The Development of Human Rights Protection in Cross-border Personality Rights and Tort Conflict Laws

Personality rights are basic rights related to human dignity in the concept of human rights protection,and respect for personality rights is the basic prerequisite for safeguarding other human rights.Human rights protection exerts a profound impact on the value of legislation and enforcement practices of private international laws in the field of cross-border personality rights infringement in various countries,which is mainly manifested in the integration of substantive justice and the humanistic care concept of protecting the rights of vulnerable groups into formal justice,and expands the development space of human rights protection ideas in cross-border personality rights and tort conflict laws.the diversity of human rights protection values determines that cross-border personality rights infringement may lead to conflicts between personality rights and other basic rights,such as freedom of speech.to reconcile such conflicts,a workable method is to prioritize personality rights protection in accordance with the hierarchy of rights theory in the value judgment of public order reservation or to clarify the limits of the right holder’s tolerance obligation through the limited application of the principle of proportionality.China’s current cross-border personality rights and tort conflict law can optimize the protection of the rights of vulnerable groups by diversifying the options of available legal methods,and establish a balancing mechanism between personality rights and freedom of speech,so as to improve China’s legal protection system for human rights in the field of foreign-related civil and commercial affairs.

Comments on the Chinese Law of Conflict of Laws Applicable to Trusts： In Comparison with the U.S. Law and the Hague Convention

China has entered a new era represented by the newly established China （Shanghai） Pilot Free Trade Zone, in which further reform and development of its financial system and capital market are highly prioritized. The trust as an important vehicle in development of the financial market in China as well as in the world will play an important role, and there will be more foreign elements involved in Chinese trusts. The Law of the People＇s Republic of China on Application of Laws in Civil Relations with Foreign Elements provides rules, in its article 17, on the application of laws to trusts, which symbolizes the formal creation of rules of conflict of laws in China in this area. However, it seems to cause more problems than it may resolve. For example, it may not always be possible for the parties to determine the appli- cable law through consultation and agreement, and the parties＇ right to choice of law should not be without limitation either. By allowing judges to choose from ＂the law of the situs where the trust property is situated＂ and ＂the law of the situs where the trust relationship occurred＂ in the absence of an effective choice of law by the parties may lead to a situation contrary to existing laws and may create uncertainty for the parties as well. This paper analyzes this article 17 by comparing it with the conflict law rules adopted in the United States and by the Hague Convention, identifies problems, and seeks to find solutions in order to promote the healthy development of the trust system in China.