When countries apply foreign law, the competent authority must comply with certain legal conditions, bases and modalities. In each country, the conditions, basis and legal form for the application of foreign law are different. So about the matter “Foreign factors in international justice in Vietnam” Let’s find out with LSX in the article below. Hope this article will help you with your concern!
Legal grounds
- Civil Code 2015
General regulations on foreign elements
In the development history of the international judicial branch, foreign elements were formed from the natural exchange in civil and commercial life between legal entities and individuals of countries. (e.g. citizens of country A traveling in country B or marrying citizens of country; enterprises of country X entering into commercial contracts with enterprises of country Y or participating in investment capital directly into the territory of country Y and vice versa…). It is the exchange that tends to expand like that between countries in international life that has formed specific legal relations – called international judicial relations. The basic feature of these legal relations is that the constitutive elements of such legal relations are related to foreign countries.
For example:
1) The subject of that relationship is a legal entity or a foreign citizen; or
2) The subject matter of that transaction relationship (property – movable or immovable property) is existing in a foreign country (house, money in a bank, etc.), or
3) The legal event giving rise to, changing, or terminating the relationship took place in a foreign country (contract signing or contract breach event…).
Depending on the laws of each country, foreign factors may be clearly specified in the law or not specified in the law but are implicitly recognized by the State as a customary principle or practice in transactions.
In Vietnam, according to the provisions of the Civil Code 2015, foreign elements include:
1) Subjects participating in legal relations are foreign agencies, organizations and individuals, residing abroad;
2) The grounds for establishing, changing or terminating such relationship arise in a foreign country, according to foreign law;
3) The property related to that relationship is located in a foreign country.
In fact, legal relations with a foreign element are not only purely international legal relations, but can also be international public legal relations, e.g. in the case of civil servants and public employees, a diplomatic mission of a country sent by the Government abroad with a diplomatic status in accordance with international law on diplomacy. However, the foreign element in international public law relations does not give rise to the phenomenon of “conflicts of law and usually does not have as much decisive influence on the choice of governing law as in the field of international law”
In legal practice, the foreign factor is considered as the basis for formulating and determining the principles of selecting the governing law, in order to solve the problem of legal conflicts and conflicts of jurisdiction in international law. For example, for the element of the subject participating in legal relations, there is the principle of nationality law respectively; For the element of a legal event taking place in a foreign country, there is corresponding principle of law where the contract is concluded or the place where the disputed event occurs, for the subject matter of the transaction, there is the original law of the place where the object is…
International justice in civil relations
In the Civil Code 2015, what is international justice is expressed through the provisions on the application of law (settlement of conflicts of law) to civil relations with foreign elements as follows:
Priority is given to the application of international treaties
– Laws applicable to civil relations involving foreign elements are determined by international treaties to which the Socialist Republic of Vietnam is a signatory or by Vietnamese law.
Based on the agreement of the parties
– In case an international treaty to which the Socialist Republic of Vietnam is a contracting party or Vietnamese law provides that the parties have the right to choose, the law applicable to civil relations involving foreign elements shall be determined at the option of the parties.
Apply the law of the country with the closest connection
– In case it is not possible to determine the applicable law according to the above principles, the applicable law is the law of the country that has the closest relationship with that civil relationship involving foreign elements.
Foreign factors in international justice in Vietnam
Between theory and practice on international justice, there is no consensus on how to understand foreign elements in international judicial relations, but often based on at least one of the following three main signs to conclude: whether a substantive relationship of a civil nature or a civil procedural relationship has a foreign element, namely.
First, the sign of the subject participating in the relationship.
This is a case where at least one of the parties involved in the relationship is a “foreigner”. “Foreigner” here is understood in a broad sense, which can be a foreign individual, a foreign legal entity, a foreign organization, or even a foreign country or international organizations, etc.
Example 1: A 25-year-old Vietnamese male citizen marries a 23-year-old Russian female citizen. Or, male US citizens adopt Vietnamese children.
Example 2: In the course of settling a case on a dispute over ownership of property between the plaintiff who is a Vietnamese citizen residing in Da Nang and the defendant who is a British citizen residing in Bulgaria, The Vietnamese court (the court is dealing with the case) has requested that the inheritance of property arises between people of the same nationality, but the object of the relationship is property that exists in a foreign country, so this inheritance system with foreign elements is important.
Example 3: The Vietnamese court accepts to settle a dispute over property ownership between the plaintiff and the defendant, who are both Vietnamese citizens and are both residing in Vietnam, but the property related to the dispute is the mansion in England.
Second, the indication of the grounds for giving rise to, changing, performing or terminating the relationship.
According to this sign, a relationship with a foreign element is a relationship where the basis (base) giving rise to, changing, performing or terminating the relationship occurs in a foreign country.
For example: Two Vietnamese citizens get married in Ivory Coast before the competent state agency of Ivory Coast, or two Vietnamese enterprises sign a contract to buy and sell goods in Laos but the contract is entirely in Vietnam.
In Vietnam’s international justice, “foreign elements” are regulated in the Civil Code 2015, Civil Procedure Code 2015, Law on Marriage and Family 2014 … but specific and comprehensive. The most sufficient are the provisions of the Civil Code 2015 and the Civil Procedure Code 2015. In general, the provisions on foreign elements in Vietnam’s international justice are quite modern and consistent with international justice. economy of many countries around the world. Clause 2, Article 663 of the 2015 Civil Code stipulates:
2. Civil relation involving a foreign element means any of the following civil relations:
a) There is at least one of the participating parties is a foreign natural person or juridical person;
b) The participating parties are Vietnamese natural persons or juridical persons but the basis for the establishment, modification or termination of such relation arose in a foreign country;
c) The participating parties are Vietnamese natural persons or juridical persons but the subject matter of such civil relation is located in a foreign country.
This method is implemented on the basis of applying substantive legal norms built in national laws, international treaties and relevant international practices. Thus, when applying the substantive method to regulate specific international judicial relations, legal issues with foreign elements will be immediately solved by the substantive legal norm already built in them, clearly indicate the rights, legitimate interests and obligations of related parties as well as provide specific solutions to related issues.
Substantive legal norms exist in international treaties and international practices, according to convention, are called substantively unified legal norms.
For example, Article 11 of the 1980 United Nations Vienna Convention on the International Sale of Goods provides:
“A contract of sale need not be concluded or confirmed in writing or subject to any other requirement on contract form. The contract can be proved by any means, including by witness statements or, customary terms of delivery in international trade such as: FOB, CIF, DAF, INCOTERMS (international trade terms)…
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Frequently asked questions
Application of foreign law is an activity of implementing national law through the application of provisions of foreign law in order to regulate civil relations involving foreign elements.
• Competent judicial authorities should apply foreign law in good faith and fully. It is understood that the application of the invoked foreign law system, how the foreign law system is structured, and by what types of legal sources must be applied without being arbitrarily eliminated. ;
• Foreign laws must be interpreted and enforced in the same way as in the country where they are enacted;
• Competent judicial authorities and adjudication agencies have the duty to understand and determine the contents through the study of legal documents, the practice of law enforcement, the judiciary, customs, documents, etc. of the countries concerned. . In addition, it can be through diplomatic channels, diplomatic missions, consulates abroad of their own state, as well as through consulting organizations, law firms or legal research agencies to learn foreign law in the best way for adjudication. The involved parties in the case also have the right and responsibility to demonstrate, invoke, explain and apply before the adjudicator to determine the true content of the foreign law to protect their interests.
These are multi-faceted relationships with the participation of countries, international organizations, and even citizens and legal entities of countries.
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