Public Policy in Soviet Private International Law

189 Pages·1970·7.008 MB·English

by  André Garnefsky (auth.)

PUBLIC POLICY
IN
SOVIET PRIVATE INTERNATIONAL LAW
by
ANDRÉ GARNEFSKY
Second edition
Springer-Science+Business Media, B.V.
1970
ISBN 978-94-017-5070-7 ISBN 978-94-017-5068-4 (eBook)
DOI 10.1007/978-94-017-5068-4
To My Wife and the Memory of My Parents
PREFACE
This study is based on original Russian sources, due atten
tion being paid to some authoritative views advanced by foreign
lawyers.
Leaving aside the essentials of the work in the hope that they
will speak for themselves; I should like to make some prelim
inary remarks regarding the linguistic and other formal aspects.
First of all it should be noted that many of the Soviet laws
have already been translated into English either in the USSR
itself or in Western countries. This fact is fully reflected
in the bibliographical survey at the end of this study. Some
laws have been translated both in the Soviet Union and abroad,
as for instance the Fundamentals of Soviet Civil Legislation. In
such a case I have used the translation made in the USSR even
though linguistically it may be inferior to the translation made
in the West. The author has translated only those legal provi
sions of which no English translation was available.
For transliteration, I have used the system of the Library of
Congress of the USA without its diacritical marks.
Further, a word should be said about the references in the
notes. They are very brief and consist of the surnames of the
authors concerned and if necessary an additional element, e. g.
the year of publication, or a part of the title. For the full
names and titles the reader is referred to the bibliographical
list. Extensive annotation with regard to legal documents has
also been avoided. It was considered that a special bibliogra
phical list would provide sufficient details about the titles and
the origin of these documents. The same applies to the court
decisions, whose sources are mentioned only in the bibliography.
It is important to note, in this connection, that there are no
extensive collections or compilations of Soviet court decisions
relating to private international law. The decisions which have
been used in this study are quoted either from the Bulletins of
the Supreme Courts of the USSR and the RSFSR and other of
ficial periodicals or, in the last resort, from legal treatises
published in the Soviet Union or abroad.
Finally, I should like to mention some names intimately con
nected with the realization of this study.
My research work was carried out under the supervision and
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guidance of Professor L. I. de Winter. For his inestimable help
as a man of science, for his encouragement and noble tolerance
my deepest appreciation.
I am also very grateful indeed to Professor Z. Szirmai for
his critical perusal of my manuscript and for the many valuable
suggestions he has made.
For some essential improvements in the original concept of
the .general part of this study I am greatly indebted to Profes
sor J. E. J. Th. Deelen.
Very warm thanks go to my good friend A. G. Macrae, M. A. ,
for the many substantial corrections to my English, and to
Mr. M. L. Saunders, LL. B., for the final revision of the manu
script.
Grateful acknowledgement is also due to Professor S. van
der Woude and J. R. Defraipont, Senior Scientific Offir.er, for the
indispensable facilities they granted to me as an employee of
the Amsterdam University library, as well as to all colleagues
for their kind assistance and interest in this work.
The sacrifices which my wife willingly made are innumerable.
For her assistance, encouragement and patience and, above all,
for the extremely pleasant conditions at home, I am eternally
grateful.
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TABLE OF CONTENTS
INTRODUCTION
Some general features of Soviet private international law.
Legal sources. 7
GENERAL PART 21
I. Soviet criticism of Western public policy 21
Preliminaryremarks. Frenchsystem. German system.
English system. American system.
II. Soviet legal writers on their own system 30
Preliminary remarks. Exceptional character of Soviet
public policy. What is relevant for determining whether
a foreign law is contrary to Soviet public policy. The
legal consequences of repugnant acts and situations.
Effects of the rejection of foreign law. The contents
of public policy (changeability and preciseness).
III. General remarks on the current doctrines of public
policy and the approach to be followed
~8
Current doctrines. The approach to be followed.
SPECIAL PART
I. Soviet legislative public policy 55
Preliminary remarks.
1. Capacity regulations and the position of foreigners
in the US~R. 55
2. Foreign commerce. State monopoly of foreign com
merce. Formality regulations. Merchant shipping.
Foreign exchange and currency regulations. 67
3. The law of property. 87
95
4. Torts.
5. Succession. 101
3
6. Family law.
Preliminary remarks. Marriage. Effects of mar
riage. Divorce and annulment of marriage. Mutual
relations of parents and children. Adoption. Guar-
dianship and curatorship. 112
11. Soviet judicial public policy 138
Preliminary remarks.
1. Obligations. 139
2. Property rights. 146
3. Family law. 150
Marriage. Divorce. 150
SUMMARY AND FiNAL REMARKS 155
SAMENVATTING 162
BmLIOGRAPHY 168
LIST OF LA WS AND LEGAL DIGESTS 187
LIST OF CASES 192
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INTRODUCTION
SOME GENERAL FEATURES OF SOVIET PRIVATE
INTERNATIONAL LAW
The assertion of Marx and Engels that the law, like every
other form of civilization and culture, is only a phenomenon
of a derivative superstructural character, determined by the
economic basis of a given society, has been found sufficient by
the Soviet authorities to explain their legal system, which is
considered as a practical implementation of Marxist ideology.
"From the socialist economic relationships, from the economic
basis of the socialist society arises not only civil law, but also
every other branch of Soviet law", explains a modern Soviet
legal writer (1). As to the economic basis of the USSR, it is
defined by Article 4 of the Soviet Constitution of 1936:
"The economic foundation of the USSR is the socialist system
of economy and the socialist ownership of the instruments and
means of production, firmly established as a result of the liq
uidation of the capitalist system of economy, the abolition of
private ownership of the instruments and means of production
and the elimination of the exploitation of man by man".
So-called "socialist property" manifests itself either in the
