2003, Russia became a party to more than 30 legal aid treaties. Their value for the study of PIL is due to the fixing in such contracts of conflict-of-law rules on various institutions of civil and family law. A classic example that has received wide recognition in recent years is the 1993 Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk Convention). The Russian Federation ratified this convention in 1994.

Customs as a source of PIL

customs- these are rules that have been established for a long time, are systematically applied, although they are not fixed anywhere. In this respect, custom differs from the rule of law. Customs as a source of PIL: International customs based on the consistent and long-term application of the same rules, doctrine and practice are considered as sources of PIL. International customs are characterized by the fact that they are unwritten, their normative content is formed over a more or less long period of time, which serves as evidence of a “general practice” reflected in law enforcement practice: in decisions of international judicial and arbitration bodies, in resolutions of international organizations. These documents act as confirmation of the existence of an international custom as a whole or the presence of its individual elements. Customs based on the principles of sovereignty and equality of states are obligatory for all countries; as for other customs, they are obligatory for a particular state if they are recognized by it in some form.

Transaction form in PIL

Article 1209. Law applicable to the form of a transaction

1. The form of a transaction is subject to the law of the place where it was made. However, a transaction made abroad cannot be invalidated due to non-compliance with the form, if the requirements of Russian law are met. The rules provided for in the first paragraph of this paragraph shall also apply to the form of the power of attorney.

2. The form of a foreign economic transaction, at least one of the parties to which is a Russian legal entity, is subject to Russian law, regardless of the place of the transaction. This rule shall also apply in cases where at least one of the parties to such a transaction is an individual engaged in entrepreneurial activity, whose personal law, in accordance with Article 1195 of this Code, is Russian law.

3. The form of a transaction in relation to immovable property is subject to the law of the country where this property is located, and in relation to immovable property entered in the state register in the Russian Federation, to Russian law.

UNIDROIT principles

In 1994, the International Institute for the Unification of Private Law (UNIDROIT), as a result of 20 years of work, created the Principles of International Commercial Contracts, also called the UNIDROIT Principles. The UNIDROIT principles represent a completely new approach to the law of international trade because they are not an international convention subject to ratification by signatory states. This is a set of international trade customs, the so-called. "lex mercatoria", collected and unified. The provisions of the UNIDROIT Principles can be divided into two parts: the first part includes the fundamental principles common to all legal systems, and the second part includes the rules on the conclusion and execution of international commercial contracts, as well as the consequences of their non-fulfillment, formulated in the form of providing the injured party with various means of protection. The UNIDROIT principles shall apply:1) where the parties have agreed that their contract will be governed by these principles. They are used in this case in the form of “contract law”, which is especially useful when drafting contracts and negotiating with parties who speak different languages, from different legal systems. The guidance of the Principles is possible in pre-contractual work, in the conclusion and execution of contracts, in the event of disputes and mutual claims. 2) if the parties have agreed that their contract will be governed by "general principles of law", "lex mercatoria" or similar provisions (for example, "principles of natural justice"). 3) where there is no agreement on the choice of applicable law in the contract. 4) can be used to interpret and supplement international unified legal documents, as well as serve as a model for national and international legislation (formed the basis of the Civil Code of the Russian Federation, Lithuania, Argentina, Tunisia, Quebec, etc.)

Incoterms-2000 ": EXW term

EXW - Ex works - from the factory (ex works)

The seller is considered to have fulfilled the obligation to deliver at the time the goods are provided to the buyer at his enterprise, the obligations for loading, transportation, customs formalities are on the buyer.

Incoterms-2000": FCA term

FCA - Free carrier - free from the carrier (Free carrier)

The seller is considered to have fulfilled the obligation to deliver at the time the goods are handed over to the carrier. Customs clearance for export - on the seller, for import - on the buyer, the buyer pays for the transportation.

Incoterms-2000": FAS term

FAS - Free alongside ship - freely along the side of the vessel

The seller is considered to have fulfilled the obligation to deliver when the goods, cleared through customs, are placed along the side of the ship in a certain port. Loading, transportation and import license on the buyer.

Incoterms-2000": FOB term

FOB - Free on board - free on board (free on board)

The seller fulfills his obligation when the goods pass the ship's rail at the agreed port of shipment. On the seller delivery and loading. Everything on board is the buyer. Export license for the seller. Freight and import license on the buyer.

Incoterms-2000 ": CIP term

CIP - Carriage and insurance paid to - transportation and insurance paid to

The seller pays for the carriage and insurance of the goods to the agreed destination, but the risk passes when the goods are delivered to 1 carrier. Export license - the seller, import - the buyer.

Incoterms-2000": CPT term

CPT - Carriage paid to - transportation paid to

The seller pays for carriage to the named destination, but the risk passes when the goods are handed over to the first carrier. Export license - the seller, import - the buyer.

Incoterms-2000 ": CIF term

CIF - cost, insurance and freight - cost, insurance and freight

The seller is considered to have fulfilled the obligation at the moment the goods pass the ship's rail at the agreed port of shipment, but the seller pays for the delivery of the goods to the agreed point and the seller pays the minimum insurance against loss of goods in transit in favor of the buyer. An export license is issued by the seller, an import license is issued by the buyer.

