"Characterization" in private international law, also known as "qualification", is an important and complex system, and the theoretical differences related to it have a long history. According to Tong theory, identification is a process of legal understanding based on certain legal viewpoints or legal concepts to characterize or classify the nature of relevant facts and classify them into specific legal categories, thereby determining which conflict rule should be invoked. In the practice of foreign-related civil and commercial trials, identification, jurisdiction, and legal application are listed as three major issues. It is "the first issue encountered in handling cases...directly affecting the outcome of the case." [1] If the process of a judge selecting and applying the law can be compared to the epic hero Manelao’s journey on the sea, then the purpose of identification is to obtain an oracle to determine the starting point and direction of exploring the applicable law. 1. Myth and law: Identification problems and image perspective in foreign-related civil and commercial trials. In Volume 4 of the Odyssey, Homer narrates the story of King Menelaus of Sparta in order to draw out Odyssey’s uncertain fate. memories. Similar to the mastermind of the Trojan horse scheme, he could not find his way back to his hometown and was trapped in the sea without knowing where he was. Many years later, he met the sea maiden Eidothea on the island of Pharos. The latter knew about his situation and prompted him to think. She said that only by catching her father, Proteus, could he understand the reason for being trapped. and methods of relief. Following her plan, Menelao and his companions captured the old Poseidon, forcing him to reveal his true nature after various changes, answer his confusion and reveal the fate of everyone. Philosophers believe that "Greek mythology itself contains infinite meanings and symbols that represent all thoughts." [2] In fact, Manelao’s dilemma is also a judge’s dilemma. The journey of choosing applicable law is often not a smooth road, and different starting points may lead to different ending points. Take the "Retrial Case of the Dispute between American President Lines and Feida Electric Factory, Feili Company, and Great Wall Company over the delivery of goods without a bill of lading" [3] (Meilun Company case) as an example. It is a rare foreign-related commercial case that has gone through first instance, appeal and retrial. The legal application at each stage of the case is very different. The reason lies in the different characterization of the nature of the dispute, especially whether the registered bill of lading is a document of property rights. Just as Manelao relied on the double oracles of the Poseidon, in the identification process of a typical foreign-related case, the judge must use certain identification basis to classify the identification objects, so as to clarify what connecting objects they belong to to determine the conflict rules, and then Conflict rules are then used to determine the governing law. The basis for identification may be the law of the court or foreign law, and there are three objects, namely, case facts, basic norms (which may overlap or intersect with the basis for identification and applicable law), and conflict rules. After confirming the facts through the rules of evidence of the forum, the judge cannot directly examine its compatibility with the basic norms (but there are prior or simultaneous situations in practice), but must first determine the conflict rules to select the applicable law. On the surface, the judge examines the fit between the facts and the objects connected by the conflict rules, but at a more essential level, they classify the facts based on certain basic norms and establish their correspondence with the objects connected by the conflict rules at the forum. . Due to many uncertain factors, the identification of foreign-related cases is a difficult point in the trial. An in-depth analysis of mythological imagery may help solve it. 2. Apparition and True Form: Discussion on the Characteristics of Thinking in Recognition and Conflict and Deviation in Recognition The various changes of Poseidon are symbols of the fluidity and mirroring nature of water. In the process of identifying conflict of laws, just as water constantly reflects the shape of the observer, the facts and rules that enter the scope of perception at different stages of litigation (different from domestic cases, may depend on the ascertainment of foreign law, determination of applicable law, etc.) It may be different. Qualitative will constantly reflect the new understanding of the recognizer, so his thinking is continuous, repetitive, stage-specific and stage-specific in form. (1) The dispute over the basis for identification and its possible expansion. When the basic norm is domestic law, such as the differences between private international law and substantive law in the forum; or when the basic norm is foreign law, such as the characterization of foreign law rules by the forum’s legal system. Either the classification is different from the legal system to which it belongs, or the same or similar rules do not exist in the local law of the court, a conflict of identification will occur. Article 8 of the "Law on the Application of Laws in Foreign-Related Civil Relations" (hereinafter referred to as the "Applicable Law") clearly states: "The characterization of foreign-related civil relations shall be governed by the law of the place of the court." By establishing the "law of the place of court" as the basis for identification in legislation, there may be Help end practice chaos.

