Act XXVIII of 2017

on private international law

CHAPTER I

GENERAL PROVISIONS

1 Scope of the Act

1. § This Act shall determine

a) which state's law shall be applied,

b) upon which rules the Hungarian courts establish their jurisdiction and which procedural rules they follow, and

c) the conditions under which decisions of foreign courts can be recognised and enforced in private law relationships containing foreign elements.

2. § The provisions of this Act shall apply in matters that do not fall under the scope of a directly applicable legal act of the European Union with general application or an international treaty.

2 Interpretative provisions

3. § For the purposes of this Act:

a) in the absence of any provision to the contrary, the term court shall also accordingly cover other authorities acting in civil matters,

b) the habitual residence of an individual is the place where, based on all the circumstances of the given legal relationship, the actual centre of the individual's life is; when determining this, the facts indicating the intention of the individual concerned shall also be taken into account,

c) domicile is the place where the individual person resides permanently or with the intention of permanent settlement.

3 Classification

4. § (1) When deciding which conflict-of-law rule is to determine the law applicable to the factual situation, the concepts of Hungarian law shall be followed.

(2) Any legal institution unknown to Hungarian law shall be classified pursuant to the foreign law regulating that legal institution, with special regard to its function and purpose served in the foreign law.

(3) If a foreign legal institution is not unknown to Hungarian law but its function or purpose is different from what it is under the foreign law, then the foreign law shall also be taken into account in the course of classification.

(4) Paragraphs (1) to (3) shall apply accordingly to the determination of jurisdiction and the recognition and enforcement of foreign decisions.

4 Renvoi

5. § (1) If the conflict-of-law rules of this Act determining the applicable law refer to a foreign law, the substantive law rules of the foreign law that directly govern the matter shall apply.

(2) If, by virtue of this Act, the applicable foreign law is determined on the basis of nationality and the conflict-of-law rule of the foreign law

a) refers back to Hungarian law, the Hungarian substantive law shall apply;

b) refers onwards to a different foreign law, the substantive law rules of that law shall apply.

5 States with multiple legal systems

6. § (1) If, pursuant to this Act, the law of a state consisting of multiple territorial units, where each territorial unit has its own legal system, applies to the factual situation, the law of the territorial unit to be applied shall be determined by the interterritorial conflict-of-law rules of the given state.

(2) If, pursuant to this Act, the law of a state that has different legal systems with regard to different groups of persons applies to a factual situation, the interpersonal conflict-of-law rules of the given state shall determine the law to be applied.

(3) If there are no interterritorial or interpersonal conflict-of-law rules in the applicable law or their content cannot be established, or when those rules do not lead to the determination of one applicable law, the legal system of the given state having the closest connection with the factual situation shall apply.

6 Application of foreign law and establishing its content

7. § (1) The court shall apply the foreign law ex officio.

(2) The court shall interpret the foreign law in accordance with the rules and practices of that foreign law.

8. § (1) The court shall establish the content of the foreign law ex officio.

(2) The court may use any means to establish the content of the foreign law, in particular the submissions of the parties, expert opinions or the related information provided by the minister responsible for justice (hereinafter "the Minister").

(3) If the content of the foreign law cannot be established within a reasonable period of time, the Hungarian law shall apply. If the given factual situation cannot be assessed upon the rules of the Hungarian law, the foreign law having the closest connection to the applicable law shall apply.

7 Choice of law

9. § (1) Unless otherwise provided by this Act

a) the choice of law shall be explicit,

b) the law of the state which would be applicable to the given relationship should the choice-of-law agreement be established and valid, shall apply to the establishment and validity of that agreement; however, the choice of law shall also be deemed established and valid if it complies with the law of the state where the agreement has been concluded.

(2) The choice of law may not violate the acquired rights of third parties.

8 General escape clause

10. § (1) If, based on the circumstances of the case, it is obvious that the case is manifestly more closely connected with another country's law than the law determined by this Act, that other law may exceptionally be applied. The court shall decide on this within no more than thirty days from the receipt of the defendant's response.

(2) Paragraph (1) shall not apply if the applicable law was determined by choice of law.

9 General auxiliary rule

11. § If this Act does not contain any provision on a legal relationship which falls under its scope, the law of the state having the closest connection with that legal relationship shall apply.

10 Public policy clause

12. § (1) The foreign law determined by this Act shall be deemed contrary to Hungarian public policy and therefore shall not be applied if the result of its application in the given case would clearly and seriously violate the fundamental values and constitutional principles of the Hungarian legal system.

(2) If the violation of public policy cannot be averted in any other way, the provisions of the Hungarian law shall apply instead of the refused provisions of the foreign law.

