What is Qualification in Private International Law?

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, qualifications in private international law, and theories of private international law qualifications that are important to understand.

This article also discusses the advantages and disadvantages of the Lex Fori qualification theory and its exceptions. By reading this article, readers can understand the importance of private international law in overcoming legal problems involving foreign elements and making appropriate decisions in the qualification process.

Based on the provisions of Article 16 of Algemene Bepalingen (AB), the legal status and authority for Indonesian citizens are subject to Indonesian law wherever they are. This provision is interpreted analogously for foreign citizens in Indonesia. However, with the abolition of population classification in Indonesia, the differentiation of residents based on citizenship results in legal relations that were initially legal relations between groups in Indonesia changing into international legal relations due to the presence of foreign elements.

Objectives of Private International Law

According to Sunaryati Hartono, private international law aims to find answers to three main problems concerning legal events with foreign elements, namely: (1) which judge or court has jurisdiction?, (2) which law applies? (choice of law), and (3) when and to what extent should national judges consider the decisions of foreign courts.

This shows that the existence of this law is increasingly important and absolutely necessary. For example, there are problems of private international law such as marriage and divorce, international sales, dual citizenship issues, international adoption also allows for legal relationships that have foreign elements. It can be said that private international law is basically national private law for international issues.

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:

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

2. Lex Causae Qualification Theory (Extended Lex Fori)

This theory was pioneered by Martin Wolff. Qualification should be carried out according to the legal system from which this concept originates. The qualification action is intended to determine which rule of private international law of the lex fori is most closely related to the foreign legal rule that may be applied.

This determination must be made based on the results of the qualification carried out by taking into account the foreign legal system in question. After the juridical category of a legal event is determined in that way, only then can it be determined which rule of private international law of the lex fori will be used to point to the lex causae or which is closely related to the foreign law that should apply to resolve the case.

Qualification must be applied according to the size of the entire legal system related to the case. The purpose of this theory is to determine which rule of private international law of the lex fori is most closely related to the foreign legal rule that may be applied. This theory assumes that qualification must be carried out according to the system and size of the entire law relating to the case.

3. Autonomous Qualification Theory

This qualification is based on comparative law. The figures of this theory are Ernst Rabel from Germany and Beckett from England. This theory is basically based on their rejection of the assumption underlying a rule of private international law which only covers the internal law of the forum.

In this qualification action, the collection of facts must be carried out independently of its relation to a particular national legal system (autonomous). That is, in private international law, distinctive legal concepts should be developed that can apply generally and have the same meaning wherever they are. The provisions are adjusted to the distinctive notions of private international law, so they do not need to be identical to the notions in the judge's material law or foreign law.

4. Gradual Qualification Theory

This theory departs from objections to the theory of qualification based on lex causae alone, because what legal system or which law is to be established as lex causae must first be determined. This can only be done through the qualification process and the help of connecting factors. Objections to the Lex Causae theory led to the emergence of the gradual qualification theory.

Qualification according to the Gradual Qualification Theory is carried out in two stages, namely:

• The First Stage of Qualification or Primary Qualification, namely the Judge must find a rule of private international law or choice of law (lex fori) that will be used to determine the determining connecting factor. Qualification is carried out with an internal qualification system known to the lex fori, where this qualification is carried out to determine the lex causae.
• The Second Stage of Qualification or Secondary Qualification, namely if it is known that the law that should be applied is foreign law, then further qualification needs to be carried out according to the foreign law that has been found. In this second stage, all the facts in the case must be re-qualified based on the qualification system in the lex causae, then carried out with the internal qualification system known in the lex causae.

References

• Gautama, Sudargo. Introduction to Indonesian Private International Law. Jakarta: Bina Cipta, 2016.
• Hartono, Sunaryati. Fundamentals of Private International Law. Bandung: Binacipta, 1976.
• Purwadi, Ari. Basics of Private International Law. Center for Legal Studies and Development, Faculty of Law, Wijaya Kusuma University, Surabaya, 2016.
• Seto Hardjowahono, Bayu. Basics of Private International Law. Bandung: PT Citra Aditya Bakti, 2013.