In any state, both state and international legislative norms apply. Its citizens enter into transactions with foreign organizations, foreign nationals. Therefore, it is important to familiarize yourself with conflict of laws. Consider the concepts of its norms, structure, basic varieties.
What is it?
Let's start our acquaintance with the concept and structure of conflict norms. The word "conflict" comes from lat. collisio - "collision". This translation partially characterizes the concept.
A conflict of law norm is a legislative norm that contains rules for determining law, which is applicable for regulating relations that are complicated by foreign elements. This is the main definition.
The structure of the conflict norm is often referred to as conflict law. It is also called collision. This applies to private international law.
The essence of the concept
The structure of the conflict of laws rules of private international law is a tool for determining a specific legal national order, which will regulate the essence of legal relations.
We give specific examples. When concluding a lease, the Russian tenant and the French lessor did not independently choose the right that will regulate their legal relations, which follow from the provisions of the contract.
In the event of a dispute, a law enforcement agency (for example, a court) in the absence of international legal material regulation on these issues is forced to refer specifically to the structure of conflict of laws rules. On its basis, the court determines which law (Russian or French) should be applied in this case.
The norms of domestic and French (elected by the court) rights will already begin to regulate relations on the merits. By themselves, international conflict of laws norms are devoid of regulatory influence. Their function is the formation of a conflict control mechanism.
Structure
According to established provisions, the norm consists of conflict of reference and volume. What do they mean?
Volume indicates the circle of relationships that may be affected from the position of the conflict norm. The binding will contain an indication of the signs of determining the law used.
A concrete example can be given. The form of the transaction is determined only by the location of its completion. Here, the volume of the conflict norm contains an indication of the form of the transaction. This issue is resolved by the law of the state where the transaction was completed (this, respectively, is binding). Also, a binding may be referred to as an attachment form.
Some conflict characteristics are used only for specific categories of legal relations. So, a personal law is only suitable for determining the legal status of subjects of private international law. And the law of finding things is for material property rights. The act location location law is for various legal relations arising by virtue of such an act.
Traditional forms of attachment
So, the structure of the conflict norm is binding and volume. It is also important to highlight the most commonly used prevailing forms of attachment. This is the following:
- Personal law of individuals.
- The principle of autonomy of the will.
- Personal law of legal entities.
- The law of the location of things.
- The law of the location of the conclusion of contracts.
- The law of the location of the execution of contracts.
- The law of the location of the commission of crimes and offenses.
- Zakova judicial authority proceedings.
- Law flag of ships.
Composition of MCHP
Collision bindings and volumes are a part of the norm of the same name. In turn, it is an integral part of the MPP.
Private international law, based on the foregoing, consists of two categories of norms of a different nature:
- Conflict legal norms. By themselves, they do not regulate legal relations, which are complicated by foreign elements. They can only refer to the law.
- Substantive legal norms. They stand out already within the framework of certain national legislation. It is they who regulate legal relations with foreign elements.
Main varieties
There are several forms of conflict norms in the framework of classifications:
- Imperative, dispositive, alternative.
- Unilateral and bilateral.
- General and subsidiary.
Consider these classifications in detail.
Unilateral and bilateral
The action of conflict norms is divided according to this classification into the following two groups:
- Bilateral. Such conflict rules imply the application of the law of any world state. But only if it falls under the binding conditions. As an example, the provisions of Art. 1205 of the Civil Code of the Russian Federation. It regulates the content of property rights and other material rights to movable and immovable property. It says that the exercise and protection of such rights is determined in accordance with the laws of the country where the property is located.
- One sided. These conflict norms indicate the law of a certain state, which will regulate the relationship, which is indicated in volume. Accordingly, only the law of the state to which this conflict of laws rule belongs will be considered such a right. We give an example of Art. 1213 of the same Civil Code of the Russian Federation. It says that only domestic law applies to contracts concluded in relation to land plots located on Russian territory.
Separation by the method of expression of will
Within the framework of this classification, it is possible to distinguish three varieties of conflict norms:
- Imperative. These are the norms that contain only categorical prescriptions. They relate to the choice of law. Such norms do not change at the discretion of the parties to any private legal relationship (according to article 1213 of the Civil Code).
- Dispositive. Such rules contain a general rule regarding the choice of rights. They leave the parties to the transaction the opportunity to refuse it. That is, replace it with another rule. Paragraph 3 of Art. 1219 Civil Code. It provides the following: after the occurrence of a circumstance or the commission of an action that entailed the infliction of harm, the parties may agree among themselves on the application to the circumstance (which arose as a result of the infliction of harm) of the law of the state of the court. That is, the legislation of the country in the spaces of which the case is being considered.
- Alternative. These rules provide for several rules at once for the election of a law in relation to a private offense (indicated in the scope of the conflict of laws norm). Accordingly, the parties, law enforcement agencies have the opportunity to choose any of these rules. However, sometimes the law indicates the sequence in the application of such rules.
In most cases, it is sufficient that the offense is valid according to one of the relevant, fixed rules. An example is para. 1 p. 1 Article 2109 Civil Code. The form of the transaction must be subject to the law in force at the place of its execution. But at the same time, a transaction made abroad cannot be declared invalid due to non-compliance with the form of compliance with the norms of Russian and domestic law.
In this case, the volume of the conflict transaction is the transaction form. It provides for two alternative, equivalent bindings at once: the law of the Russian Federation and the legislation of the state in the territory of which the transaction took place. The sequence of their use is quite rigid.
The main link is the second - first of all, the form of the transaction is considered according to the legislation of the location where it was made. And only if the form of the transaction does not meet the requirements of these laws (which leads to its invalidity), does it make sense to apply Russian law. In the event that the transaction will meet its requirements, it shall be deemed valid. Otherwise, it will remain invalid.
Separation by level of regulatory regulation
The following classification divides conflict norms according to the degree of their normative regulation within the framework of MCHP. Two categories can be defined here:
- General norms. They form the most general rules for the selection of law intended to apply.
- Subsidiary norms. Define both one or several rules for the selection of the used law associated with the main rule. They are used only when, for some reason, the general rules cannot be applied. Or prove to be insufficient to ensure law and order.
Paragraph 1 of Art. 1210 of the Civil Code of the Russian Federation. It is established here that the parties to the agreement may, by mutual agreement, choose the right among themselves, which will determine their powers, obligations, and responsibilities in the framework of this transaction.
An example of a subsidiary norm is Art. 1211 of the same Civil Code. It is valid when the parties have not agreed on the law applicable to their transaction. The law of the country where he lives is used, the active (and not passive) contractor is registered.
The conflict norm actually consists of rules that determine the possibility of applying law, domestic or foreign, in relation to a specific transaction, a specific case. As for the structure of such norms, they consist of binding and volume. Conflict norms are delineated in a number of classifications.