11 Imperative rules

13. § (1) Irrespective of the law determined by this Act, those provisions of the Hungarian law shall apply, from the content and purpose of which it can clearly be established that they are subject to unconditional enforcement in legal relationships falling under the scope of this Act (imperative rules).

(2) The provisions of the law of any other state subject to unconditional enforcement may be taken into account if they are closely connected with the factual situation and are of decisive importance regarding its assessment.

12 Change in the applicable law

14. § Change in the circumstances determining the applicable law shall only have effect on legal relationships established validly according to the law applicable prior to the change if this Act expressly provides so.

CHAPTER II

NATURAL AND LEGAL PERSONS

13 The individual as subject of law

15. § (1) The legal capacity, the capacity to act and the personality rights of individuals shall be assessed pursuant to their personal law.

(2) The personal law of an individual shall be the law of the state of which the individual person is a national.

(3) If the individual has multiple nationalities, and one of those nationalities is Hungarian, his personal law shall be the Hungarian law, unless the individual has a closer connection with his other nationality.

(4) If an individual has multiple nationalities, none of which is Hungarian, his personal law shall be the law of the state of his nationality with which he is most closely connected with respect to the relevant circumstances of the given case.

(5) The personal law of an individual who has multiple nationalities, none of which is Hungarian and has no closer connection with any of his nationalities, or whose nationality cannot be established; furthermore, the personal law of a stateless person shall be the law of the state where he has his habitual residence.

(6) If the personal law of an individual cannot be established based on paragraphs (2) to (5), the Hungarian law shall apply.

(7) The Hungarian law shall apply to the legal relationships specified in paragraph (1) of persons having the right to asylum or tolerated status in Hungary.

16. § (1) The names of individuals shall be determined by their personal law or, upon request, by the Hungarian law.

(2) If the individual person has multiple nationalities, he may choose the law of any of his nationalities to apply to his birth name.

(3) At the joint request of the parties, the law of the nationality of either spouse or the Hungarian law shall apply to the marital name. In the absence of a joint request, section 27 shall apply.

(4) If the marriage is dissolved or declared invalid, the law based on which the marital name was established shall apply to names.

(5) The Hungarian national's birth and marital name registered validly in accordance with the law of another state shall be recognised in Hungary if the Hungarian national concerned or his spouse is also a national of that other state, or if the habitual residence of the Hungarian national concerned is in that state. Names contrary to Hungarian public policy shall not be recognised.

17. § (1) Those who have no capacity to act or have limited capacity to act pursuant to their personal law shall be deemed to have capacity to act with respect to everyday contracts of minor importance that do not require special consideration and are concluded and fulfilled in Hungary, provided that the person would have capacity to act pursuant to the Hungarian law.

(2) Those who have no capacity to act or have limited capacity to act pursuant to their personal law, but would have capacity to act pursuant to Hungarian law, shall be deemed to have capacity to act with respect to their other property transactions as well, if the legal consequences of such transaction are to occur in Hungary.

18. § (1) The law of the state where the person concerned has his habitual residence at the time of the assessment of the underlying facts shall apply to the conditions, establishment, modification, termination or legal effects of placement under legal custodianship or of other protective measures not affecting the capacity to act of a person of full legal age, as well as to the legal relationships arising therefrom.

(2) If it is justified by the interest of the person of full legal age concerned, the proceeding court may exceptionally apply or take into account the law of the other state with which the case has a closer connection.

19. § (1) The provisions of section 18 shall apply accordingly to the establishment, validity, scope, modification and revocation of juridical acts made by persons of full legal age having capacity to act concerning the future limitation of their capacity to act or the lack of their ability to protect their interests, with the proviso that, with regard to those juridical acts, the law of the state where they have their habitual residence when making the juridical act shall apply.

(2) By way of derogation from paragraph (1), the person of full legal age having capacity to act may choose, in a written statement,

a) the law of the state of his nationality,

b) the law of the state where he had his habitual residence earlier or,

c) with regard to a particular asset, the law of the state in the territory of which the asset is located.

20. § The law of the state of the court appointing the legal custodian shall apply to the representation of a person prevented from taking care of his own affairs and to ad hoc legal custodianship.

21. § (1) The personal law of the missing person shall apply to declaring that the person is presumably dead or missing, and to the establishment of the fact of death.

(2) If the personal law of the missing person is not the Hungarian law, the Hungarian law shall apply if there is a legal interest in Hungary.

14 Legal persons

22. § (1) The personal law of a legal person shall be the law of the state in the territory of which the legal person has been registered.