However, German judicial experience shows that among the three types of identification conflicts, the forum forum cannot properly handle conflicts caused by "loopholes in domestic substantive law" and "differences in domestic international private law and substantive law systems". [4] Therefore, in practice, there has been a long-term dispute between the "applicable law theory" and the "forum forum theory", and many mixed theories in between have been produced. The applicable law theory requires that the applicable law used to resolve disputes should also be the basis for classifying the disputed facts. Wolff believes that "to examine whether foreign law is applicable without considering its classification is not to treat foreign law according to its true appearance." [5] Although there are logical contradictions in this theory (qualitativeness is the prerequisite for determining the applicable law, why is the applicable law also the prerequisite for qualitative determination?), it is also realistic. In view of the fact that understanding is a continuous thinking process that is constantly changing and deepening, there must be the possibility and rationality in practice to conduct qualitative and repeated comparisons by examining the laws that may be applied. The Meilun Company case seems to be an example. Another example is the "Appeal Case of the Trademark Ownership Dispute between Guangdong Light Industrial Products Import and Export Group Corporation and TMT Trading Co., Ltd." [6], the Supreme Court identified the case as a trust relationship when there was no "Trust Law" in our country. Closer to the comparative method identification theory. The "Applicable Law" does not stipulate exceptions for the basis of identification, completely excluding the applicable law theory, analytical and comparative law theory, case identification theory, functional identification theory, segmentation identification method, compromise method, and appropriate methods based on policy analysis. The possibility of using standards [7] as a qualitative basis for foreign-related civil trials is somewhat arbitrary and may lag behind the trend of international legislation. (2) The dispute over the identification stage and its possible expansion 1. Secondary identification after the governing law is determined. Secondary identification is relative to primary identification and occurs after the governing law is selected. The first-level identification is based on the law of the court, and the second-level identification is based on the selected applicable law. Although the mainstream view does not deny the phenomenon of secondary or multiple identifications, it generally does not recognize secondary identifications. Nussbaum criticized it as "only adding to confusion, because the interpretation of the concept of foreign law according to the foreign law is completely different from the identification in choice of law. At this stage, there is no identification conflict." . [8] However, traditional debates on “secondary identification” have not considered the possibility of uniform provisions on identification phenomena under international treaties and the resulting impacts. [9] In 2009, the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea ("Rotterdam Rules"), for the first time in the form of a convention on uniform substantive law, made special provisions on "identification of the carrier" and "identification of the party controlling the goods". stipulations, and member states shall not retain their provisions. Assuming that after the court qualifies the case in accordance with local substantive law, the conflict rules guide the Rotterdam Rules as the applicable law. At this time, if the country to which the court belongs is a member state of the Convention, the court shall conduct a secondary identification in accordance with the Convention; if it has no obligation as a member state, out of the need for complete and accurate application of the Convention, if there are no reserved matters of public order or domestic domestic Mandatory provisions [10], the legal legitimacy still requires secondary identification in accordance with the convention to determine whether the convention is applicable. At this time, secondary identification not only solves the problem of interpretation, but also involves the selection of applicable law. Especially when the provisions on carrier identification in the Rotterdam Rules conflict with the provisions of the law of the forum, there will also be a conflict between identification based on domestic law and identification based on international conventions. [11] The Convention does not stipulate the legal liability of non-carriers. If the party after secondary identification does not meet the conditions of a carrier as defined by it, the Convention may not apply, and the court will once again face the problem of choice of law. Secondary identification also reflects the reality that the identification is based on the "applicable law". Regardless of whether it is recognized or not, the exploration of the identification system stipulated in international treaties has become the soil for the germination of the secondary identification phenomenon. Regardless of whether China joins the Rotterdam Rules in the future, it is necessary to take precautions and clarify whether Article 8 of the Applicable Law has compulsory or public order attributes, or to modify this article as recommended below. 2. The identification issue in the jurisdiction determination stage. Critics believe that identification is “not directly related to litigation jurisdiction” because “jurisdiction is determined first based on human factors (mainly the defendant’s domicile) rather than the nature of the specific case. "At this time, "there is no need to characterize the case," but it also admitted that "when the court decides whether it has special jurisdiction, it does need to characterize the case.

