Academic journal article Asian Social Science

The Problem of Qualification in Determining the Applicable Law: Theoretical Approaches and Legislative Consolidation in the Republic of Kazakhstan

Academic journal article Asian Social Science

The Problem of Qualification in Determining the Applicable Law: Theoretical Approaches and Legislative Consolidation in the Republic of Kazakhstan

Article excerpt

Abstract

The article is devoted to one of the most discussed issues in the theory of private international law - the question of qualification. Qualification is important in all branches of the law, as it is the basis for the subsequent administration of the law. The ultimate purpose of qualification is correct understanding and adequate application of a rule of law. In this article, the author expands on the importance of qualification in the private international law and in the process of determining the applicable law. The author analyzes basic doctrines of qualification that had been developed in the theory of private international law, and makes conclusions on the appropriateness of lex fori application at the stage of determining the applicable law, and application of lex causae at the stage of application of foreign law as a regulatory order. The article also analyzes legislative consolidation of legal qualification in the conflict of laws of the Republic of Kazakhstan. It should be noted that further presentation of the material mostly is based on the theoretical principles of private international law of the Republic of Kazakhstan (close to continental legal system) and on its legislative approaches.

Keywords: qualification in the private international law, autonomous qualification theory, lex causae qualification, lex fori qualification, determination of the applicable law, primary and secondary qualification, application of foreign law

1. Introduction

In the research we have widely used scientific methods such as analysis and systematization. Because the study was conducted in the field of private international law, one of the main methods that were used to draw our conclusions was the comparative legal method.

2. Methods

The problem of "qualification" is particularly pressing in the private international law. A judge faces the issue of qualification in all activities on administration of private international law and in determining the applicable law. At the stage of choosing the applicable law, qualification (namely, primary qualification) is extremely important because, although the rule of law governing the relations has not yet been chosen, the judge considers a specific established relations complicated by a foreign element and already uses certain concepts contained in the scope and connecting factor of a conflict rule, in the agreement of the parties, etc., significance of which must be established, and which must be evaluated. At the stage of application of law that directly regulates legal relations, qualification (namely secondary qualification) is important for understanding and further establishing the content of foreign law, if it is determined as applicable.

Occurrence of the qualification problem in the private international law theory is associated with the names of the German lawyer, Franz Kahn, who called this the "conflicts of qualifications" and the French lawyer, Etven Bartin, who spoke of "conflict of qualifications". They identified this problem in 1891 and 1897, respectively, independently of one another (Issad, 1989, p. 101; Luntz, 2002, p. 250). In English-American legal literature, the problem of qualification was first introduced by Professor Lorenzen in 1920. He linked the process of qualification with two main questions: 1) what does a judge do in carrying out qualification? 2) what is subject to qualification? He answers the questions posed in the following way: in the first case the court determines how to define one of legal concepts such as domicile, contract, etc.; in the second case, the answer is that qualification applies to a concept of a controversial nature, and after it is classified its definition becomes clear (Association of American Law Schools, p. 144). Different authors use the term "characterization", "qualification" and "qualification" when referring to this topic. However, "qualification" is more often referred to in civil law, while English law prefers "characterization" (Biryukova, pp. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.