| China’s Law on Law Application to Foreign-Related Civil Relations creatively selects habitual residence as the principal connecting factor of lex personali but leaves its meaning open. Habitual residence in China’s private international law may not be necessarily the same as, or even should be necessarily somewhat different from that in the civil law. So how to define or interpret habitual residence is one of the key problems in applying China’s private international law. Neither the Hague Conventions on Private International Law or foreign legislations define it. Instead, its meaning mostly depends upon judges’ discretion, varying from case to case. But there must be something in common that might be found and guide its interpretation and definition lest it were too rigid or too flexible. In common law countries, like England and most states of the U.S., habitual residence are treated like a legal concept but less demanding than domicile, e.g. Scarmen Rule, while the European Court of Justice and some European continental countries take it as fact. But whatever it is, foreign practices show that habitual residence implicates something that affects the party’s current interests which ought to be protected. It’s thus found that habitual residence often points to be the place where those interests are located, namely, the central place of the party’s current interests. While interpreting and determining the habitual residence, in essence, judges have to consider and balance the parties’ interests in a given legal relation, find the territory where those parties’ interests are located, and ultimately decide the relationship between those parties and that territory. |
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