T DEL T CARIBBEAN

UNIVERSITY
SCHOOL T OF T LEGAL AND POLITICAL SCIENCES

RACE T OF T RIGHT

ISSUE:

Unit III. Public Order and Fraud of the Law

SUBJECT:

PRIVATE INTERNATIONAL LAW II

PRESENTED BY :

SAMMY RODRIGUEZ DOMINGUEZ

FACILITATOR:

DR. MIGUEL TAPIA

SANTO DOMINGO, NATIONAL DISTRICT, REP. DOMINICAN

MAY 31, 2018
 Unit III. Public Order and Fraud of the Law
3.1 Definition of public order.

Public order is that constituted by laws that concern the community, and that
equally benefit everyone, written in the interest of everyone and not in the
interest of each individual.

Public order, according to Goldsehmidt, has always aroused controversies and

has acquired a series of different meanings over the years, when it is analyzed
under the gaze of scholars of the subject. However, it should be noted that all
authors agree in considering it a mechanism for limiting the application of
foreign law in a given legal system.

Regarding its characteristics, public order has to be classified as follows: a)

relativity/inslability; and b) contemporaneity.

In this way, the concept of public order is relative, unstable, varying in time and
space. Due to this differentiating characteristic, the law enforcer is obliged to be
attentive to the state of the situation at the time in which he will judge the issue,
without taking into account the prevailing mentality at the time in which the
events occurred. Thus, the application of a foreign law will only be denied if it is
contrary to the public order in force in the forum at the time the case is being
tried.

3.2 Opinions on public order in domestic law and international law.

For its scope, we will first undergo a brief exposition of definitions established
by certain doctrinaires on the matter:

In this regard, BASADRE relates it under the watchful eye of three categories of
possible laws:

a) Private laws: applied only with the expression of the will of the parties, within
a scope of private will.
b) Laws of internal public order: are the laws located outside the autonomy
of the will and are inspired by the need that the State has to protect the
nationals or domiciled people who form its civil society, by virtue of
considerations completely inapplicable to foreigners or residents. The laws of
internal public order are enacted only for nationals or domiciled citizens,
according to the legal system of each country and follow them wherever they
move, they follow the individual and the private legal entity outside the territory.
These laws always deserve the description of personal. Therefore, these laws
do not operate as much with respect to foreigners not domiciled in a given
country as they do with residents and non-residents. Well, residence does not
constitute a sufficient legal title for the application of legal norms.
c) Laws of international public order: in their absolute and imperative
character within the territory, with demonstrated force both for citizens and for
all foreigners located in a country, even if it were only momentary. The laws of
international public order refer to all those that have as their object the State
and constitute its legal system to the extent that infringing them or failing to
apply them is equivalent to harming sovereignty and destroying its basic
foundations. They are therefore applied to all those who reside in the territory,
whether national or foreign, domiciled or transient.
Regarding internal public order, MONROY considers that it is an expression,
reserved to strict internal law. In contrast to international public order, which
supposes a law that is opposed to the effectiveness of foreign law and binds
nationals and foreigners. This is inappropriate because there are not two public
orders, there is only one for nationals and foreigners.

3.3 The effects of public order.

General Effect, Negative and Positive

The general effect of the public order of private international law lies in the non-
application of normally competent foreign law (negative effect) and its
replacement by the law of the forum (positive effect).

Faded Effect

Public policy does not oppose the effects in the forum of a right acquired abroad
pursuant to the competent foreign law under the conflict rule of the forum,
although it would oppose the acquisition of that right in the forum.
Reflection Effect

Example:

Two people of Polish nationality get married in Belgium.

The Belgian conflict rule, in matters of marriage, would lead to the application of
the law of the common nationality of the spouses, that is, Polish law.

For some reason, the marriage would be void under Polish law but, because it
is contrary to Belgian public policy, the normally competent law, i.e. Polish law,
is not applied and is instead replaced by the law of the forum, that is, Belgian
law.

Consequently, the marriage would be valid under Belgian law.

Subsequently, a French judge examines the validity of said marriage.

The French conflict rule, in matters of marriage, would lead to applying the law
of the common nationality of the spouses, that is, Polish law.

The marriage would be void under Polish law but, as it is contrary to French
public policy, the normally competent law, that is, Polish law, is not applied and,
instead, could be replaced by the law of the forum, i.e. that is, French law.

However, the French judge considers the marriage valid in light of Belgian law,
applied as a result of Belgian public order that rejected the application of Polish
law.

Thus, the legal effects of rights acquired abroad under foreign public policy are
recognized in France.

