Almost 200 legal systems existed in the world at the beginning of the formation of private law at the international level. Each of them carried out its functions separately through the establishment of certain norms for regulating, in fact, the same social relationships. However, often the need arose for additional control of rights, which was the main reason for the creation of a system of special norms that take into account the international nature of relations.
The nature and subject matter of private international law
MCHP is a complex that combines the relevant norms of the legislative base of the state, as well as treaties and traditions of an international nature, regulating property or personal relations with the condition of their complication by at least one element of the legislation of another country.
It is important to note that the MCHP (subject and its method) occupies a special position in the general legal system, as it forms an absolutely independent branch of jurisprudence. The relationships controlled by international law are not within the jurisdiction of a particular state, which proves their absolute uniqueness.
The subject defines the EMP, which is the regulation of legal relations between citizens with the condition that these relationships are supplemented with a “foreign” connotation. Thus, the presented structure allows full control of private-law interaction through historically formed institutions, which are specific extensions of individual private-law complexes (civil, labor or family).
Scientific knowledge of MEP
The modern complex of scientific ideas and knowledge in the sense of social phenomena with a “foreign” connotation is the corresponding direction in science, which can be classified into general and special parts, and also includes a civil code of international character.
So, the general part contains the study of the sources of MCHP, widely used by specialists in the corresponding field, terms, active principles, which are described in detail below, and so on. In addition, familiarization with the legal status of subjects of civil-law interaction complicated by a foreign connotation, and, naturally, with the state, which is a special subject of this kind of activity, should be included in the general part of the science under consideration. Moreover, science considers foreigners, both legal and physical, solving the problems of private international law.
The special part contains a number of sections in its structure:
- property rights;
- international transportation;
- interaction for the purpose of settlement transactions;
- family and personal relationships;
- intellectual property;
- uprooting disagreement over inheritance;
- labor interaction and civil process of international orientation.
General principles of MCHP
A common element in the structure of law are certain principles. It is important to note that this axiom is equally relevant to the legal system both at the national and international levels. The guiding ideas that characterize the content of the public-private partnership (the subject and concept of the term are discussed above), its essence and purpose, form options for improving legal norms, are classified in accordance with two categories: general principles and special ones.
The first group contains the following elements:
- The principle of national jurisdiction of private law relations with an element of a foreign state.
- The principle of conflict regulation of these relations.
- The principle of guaranteed use of the legislation of a foreign state in accordance with the conflict of laws norm.
- The principle of dispositivity (autonomy of the will of each side).
- The principle involving a one-time use of the collision rate.
- The principle of absolute priority of the norm of an international level treaty over the norm of a clause of national legislation.
Special Private Principles
In solving certain problems of the considered area, individuals in international private law are often guided by special principles, which are the fundamental conflict principles, which are fully recognized by the doctrine of the Ministry of Emergency Situations and enshrined in law as a general rule. In addition, they are often used in practice even if there is no direct indication in the law on this issue. So, the number of central conflict principles should include:
- The principle of the flag (relations regarding the implementation of international traffic).
- The principle of the location of a certain thing (property of a certain person (group of persons)).
- The principle of the place of harm.
- The principle of the place of specific labor activity (regulation of labor relations with an element of a foreign state).
- The principle of the location of the central contractor for a particular transaction.
- The principle of exclusion of management of foreign law in copyright relations (regarding the protection of the rights of the author).
- The principle of exclusion of the application of procedural legislation of foreign origin.
Features of the normative aspect of MPP
The notion of MCHP and the implementation of its basic principles require appropriate legislative guidance. So, the normative aspect of MCHP is made up of conflict of laws, substantive and procedural rules. The first group of acts is the leading one, since the central task of the Ministry of Emergencies is the resolution and elimination of clashes between the rule of law of the two structures. Conflict norms determine the state, the application of the law of which is appropriate in a particular situation, in accordance with the following sources: legislation at the national level and treaties of an international nature, in the structure of which there are many unified conflict of laws standards.
The second part of the MPP (the subject, concept and principles discussed above) includes direct impact standards that govern international civil law relations. Thus, substantive rules of both a national and international nature are widely used in the regulation of private law relations with an element of the legislation of a foreign state.