form of State property or as co-operative property (Article 5
of the Constitution). The latter, however, is under total State
control and being of a transitory character it aims eventually
at a merger with the former. The qualification of socialist prop
erty as the "basis" of Soviet society does not apply to the prop
erty permitted to private persons, which is limited to commo
dities for consumption only (2) and is intended to serve the
strictly personal needs of the owner.
(1) loffe. p. 14 (An author taken at random as there is no difference of opinion on this
point among Soviet legal writers). See also: Osnovy teorii gos. i pr •• p. 365.
(2) Some minor exceptions to this principle are made in favour of peasants and craftsmen.
The means of ploduction. however. which these persons can own are of insignificant value
and may not be used for the exploitation of employed labour (Article 9 of the Constitution).
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Consequently the legal relations based on this property system
and the laws governing them have a predominantly public char
acter. That is the reason why the term "private" has been ex
cluded from the domain of Soviet municipal law. To put it hI
the words familiar to every Soviet legal writer and originati ng
with Lenin: "From the point of view of Soviet law, the term
"private law" is highly unsuitable because our law does not know
the division into public and private as it is made in bourgeois,
continental law (France, Italy, Germany), civil and commercial
law referring to the latter. All the law is considered by us as
public, as we do not recognize anything 'private'; to us every
thing in the domain of economy is of a public law nature and
not "private". (1)
The only branch of law where the term "private" has been pre
served is that of private international law, but even here it has
a largely formal significance and its use is consistently avoided
in legislation and doctrine. The term private international law
has been criticized by Soviet writers as being inconsistent with
Soviet legal reality, where private law is no longer private and
where the "international" rules in Soviet private international
law are only a product of national legislation. Notwithstanding
the aforesaid serious objections, this name has been preserved
as the most suitable and the suggestions by Soviet and other
communist authors to replace it by "international economic law"
or "international law of property" have found no support.
There are no substantial differences in the general definitions
of private international law suggested by Soviet authors. They
are of the opinion that private international law governs relations
of civil law, the law of procedure, family law and labour law
arising out of international intercourse (2).
When dealing in detail, however, with the scope of private in
ternational law, i. e. with the question of what rules belong to
this branch of law, opinions are divided. For instance, Lunts
disagrees with Pereterskii, who maintains that substantive law
rules, such as the rules of foreign trade, governing relation-
(1) Quoted frOOl: Lunts I (1959), p.31; Pereterskii, Krylov, 1959, p.14. This thesis hOlds
good as far as the substance of the legal provisions is concerned. From the formal point
of view, however, and for the purpose of systematization, the concept of civil law (used
sOOIetirnes as a synonym of private law) has been preserved, as is the case with many
other traditional legal concepts and institutions. This transplantation of "capitalist" ideas
in "socialist" soil has been effected with the reservation that they will have only a tem
porary and conditional character, 1. e. they will be given a new socialist content.
(2) As indicated in the introduction to the chapter on private international law in: Literatura.
p.335.
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ships with foreign elements should be included.
According to Lunts, private international law predominantly
consists of conflict rules. He admits, however, that some of the
Soviet laws and decrees regarding foreign trade, although of a
substantive nature, implicitly contain conflict rules prescribing
the application of Soviet law, for instance, the laws relating to
the procedure for signing foreign trade transactions. These laws
and decrees have, according to him, extraterritorial effect.
Thus they too should find a proper place in the treatises on
private international law. In principle, however, substantive
rules directly regulating legal relations with international ele
ments do not belong to the domain of private international law
unless they are introduced as unified substantive civil law by
appropriate international agreements (1).
Soviet writers are quite unanimous in their opinion as to the
function which the conflict rules have to perform. All of them
consider that the primary function of the conflict rules is to
define the limits of application of a foreign law in the USSR,
delimiting in this way the sphere of operation of the Soviet and
foreign legal systems. In this connection they oppose conflict
rules to su'Jstantive civil law, whose function they see as the
direct regulation of civil law relations, whereas a conflict rule
by itself does not tell us what rights and obligations arise be
tween parties. Where they speak of a regulatory function of the
conflict rules, they regard it as ar.. indirect regulation through
the medium of the substantive local or foreign law to which the
conflict rule refers or, as Orlova puts it: "The conflict rules
must be considered in conjunction with those substantive rules
to which they refer, because a conflict rule as such cannot be
applied. Only in connection with those substantive laws to which
it refers, does the conflict rule make a norm of behaviour, not
only for the courts as State agencies but also for the parties
of the legal relation complicated with international elements" (2).
The purpose pursued by Soviet private international law changes
with Soviet foreign policy, because, as Lunts says, "The
legal acts of a State in the field of private international law
(1) Lunts, 1 (1959), pp.25-26; see also: Voprosy, pp.1l-13; Lunts, 1955, p.90; Pereterskii,
1946, pp.17-30; Pereterskii, Krylov, 1959, pp.lO-ll.
(2) Orlova, 1960, p.ll; On this question as well as on the function of conflict rules see
also: Lunts, 1949, pp.17,78,87-90; Lunts,l959, p.l37; Pereterskii, Krylov, 1940, pp.7-8,
37; Pereterskii, Krylov, 1959, pp.l0-ll; Pereterskii, 1946, pp.8-9; Krylov, 1930, pp.11,
22; Stalev, p.41.
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