conflict of laws
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conflict of laws,that part of the law in each state, country, or other jurisdiction that determines whether, in dealing with a particular legal situation, its law or the law of some other jurisdiction will be applied. An alternative term, widely used in Europe, is "private international law." An example of a situation that might involve the different laws of two places is that of a contract signed in one state and mailed to another. Complications may arise if one of the states provides that a contract so delivered is effective once mailed, while the other state provides that it is not effective until received. The conflict of laws rules that a court applies in these disputed situations are commonly designed to decide the case by the law of the territory having the closest connection with the transaction. An often expressed ideal is that of making the decision the same regardless of where the case is decided.
In the United States the existence of many states with legal rules often at variance makes the subject of conflict of laws especially urgent. The Supreme Court ruled in 1938 that each federal court must apply the conflict of laws rules of the state in which it sits. Certain provisions of the U.S. Constitution deprive the states of complete freedom to determine how they will decide cases in this field. Most important is Article 4, Section 1, which provides, in part, "Full Faith and Credit shall be given in each State to the Public Acts, Records, and judicial Proceedings of every other State." The U.S. Supreme Court has interpreted this provision as requiring each state to treat as valid any judgment rendered by another state that had jurisdiction over the matter and to lend its powers of enforcement to the judgment; the sole exception is that the courts of one state do not enforce claims arising under the penal law of another (see extraditionextradition
, delivery of a person, suspected or convicted of a crime, by the state where he has taken refuge to the state that asserts jurisdiction over him. Its purpose is to prevent criminals who flee a country from escaping punishment.
..... Click the link for more information. ). Jurisdiction in this context is defined as the capacity of the state to impose its authority on a transaction because of its intimate connection with the litigants and/or the subject of litigation.
There are especially difficult jurisdictional problems in the field of divorce. The chief problem occurs when only one of the parties appears and the other is merely notified of the action. In such cases the Supreme Court has ruled that the state had jurisdiction to divorce if the party appearing was domiciled there. The court has defined domiciledomicile
, one's legal residence. This may or may not be the place where one actually resides at any one time. The domicile is the permanent home to which one is presumed to have the intention of returning whenever the purpose for which one is absent has been accomplished.
..... Click the link for more information. as the place where a person is living with the ultimate intention of making it his or her home. A person who obtains a divorce under these circumstances may seek alimony, or payment thereof, in any state and is immune from the charge of bigamy if he or she remarries.
The most important attempt in antiquity to deal with the problem of conflict of laws was the jus gentium [law of nations] of the Romans: a system of laws applied to all free foreigners. The founder of the modern study of conflict of laws was the medieval jurist, Bartolus of Sassoferrato (1314–57).
See W. W. Cook, The Logical and Legal Basis of the Conflict of Laws (1942); P. C. Jessup, Transnational Law (1956); S. A. Bayitch, Conflict of Laws (1968); J. G. Collier, Conflict of Laws (1988).
Conflict of Laws
(as a branch of law), a body of rules governing choice of laws applied by a state. The branch of conflict of laws includes “internal” rules governing choice of laws; these internal rules are based on the legislation of a given state and on legal precedents in countries where precedent is recognized as a source of civil law, on unified rules governing choice of laws established by international agreements signed by the given state, and on international customs recognized by the competent agencies of the state. The term “conflict of laws,” which has become widespread in the 20th century, was first used by Dutch jurists in the 17th century. In Anglo-American legal literature the term is used as a synonym of “private international law.”
The existence of “national” systems of conflict of laws is due to the considerable discrepancies in the substantive civil law of different countries, as well as to the fact that on the basis of the existing international treaties it is impossible to create a system of rules governing choice of laws that would be binding for all countries. The repeated attempts from the 19th century on to create a universal international codification of conflict of laws have been unsuccessful. The international treaties now in force include a relatively small number of countries and deal with only some conflicts of laws (for example, the Bustamante Code of 1928, the Geneva Conventions on Bills of Exchange of 1930 and on Checks of 1931, the convention on international sales of movable material objects of 1955, and agreements on legal aid in civil, family, and criminal cases).
The internal rules governing choice of laws of foreign countries are often included in civil codes and other instruments of civil legislation such as the French civil code of 1804, the introductory act to the German civil code of laws of 1896, the Italian civil code of 1865 (1942 edition), and the Brazilian civil code of 1942.
Soviet conflict of laws is an integral part of the private international law applied in the USSR (another part is the unified substantive-legal norms). The sources of the Soviet conflict of laws are Soviet laws, international treaties signed by the USSR, and international customs recognized by competent agencies of the state. Soviet conflict of laws proceeds from the commonly recognized principles of international law, and it furthers the organization of international cooperation and the legal formulation of Soviet business connections with other states. In some socialist countries special laws are adopted that codify the conflict of laws (such as the Czechoslovakian law of Dec. 4, 1963, on international private law and proceedings and the Polish law on private international law of Nov. 12, 1965).
REFERENCELunts, L. A. Mezhdunarodnoe chastnoe pravo. Moscow, 1970.
V. P. ZVEKOV