"[12] In fact, when the defendant has no domicile in my country and special jurisdiction needs to be determined, there is generally no need to qualify, because no matter what kind of property rights dispute, as long as the subject matter of the lawsuit, the defendant's property available for seizure is located, and the defendant's representative office is domiciled, Within the territory of our country, the court can exercise jurisdiction (Article 265 of the Civil Procedure Law). However, in other cases, when actions involving infringement and breach of contract are concurrent, special geographical jurisdiction regulations may need to be applied. When referring to the jurisdictional provisions of international treaties to which my country is a party, characterization is still required. In addition, foreign-related cases often involve arbitration agreements or clauses. In the "Appeal Case of Jiangsu Provincial Materials Group Light Industry and Textile Corporation v. (Hong Kong) Yuyi Group Co., Ltd. and (Canada) Prince Development Co., Ltd. over infringement damages compensation disputes" [14], the main purpose of characterizing the dispute is to resolve the litigation and Jurisdictional conflicts between arbitrations. Empirical research also points out that jurisdictional objections in foreign-related civil and commercial trials are mostly based on the grounds of agreement arbitration and improper geographical jurisdiction. In fact, my country's civil judgments must be recognized by foreign countries. For execution, the first thing foreign courts examine is whether the jurisdiction of our country’s courts is consistent with its characterization. (3) Exploration and resolution of conflicts and deviations. In the myth, Puluo Tiao will only reveal his true identity when his true body is bound. The correct identification result is consistent with the facts and rules, but before the end of the identification process permitted by procedural law, what the judge captures through characterization may be just an illusion. 1. Identification of conflicts The identification of conflicts originates from legal conflicts and is mainly an objective issue. It may be completely resolved. However, in order to avoid judicial deadlock, the "exceptional principle" of the identification basis should be established when amending the "Applicable Law", and draw lessons from the "If it cannot be appropriately resolved according to the law of the forum," in my country's "Model Law on Private International Law", It can be resolved by reference to the law that may be chosen to apply"; or in Bulgarian law "If the relevant legal system or concept does not exist in the law of the forum, and it cannot be determined after interpretation according to the law of the forum, it should be considered when identifying Foreign law that regulates these legal regimes or concepts. The identification should take into account the international factors in the legal relations being adjusted and the various characteristics of private international law. [15]" 2. Identification deviation problem Identification deviation is different from identification conflict. It is a subjective issue, including "error" or "error". Error is relative to error. "It is due to the court or judge's judgment on relevant matters at different stages of litigation. "It is caused by different understandings of the nature of the facts", and the fundamental reason lies in the "different review authority, different access to evidence, different identification basis used, and different understanding levels of case handlers" at each stage. But the identification error " It does not necessarily lead to errors in legal application and judgment results." [16] Compared with identifying conflicts, the issue of identification deviations in our country's judicial practice may be more worthy of attention. It is necessary to break through the theoretical constraints and admit that identification outside the application stage of conflict norms This phenomenon needs to be responded to by the Civil Procedure Law. Only in this way can the error be eliminated and the error can be remedied. It is recommended that the initiation of characterization be traced back to the time of filing the case. As a matter of procedure, the basis for identification can only be based on the local law of the court. In determining the characterization, the court should try to be consistent, but allow for errors in the identification of the jurisdiction stage and the choice of law stage. For accepted disputes, if the error does not affect the jurisdictional basis, the court can continue to exercise jurisdiction; if the error causes it. If the basis for jurisdiction changes and the parties raise objections to jurisdiction, the court should suspend jurisdiction. 3. Alone and companions: judge's authority doctrine and party doctrine in the identification process. Manelao's sea wandering is very different from Odyssey. Even though he always travels together, the latter is often deliberately kept isolated by the gods. Perhaps this is why Odysseus' return journey is particularly long. So, in order to avoid deviations in identification, Manelao followed the advice of the sea maiden. , Should the judge pay attention to the role of the parties? (1) Identification of competing claims in the case of competing claims. Concurrent claims refer to a life fact that meets multiple legal requirements, thus generating multiple claims, and the purpose of these claims There is only one. [17] The most typical provision in my country that recognizes competing claims is Article 122 of the 1999 Contract Law.

The 2008 "Provisions on the Causes of Action for Civil Cases" (hereinafter referred to as the "Provisions on the Causes of Action") emphasizes: "In the case of competing claims, the people's court shall exercise the right of claim independently chosen by the parties and based on the nature of the legal relationship in dispute between the parties. Determine the corresponding cause of action" thus establishing the principle of party doctrine. However, there are also views that admitting concurrent claims violates the judge’s law-knowledge principle of “give me the facts and I’ll give you the law”. As a civil law country, judges should not be bound by the legal opinions raised by the parties. [18] "Foreign-related civil relations" in Article 8 of the Applicable Law is generally considered to refer to the subject matter or cause of action, which can be called the "cause of action" in our country's context. [19] However, the "connection object" of my country's conflict rules does not directly correspond to the "cause of action" of the "Cause of Action Provisions". In the theory of private international law, identification is the act of a judge exercising public power ex officio in order to apply conflict rules. The cause of action should be determined based on the right of claim chosen by the parties, which does not mean that in foreign-related civil trials, the determination of the