Incoterms-2000 ": CFR term

CFR - Cost and freight - cost and freight

The seller is deemed to have fulfilled the obligation at the time the goods pass the ship's rail at the agreed port of shipment, but the seller pays for the delivery of the goods to the agreed point. An export license is issued by the seller, an import license is issued by the buyer.

Incoterms-2000": DDU term

DDU - Delivered duty unpaid - delivery without payment of duty

Customs clearance for import is carried out by the buyer.

Incoterms-2000": DAF term

DAF - Delivered at frontier - delivery at the border (free-border)

The seller fulfills the obligation to deliver at the time of arrival of the goods, cleared for export, not unloaded from the carrier's vehicle at the agreed border point. It is the buyer's responsibility to unload and import license. Transport - any, except water.

Incoterms-2000 ": the term DEQ

DEQ - Delivered ex quay - delivery from the berth (ex-quay)

The seller fulfills the obligation to deliver when the goods are presented at the quay at the agreed destination. The import license is paid by the buyer.

Incoterms-2000": DES term

DES - Delivered ex ship - delivery from the ship

The seller fulfills the obligation to deliver at the moment the goods are provided to the buyer on a ship that has arrived at the port of destination. Import license - buyer.

Incoterms-2000": DDP term

DDP - Delivered duty paid - delivery with duty paid

The seller fulfills the obligation at the time of delivery of the goods to the agreed destination.

Customs clearance for importation is carried out by the seller.

If the delivery is made to the buyer's enterprise, he pays for unloading. In other cases, the seller pays for transshipment to the buyer's transport.

Incoterms-2010 ": the term DAP

DAP - Delivered at point - delivered to the specified point

Delivery of goods to the agreed destination.

Customs clearance for importation is the responsibility of the buyer.

Incoterms-2010": DAT term

DAT - Delivered at terminal - delivered to the terminal

The seller fulfilled the obligation to deliver at the time of delivery to the tax, transport terminal

Preparing an Inheritance with a Foreign Element: Civil Law Methods for Optimizing an Inheritance

estate planning or international succession planning aims at a better distribution of personal property in the civil and fiscal sense between different countries and legal institutions in order to simplify the regulation of future inheritance. Subsequently, these preventive measures make it possible to ensure the undisputed and often more tax-attractive transfer of inheritance property to heirs. Methods of planning: a) Testament b) Donation c) Corporate and trust institutions. For the preparation of international inheritance can also be used corporate or fiduciary form of organization of property for the purposes of its inheritance. The transfer of immovable property abroad as a contribution to the authorized capital of a business entity will make it possible to subordinate all international inheritance to a single inheritance law - the law at the place of residence of the testator. hereditary trust- is a typical institution of the Anglo-Saxon legal system and is a special kind of trust management of hereditary property, established in advance by an interested person. Finally, in order to consolidate and ensure proper management of property located in different countries of the world, institutions such as Pension Fund or insurance organization. The scheme of their work is quite simple and involves the transfer of all or part of the property of the person concerned for the purpose of making insurance or pension payments to the persons indicated by him after his death.

Consular marriages

marriages between citizens of the Russian Federation living outside the territory of the Russian Federation are concluded in diplomatic missions or consular offices of the Russian Federation. marriages between foreign citizens agreements concluded on the territory of the Russian Federation in diplomatic missions and consular offices of foreign states are recognized on the basis of reciprocity as valid in the Russian Federation if these persons at the time of marriage were citizens of the foreign state that appointed the ambassador or consul in the Russian Federation.

Lame" marriages

"Lame" marriages- marriages that give rise to legal consequences in one state and are considered invalid in another. This problem is generated by the fact that many countries do not recognize the form and procedure for marriage if they differ from their national regulations. For example, in Israel, mixed marriages contracted abroad are recognized only if the wedding took place in a synagogue. Limping marriages are a serious destabilizing phenomenon in international life, give rise to legal uncertainty and entail negative consequences. An attempt was made to eliminate these shortcomings with the help of the Hague Convention on the Settlement of Conflicts of Laws in the Field of Marriage of 1995. However, this Convention has not yet entered into force, since it has a limited circle of participants and states that do not recognize marriages performed abroad, the Convention does not joined.

