Some lawyers believe that IPL (international private law) is an independent national branch of law. In fact, digging deeper, it turns out that this is a set of legal norms that regulate private law and cross-border relations.
Subject and concept of MPP
The subject of PPM is homogeneous relations that meet two indicators: private law and cross-border. Thus, the subject of private international law is private law and cross-border relations.
Private law relations
Private law relations are relations that are based on the principles of legal equality, free expression of will, property independence, the subjects of which are mainly individuals and legal entities. Private relationships are governed by private law, family law and labor law. All these groups of relations are also referred to international private law, subject to the criterion of transboundary.
Cross-border relations
Cross-border relations are relations that are complicated by a foreign element. Any relationship has the following structure: subjects (at least two), an object and mutual rights and obligations. If at least one subject or object is foreign, then the relationship will be cross-border. But a legal fact is not included in the system of the relationship itself, but is the basis for its occurrence, change or termination. Therefore, the legal fact, as a result of which the attitude arose or changed, is foreign, then such an attitude will be of a transboundary nature. In cross-border relations, domestic relations must be present, otherwise the relationship will not be cross-border, but completely foreign or not for the Russian Federation. In order for the relationship to fall under the influence of Russian International Private Law, it is necessary. So that, in addition to the foreign element, there must be at least one domestic element. Only in this case the relationship will be cross-border, domestic.
purchase by a Russian citizen of a cell phone via the Internet from a Chinese seller.
These relations are of a private law nature, because it is a sale and purchase and the sphere of civil law. The foreign element is expressed in the foreign entity - the Chinese seller. There is a foreign object - a cell phone sold by a Chinese seller and belonging to China, located in China and manufactured in China, although it is not specified whether the phone is foreign or not foreign to Russia.
marriage of a Russian citizen to an Italian citizen in Italy.
Here again, the relationship is private, since it is a family relationship. The foreign element is expressed in a foreign entity - an Italian citizen and in a foreign legal fact, in Italy. The domestic element is expressed in the form of a Russian citizen of a Russian subject.
: inheritance by a Russian citizen of property located in France.
Here, the domestic subject is a Russian citizen, but the foreign object is property located in France. The relationship itself is of a private law nature, refers to hereditary and civil relations.
investments of the Swiss company NESTLE in the production of products in the Russian Federation.
Investment relationships are private and cross-border in nature, although some investment relationships associated with tax exemptions may also be public in nature.
Conclusion: relations that are of a private law nature and cross-border nature are the subject of Private International Law and are regulated with a set of legal norms using special methods.
Basic principles of MPP
MPL consists of norms that are established by the state or the legislator, both at the international level through the conclusion of international treaties and at the national level, including the relevant norms of the national source of law.
The principles of PPM are the main ideas in accordance with which the entire system of legal regulation of private law and cross-border relations is built.
The principle of equality of national law
The principle means that when coordinating private law and cross-border relations, the legislator must recognize not only domestic law, but also foreign law and, when formulating conflict of laws rules, refer not only to domestic law, but also to foreign law.
Every lawmaker within his own country thinks that his right is most valuable, mostly just, mostly humane, mostly better. However, this principle obliges the legislators of each state to dictate conflict of laws rules, respectively, so that they refer not only to domestic law, but also to foreign law, since foreign law is as paramount, just as valuable, just and humane, but from the point of view of that country in which it is created.
This principle is implemented in such a way that in conflict of laws rules, as a rule, they do not refer specifically to domestic law, as the law of that state, which is determined in accordance with the established sequence.
Model 1: property rights are governed by Russian law.
Here the norm does not correspond to the principle of equality of national law.
Model 2: property rights are governed by the law of the country where the things are located.
Here the state recognizes not only its own right, but also the foreign one. It presents the norm so that, when applying a certain algorithm, a person can choose the law of the country that should regulate these relations, moreover, when selecting it, it can be both domestic law, if things are in Russia, and foreign law, if things are in a foreign state … Thus, the similarity of our law and foreign law can be traced. In this norm there is no infringement, where the law of England, for example, for us it is like a foreign law. Each of these rights or legal systems is valuable in itself.
The principle of protecting the domestic legal order
The principle means that when applying foreign law to regulate private law and cross-border relations, it must ensure that the basic rules of domestic law are not violated. If the conflict of laws rule sent us to foreign law and we must accordingly apply foreign law to regulate private and cross-border relations, then a certain problem may arise when foreign law contradicts our law. This principle is implemented through two institutions of private international law, the institution of the public policy clause and the institution of super-interactive norms. For example, article 156 of the Family Code, it lays down the rules for establishing the rules for marriage.
The principle of the closest connection
The principle means that when formulating conflict-of-law rules for specific private-law and cross-border relations, it is necessary to take into account the law of which state this private-law and cross-border relationship is most connected with. The legislator, when formulating conflict of laws rules, which he refers to the law of any state for the regulation of private law and cross-border relations, he formulates an algorithm for determining the applicable law. This algorithm is the main task in the formulation of a conflict of laws norm.