connection object must be based on the choice of the parties, especially when the choice of the parties is unknown. Judging from past practice, our country's courts seem to be inclined to identify cases ex officio. Take "Lu Hong v. United Airlines International Air Passenger Transport Damage Compensation Case" [20] (Lu Hong case) as an example. The plaintiff's previous and subsequent requests did not clarify the basis of rights. However, judging from the scope of the plaintiff's request for relief, initially The request was based on breach of contract, and the request for modification should be regarded as based on infringement because it included "compensation for mental damages". The judge determined it to be an infringement ex officio. Unfortunately, despite characterizing the parties, the conflict rules applied by the judge were illogical. At that time, our country's law did not specify that infringement disputes could be consensually selected as the governing law. Therefore, infringement should be governed by the law of the place where the tort was committed, that is, Japanese law (Japan is also a member of the two conventions). However, the judge directly applied the two conventions based on the conflict of contract law rules. Although in the end The applicable law is correct, but the conflict rules are applied incorrectly. (2) Identification when there are no competing claims. When there are no competing claims, no matter what cause of action the plaintiff chooses, the court has the final right to make the final decision ex officio, and the characterization should be unique. However, when the parties reached a consensus on the characterization of the case, our country's courts seemed to respect it. For example, the Supreme Court's ostensible reason for characterizing the Meilun Company case as a contract dispute was that "the parties have no objections and should be recognized." It is also necessary to point out that for the characterization of delivery of goods without a bill of lading, the Supreme Court adopted a single standard (infringement) in the early years, ruling out the possibility of competition. However, after the Meilun Company case, the company changed its position in Legal Interpretation [2009] No. 1, which stipulated in Article 3: “The holder of the original bill of lading may require the carrier to bear liability for breach of contract or bear liability for tort.” This changed the previous situation. The single nature theory of the bill of lading was changed to the dual nature theory, and the parties were given the right to choose. (3) Preliminary ideas for reconciling conflicts In the case of competing claims, the court should respect the parties’ right to choose a cause of action and determine the applicable conflict rules based on the cause of action chosen by the parties. However, the court may exercise interpretation before the parties make a choice. The parties have the right to inform them of relevant rights and the consequences of their choices, especially when the parties’ choices are unclear; unless a substantive trial is conducted, the court believes that there are no competing claims. 4. Homeland and Blessed Land: The Homecoming Complex that Affects the Identification Orientation and the Way to Overcome it Manelao was obsessed with homecoming. When the oracle told him to return to Egypt to offer sacrifices to the gods, he was unwilling to cross that land again. A sea of ??mists and storms. In foreign-related trials, there is also the Homebound Complex, that is, the tendency to apply the local law of the court as much as possible. In addition to systems such as preservation of public order, directly applicable laws, and inability to identify foreign laws, improper identification is also one of the tools to exclude the application of foreign laws. The characterization is based on the law of the place of the court, which is expressly stipulated in the Applicable Law; however, in order to choose the law of the place of the court as the applicable law, it is a wrong tendency to deliberately ignore the characterization, blur the characterization, cherry-pick the characterization, and distort the characterization. (1) Questioning the causes of the Sigui Complex 1. The disorder of conflict laws. Conflict rules lack stability, clarity and predictability. Cardozo believes that conflict of laws is "the most troublesome part of jurisprudence". When judges adjudicate foreign-related cases, "the logic here appears more ruthless and more indifferent to the ultimate goal." [21] 2. The limited rationality of the referee. Judges are instinctively wary and alienated from foreign laws, but have a natural tendency to feel close to local laws.

[22] Although the overall professional quality of judges who hear foreign-related cases is higher than that of judges who hear purely domestic cases, their legal consciousness is inevitably marked by specific domestic laws. Without systematic training in foreign-related case judgment methods, it is difficult to practice in practice. Proficiency in and application of private international law. 3. Comprehensive increase in demand for services. Faced with the increasing demand for judicial services, it is difficult for judges to have enough time to think, and they often even rely on intuition to reach judgment conclusions. They are unwilling or unable to describe the process of reasoning in writing. The improvement of judicial service standards and the moral diversification and heterogeneity brought about by social differentiation have also made adjudication face more controversies. Under the existing judicial and social evaluation system, applying foreign laws will increase the risk of adjudication, and make vague characterizations. , applying Chinese law is a safer choice. 4. Institutional bottlenecks in judges’ interpretation of laws. The tasks of judges in my country are limited to applying the law, and they have no power to interpret or create laws. The judge is using arbitration to resolve disputes rather than determining rules. The court has no motivation to fully argue the case. If it can be concluded without reasoning and without being held accountable, why not? Once the judge becomes accustomed to slacking off or giving up efforts, the judge's grasp of the decision will be questionable. (2) The way to overcome the longing for home complex. The oracle pointed out that Manelao was destined to go to the blessed land (Elysium), and his homeland was not the end of his return journey. Therefore, returning to Egypt to offer sacrifices is a metaphor, not only asking him to compromise and sacrifice, but also asking him to stay and think. Judges must keep in mind that the law of the forum is not the end of the exploration. The long journey and appropriate stay are all to find the final applicable law. Even if the applicable law is the law of the forum, even if the homeland becomes a blessed place, it is sublimated by wandering. ’s hometown.

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