Legalization of documents

Under legalization is understood as the fact of confirmation that the document emanating from the authorities of the state or drawn up with their participation, complies with the legislation of this country. Legalization procedure consists in certifying the authenticity of the signature of an official on the document and the seal of the authorized state body, as well as the compliance of the content of the document with the requirements of the legislation of the state that issued it, which confirms its legal force. The need and procedure for the legalization of title documents in world practice can be divided into four categories: 1. Documents requiring mandatory consular legalization; 2. Documents recognized as valid on the territory of other states after passing through a simplified legalization procedure - affixing an apostel; 3. Documents mutually recognized on the territory of foreign states, participants in international agreements, in the absence of legalization; 4. Documents that can be legalized in the Chamber of Commerce and Industry of the Russian Federation. The legalization of documents issued by the authorized bodies of the Russian Federation for presentation abroad, on the territory of Russia, is entrusted to the Ministry of Foreign Affairs of the Russian Federation. Responsible for fulfilling the obligation to legalize documents is Consular Department Ministry of Foreign Affairs of the Russian Federation. Abroad, the powers to certify documents drawn up with the participation of official bodies on the territory of the host country are vested in the consular offices of the Russian Federation in these foreign states. To the main international acts on the abolition of the legalization of documents issued by a foreign state is the Hague Convention of October 5, 1961. This Convention was ratified by Russia on May 31, 1992. Accordingly, for all documents intended for submission to the official bodies of the States Parties to the Convention, a simplified procedure for certifying the compliance of the drawn up document with the legislation of the country that issued such a document is established.

116. Rules for determining jurisdiction: general rule, alternative jurisdiction

Basic rule for establishing jurisdiction- this is the territorial jurisdiction at the place of residence of the defendant (paragraph 2 of article 402 of the Code of Civil Procedure). Alternative jurisdiction- the rule of choice of jurisdiction for a dispute that can be considered in the courts of several states and the parties have the right to choose jurisdiction. The Arbitration Procedure Code of the Russian Federation (Article 247) and the Code of Civil Procedure of the Russian Federation (Article 402) contain additional features that make it possible to attribute the case to the competence of the Russian courts.

117. Jurisdiction Rules: Exclusive Jurisdiction

exclusive jurisdiction means that the dispute is under the jurisdiction only of the courts of a certain state with its exclusion from the jurisdiction of the courts of another state. In the Russian Federation - disputes over Russian real estate, transportation (if the carrier is located in the Russian Federation), dissolution of the marriage of a citizen of the Russian Federation with a foreigner, if both live in the territory of the Russian Federation, cases affecting the personal status of persons living in the Russian Federation. Exclusive jurisdiction for the Arbitration Courts - cases of state property, bankruptcy of a Russian company.

118. Rules for determining jurisdiction: contractual jurisdiction

Contractual jurisdiction– determination of jurisdiction based on the agreement of the parties in favor of the court of any state. Contractual jurisdiction is formalized in prorogation and derogation agreements. Derogation agreement- this is the exclusion of the case from the competence of the court of this state (although it is within its jurisdiction under local laws) and its transfer to the court of a foreign state. prorogation agreement- a case that is not under the jurisdiction of a local court under the laws of a given state (with jurisdiction over the courts of another state), in accordance with the agreement of the parties, is submitted for consideration to this particular court. Any prorogative agreement is simultaneously derogatory. As a general rule, a prorogatory agreement cannot change the generic (substantive) jurisdiction.

Arbitration Agreements

Arbitration Agreement represents the agreed will of the parties to refer the dispute between them to the ICA. The specificity of the ICA lies in the voluntariness of applying to arbitration and, at the same time, in the binding nature of the arbitration agreement. Feature of the arbitration agreement: it is strictly binding on the parties and they cannot avoid submitting the dispute to arbitration; the court of general jurisdiction has no right to either cancel the arbitration agreement or review the decision of the arbitration on the merits. Types of Arbitration Agreements:

1. arbitration clause- this is an agreement of the parties to the contract, directly included in its text, on the arbitration of disputes that may potentially arise. This is a condition to refer the case to arbitration in the event of a dispute in the future, which provides for the jurisdiction of a certain arbitral tribunal.

2 . arbitration record- this is an agreement of the parties on the arbitration of a dispute that has already arisen, separate from the main contract. This is the most preferred type of arbitration agreement, since the agreement of the parties to arbitrate is made when disagreements have already arisen and the parties clearly understand the nature of the dispute.

3 . arbitration agreement is an independent agreement between the parties to arbitrate disputes that may arise in the future in connection with this contract or group of contracts or in connection with joint activities in general.

The concept and subject of PIL

PIL- an independent, polysystemic, complex branch of law that combines the norms of international and national law and regulates international relations. The subject of any science- social relations that this science studies and regulates. For PIL subject it is characteristic that these social relations develop in the international sphere (complicated by a foreign element). Also, a distinctive feature is their character - private law (non-powerful). These are basically civil law relations regulated by the norms of civil law. To a large extent, private law relations include family and marriage, labor, land relations, relations regarding property and related non-property rights. These relations most often arise between individual entrepreneurs and legal entities, in some cases the subject-state. These relations are also called cross-border. Since these social relations are international, the ways of their regulation are considered by the laws of different states in different ways. And the main purpose of PIL is to resolve these collisions. Based on this, the following signs of the subject of PIL: - these relations are international; (associated with the legal systems of different states); - They are private.

Place of PIL in the system of law: points of view

1. PIL is part of the civil law of each state. 2. PIL is an independent branch of international law of each state. 3. MChP - like the WFP, part of the MP. 4. PIL is a complex legal array at the junction of international and national law.