Removing Obstructions for Achieving Courts’ Coordinated Solutions in the Subject of Characterization (Using the Experience of French Law) | ||
| مطالعات حقوق تطبیقی معاصر | ||
| Article 6, Volume 14, Issue 33, December 2024, Pages 133-167 PDF (1013.86 K) | ||
| Document Type: Research Paper | ||
| DOI: 10.22034/law.2023.49872.3066 | ||
| Author | ||
| Seyed abbas Seyedi Arani* | ||
| Assistant Professor, University of Kashan, | ||
| Abstract | ||
| Characterization, means putting subject in category of communication to determine the governing law is global issue that has special complexity in private international law with conflict of characterizations due to internal regulations. Since in Iran bilateral method prevails, judge faces different characterizations from design to the resolution of issue. selfish implementation of system of lex fori on all characterizations both basic, secondary, connecting factor and preliminary problem, challenges the unification of solutions; An ideal that requires achieving same results in different situations in domestic and international law. In situation where the national authors have not explained the conditions governing the issue of description accurately and have confused its types, the current research aims to provide solution by using French law -The inspiration of Iran's private international law-and focusing on separation of characterizations and in this situation, Strengthening the participation of foreign country is helpful: Solving preliminary problem based on competent law according to conflict of law rule of country governing the main issue guarantees internal integration and international coordination. Characterization contained in each rule with regulations of country that enacted it and include the foreign country's secondary characterization, have same result.Of course, there is limitation in bilateral method that makes it impossible to achieve goal. In fact, it isn’t possible to violating conflict of law rule of lex fori: different interpretations of subject lead to the issuance of conflicting verdicts, but basic characterization must be done according to the rules of lex fori. That's reason also justifies negation of renvoi due to characterizations because assuming Carrying out basic characterization according to rules of lex fori and jurisdiction of the substantive law of foreign country, by accepting renvoi resulting from this country's characterization of subject and the application of other substantive law, conflict of law rule of lex fori is violated. | ||
| Keywords | ||
| Basic characterization; Preliminary problem; Connecting Factor; Unification of solutions; Secondary characterization | ||
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