Sources of MCHP
Today, modern literature gives a lot of different classifications regarding the forms of demonstration of the will of the state, which is related to the absolute recognition of the existence of such a category as law, as well as to its creation or structural change (addition or exclusion of the relevance of a particular element). In accordance with the most common classification, the following components are sources of law:
- An international treaty that can be adopted in the form of convection, pact or agreement.
- Laws of a national nature (or a specific law, formed at the appropriate level).
- A certain custom (an unwritten rule, characterized by a special frequency of repetition, which society often encounters). There are traditions of business circulation or merchant shipping, national or local customs.
- Judicial precedent (it is an independent type of sources of MChP and is defined as a decision of a judicial authority, obligatory when familiarizing other courts with situations of a similar nature).
Functions
Modern international private law exists to bring relations that go beyond the jurisdiction of one state into an absolute order. The strategic goal is achieved by solving certain tasks, which, as a rule, are reduced to the following functions:
- The coordinating function is to clearly reflect the standards of behavior generally accepted for any state through the norms of the MCHP.
- The regulatory function allows you to create a system of rules of conduct in a wide variety of areas of relations individually for each state.
- The interim function serves as a tool to encourage all states in the course of their life to be guided by international obligations by adopting the relevant norms of the MPP.
- The protective function provides guaranteed protection of the rights of the state and the legitimate interests of subjects of private law relations.
Methodology of control in MPP
The concept, specificity and subject of private international law, of course, occupy a special position at the global level. Nevertheless, it is a well-formed methodology that allows to achieve the highest result of the impact of MChP on the final solution of a particular situation. It is important to note that the completely different positions of specialists in terms of sources and standards of MChP determine disagreements regarding the views on the formation of the methodology. Scientists argue whether there is a possibility of a variety of methods. However, most experts accept only the general method of MChP - overcoming collisions. The latter option is fully supported by such figures as V.P. Zvekov and G.K. Dmitrieva.
There is an opinion that the functioning of the considered category of knowledge is carried out due to the active management of the two elements under consideration: conflict of law and substantive law. It should be noted that scientists from different countries came up with many similar categories, however, few of them have found wide recognition in society. Vivid examples of such methods are autonomy of will and unification of law.
Legislative structure of the MPE
The concept of MPP implies an appropriate regulatory justification. Thus, such a complex of private international law includes norms that are diverse in their origin, nature and structure. A special part of this complex are special elements, which include the Law on Private International Law. It is adopted in almost all countries of the world (Poland, Hungary, Belgium, Venezuela, Tunisia and so on). It is important to note that the formation of the submitted document, as a rule, is based on a number of principles in terms of structuring the content:
- The first section discusses general concepts (essence, subject of private international law, its sources and methods).
- The second section involves the study of the normative aspect of MPP. So, by familiarizing yourself with certain rules, it is possible to determine the relevant law in various areas of public relations.
- The last section consists of transitional and final provisions that serve as a specific finish in the consideration of the document.
Current problems of MCHP
Naturally, all types of private international law suggest certain difficulties in the study and further application of this category. A special place among them is occupied by the issue of codification of MPP. It should be highlighted and the problems of unification of regulation of private law public interaction, because public law of an international nature is the first step in monitoring private law relations of the same orientation. In turn, the latter chose as the central formula for the correlation of national and international public law the recognition of the role of the “absolute principle” as the second.
Everyone knows that today globalization applies to all aspects of life, without exception. This means that it is completely natural that normative regulation is subject to constant additions and changes, which allow gradually approaching the ideal picture. It is important to note that it is international law that is subject to the strongest pressure from these processes, which can be explained by the productive activities of specialists in terms of solving urgent problems.
MChP today
Current trends in the development of private international law are formed in accordance with the processes of world economic integration, as well as the internationalization of public relations, which are called globalization. So, without proper regulation, it is impossible to bring into absolute harmony the interests of an economic and personal nature, to form a system of cooperation that is extremely beneficial for both sides, and to significantly expand the national framework of rights and freedoms at the individual level. Thus, modern society seeks to increasingly improve the human aspect of private international law. This method of MChP allows you to organize absolute security and protection of human rights in the field of family, labor or civil law, which helps to improve mutual understanding between the subjects of life, the formation of peaceful and good relations. Of course, this is a perfect advantage not only in the sense of the considered direction, but also in terms of any aspect of the modern world.