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What is Qualification in Private International Law?

Dini Wininta Sari, S.H.

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13 Mar 2023 · 00:00 13 March 2023 00:00 WIB 7 minutes reading time: 7 minutes 21 read

Legal Literacy - This article discusses the importance of private international law in dealing with problems involving foreign elements. The discussion includes the objectives of private international law, qual...

What is Qualification in Private International Law?

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Table of Contents

Objectives of Private International Law
Qualifications in Private International Law
1. Lex Fori Qualification Theory (According to the Judge)
2. Lex Causae Qualification Theory (Extended Lex Fori)
3. Autonomous Qualification Theory
4. Gradual Qualification Theory
References

Section 2/3: Qualifications in Private International Law

Qualifications in Private International Law

The qualification problem is a problem that must be handled more specifically, because in legal cases of private international law, one always deals with the possibility of applying more than one system or rule of law from several different countries.

Through this qualification process, one will collect facts in the legal event and then classify them into a specific juridical category in relation to making legal decisions on legal issues.

Qualification is a logical thinking process to place certain conceptions, principles and legal rules into the applicable legal system. Qualification in private international law is important because it relates to the obligation to choose one of the legal systems relevant to the case at hand.

The important issue that arises in the qualification process of private international law is basically based on what legal system the qualification in a private international law case should be carried out. In order to answer this question, various theories of private international law qualification have emerged, as follows:

1. Lex Fori Qualification Theory (According to the Judge)

The proponents of this theory are Bartin from France and Franz Khan from Germany. The material law of the Judge is what should be used in this qualification. For example, when faced with the terms "marriage agreement", "domicile" and "tort", these terms are defined and interpreted based on the material law of the Judge himself.

Therefore, the advantage of this qualification theory is that it facilitates the settlement of a case because the law used is the material law understood by the Judge. However, on the other hand, the disadvantage of this theory is the injustice that may occur because there are measures that may not be in accordance with the foreign law that should be applied or even measures that are completely unknown in foreign law.

Legal concepts in the rules of private international law must be qualified in accordance with the internal-material legal concepts of the Judge's law itself. There are several exceptions to lex fori qualification, namely:

Qualification of citizenship (nationality);
Qualification of movable and immovable property;
Qualification with choice of law;
Qualification based on international conventions, if the country concerned participates in the convention;
Qualification of torts; and
Concepts used by international courts.