3.4 General notion of fraud against the law.

In general, all fraud involves the performance of an intentional act, evading a

legal provision or agreement, ignoring another's right or harming a third party.
From a criminal point of view, fraud always involves bad faith, as in the case of
deception in the sale of goods. From the point of view of Civil Law, any legal act
that, although valid in itself, is granted with the purpose of avoiding the
application of a legal provision can be considered fraudulent; such as the
intention to declare a common good as one's own property.

In the field of Private International Law, the notion of fraud against the law
seeks to punish cases in which the parties have improperly obtained an element
of connection with a legal system that is not the one that normally corresponds
to them, in order to avoid the compliance with certain provisions of its own
legislation or to avail itself of more favorable provisions of foreign legislation.

Fraudulent connection to a foreign legal system can occur in many and very
diverse cases, referring to family relationships and especially divorce, the form
of acts and inheritance law, among others. There are countless situations in
which fraud against the law can occur. The most common of them is that of the
fictitious relationship obtained with the purpose of obtaining a divorce through a
change of nationality or address. This same fraudulent change may have the
purpose of carrying out a legitimation or an adoption, of making a free will when
forced inheritance applies in the country of origin, or of contracting marriage to
avoid impediments of its own law.

Fraud can also occur in contractual matters, when the parties choose a
connecting element that is foreign to the essence of the contract. In the United
States, legal decisions regarding usurious contracts that the parties make
depend on the legislation of a State that authorizes a higher rate of interest

Definition

The case of fraud against the law is that a person fraudulently manages to
place himself in a situation such that he can invoke the advantages of a foreign
law, which he normally could not resort to. The classic example is that of two
spouses who, because they belong to a country where divorce is not allowed,
become naturalized in another country that does accept it, and once
naturalized, they divorce and invoke a new situation in the country of origin. The
notion of fraud against the law is a remedy and “its purpose is to establish a
sanction for such actions and a means of preventing the application of foreign
law, when someone, through fraud, has placed themselves in a position to
invoke it, acquiring nationality. “French only to get divorced.” Fraud of the law is
known by various names: fraudm legis, fraud a la loi, frode alla legge, evasion
of law.

The doctrine of fraud constitutes an exception to the validity of acts verified

abroad, if any of the parties acted with the clear intention of evading the effects
of local law.

Fraud is nothing other than the fact of frustrating the law, or the rights that
derive from it; that is, the act of circumventing, evading or nullifying the
provision of the law, or usurping what belongs to us by right.

3.5 Elements of fraud against the law.

The concept of fraud has two elements that make it up: the animus and the
corpus. The first is the subjective element, the intention to evade legislation to
which a person is ordinarily subject. The second is the materialization of the
fraudulent purpose, its externalization through the real change of a connecting
factor. The definition offered by the Chilean author Duncker Biggs points out
these extremes: fraud consists of voluntarily and consciously evading a certain
law and placing oneself under the rule of another, through the effective change
of some of the connecting factors.

3.6 The effects of fraud on the law.

Once we are certain that we are facing a fraud of law, a main effect will occur:
the rule that we have tried to evade will be applied. Furthermore, it may cause
nullity or provide a different effect in the case of contravention.

Regarding the sanction of fraud against the law, there are doctrinal
controversies. Some believe that both the "act" committed fraudulently and its
"legal effects" should be declared null and void. Others believe, however, that
the sanction should be only with respect to "legal effects."

We have to see reality, fraud on the law cannot be punished by questioning the
validity of a legal act considered legitimate by the foreign authority that
protected it.
In the case of the Princess of Bauffremont, regarding the new nationality and
the second marriage, there was a dilemma.

While for German law the change of nationality and the celebration of the
second marriage were valid; Under French law, such acts were void.

Well, to change nationality, the princess required the express authorization of

her husband; and as for the second marriage, it is practically a legal
impossibility, since there was an express prohibition on contracting second
marriages.

Consequently, the jurisdictional power of the Judge is limited to his own legal
system, to his own territorial domain. Thus, the French courts understood it. In
this sense, these Courts do not question the validity of said acts in light of
German law. Instead, they are situated from the point of view of French law.

Not finding said acts valid, but having verified that said acts were intended to
escape the prohibitions of French law. The Courts decide to declare both said
acts and their legal effects null and void.

Now, the decisions of the Forum Court are not valid outside its territory, so their
legal effects, that is, nullities, will be limited to the territory of the country of the
Forum Judge.

3.7 Relationship between fraud against the law and public order.

For BARTIN, the concept of fraud is included in public order. Mandatory laws
are not subject to the autonomy of the will, and the fraudulent export of a right is
inadmissible; When this occurs, a penalty must be applied.

NIBOYET believes that fraud is a necessary instrument for the law to preserve
its imperative nature against those who resort to a different law with
inadmissible intentions.