(2) If the legal person has been registered in accordance with the laws of more than one state, or if registration is not required according to the law of the state of the seat indicated in the instrument of incorporation, the personal law of the legal person shall be the law of the state where the seat indicated in the instrument of incorporation is located.

(3) If a legal person does not have the seat indicated in its instrument of incorporation or has more than one seat, and none of those has been registered in accordance with the law of any state, the personal law of the legal person shall be the law of the state in the territory of which it has its central place of administration.

(4) The legal status of a legal person, in particular

a) its legal capacity,

b) its formation and termination,

c) its statutory and organisational representation,

d) its personality rights,

e) its organisation,

f) the legal relationships between its members,

g) the legal relationships between the legal person and its members, and

h) the liability of the legal person, its members and executive officers for the obligations of the legal person

shall be assessed pursuant to the personal law of the legal person.

(5) The provisions of this section shall also apply accordingly to legal entities without legal personality.

15 Violation of personality rights

23. § (1) If personality rights have been violated, the law of the habitual residence of the aggrieved party or, for legal persons, the law of the seat indicated in their instrument of incorporation shall apply. Whether a violation occurred shall be assessed, and the consequences of the violation shall be established in accordance with that law.

(2) Anyone whose personality rights have been violated may choose, not later than in the preparatory stage of the civil procedure and within the time limit set by the court:

a) the law of the state where the centre of his interests is located,

b) the law of the state where the violating party's habitual residence or, for legal persons, the seat indicated in the instrument of incorporation is located, or

c) the Hungarian law.

(3) Paragraphs (1) to (2) shall also apply if there is a risk of violation of personality rights.

CHAPTER III

FAMILY LAW

16 General rules

24. § The common nationality of the spouses shall be the nationality they both share. If the spouses have more than one common nationality then, for the purposes of this Chapter, the common nationality with which they are most closely connected based on all the circumstances of the case shall apply.

25. § Family law relationships concerning the child shall be governed by the Hungarian law if that is more favourable for the child.

17 Specific rules on marriage

26. § (1) The marriage shall be valid only if, at the time of the marriage, the conditions laid down in the substantive law of both parties' personal laws are satisfied.

(2) The law in force at the place and date of the marriage shall apply to the formal requirements of the validity of the marriage.

(3) The provisions relating to the conclusion of marriage and its validity shall also apply accordingly in matters of establishing the existence or non-existence of marriage.

(4) A marriage shall not be concluded in Hungary if there is an insurmountable obstacle to it pursuant to the Hungarian law.

27. § (1) The personal and property relations between the spouses shall be governed, in accordance with the differences specified in section 16 (3) to (5), by the law of the state of which both spouses are nationals at the time of assessment.

(2) If, at the time of assessment, the spouses have different nationalities, the law of the state in the territory of which the spouses have their shared habitual residence or, in the absence of such, where the spouses had their last shared habitual residence, shall apply.

(3) If the spouses had no shared habitual residence, the law of the state of the proceeding court shall apply.

28. § (1) The spouses may choose the law applicable to their property relations, provided that it is one of the following laws:

a) the law of the state of which one of the spouses is a national at the time of the conclusion of the agreement,

b) the law of the state in the territory of which one of the spouses has his habitual residence at the time of the conclusion of the agreement, or

c) the law of the state of the proceeding court.

(2) Parties to be married shall also be entitled to the choice of law.

(3) The choice of law should be made not later than in the preparatory stage of the civil procedure and within the time limit set by the court.

(4) Unless the spouses agree otherwise, the choice of law to be applied to the property relations between them shall have legal effect only for the future.

29. § A matrimonial property contract shall be valid as to form also if it complies with the law of the place where it has been concluded.

30. § Spouses may choose the applicable law referred to in Articles 5 to 7 of Council Regulation (EU) No 1259/2010 not later than in the preparatory stage of the civil procedure and within the time limit set by the court.

18 Family status

31. § (1) The personal law of the child applicable at the time of his birth shall apply to the establishment of paternity or maternity, as well as in the matter of rebuttal of the presumption of paternity.

(2) The acknowledgement of paternity shall be assessed in accordance with the personal law of the child applicable at the time of the acknowledgement, while the acknowledgement of a child already conceived but not yet born shall be assessed in accordance with the personal law of the mother applicable at the time of the acknowledgement. The acknowledgement shall not be deemed invalid for formal reasons if it is formally valid either according to Hungarian law or the law in force at the place and date of the acknowledgement.

32. § If, according to the law applicable pursuant to section 31, the paternity status is unfilled, the law of another state connected closely with the case shall apply if it is more favourable for the child in that respect.

19 Adoption

33. § (1) Adoption shall only be valid if its conditions are met in accordance with the personal law of the adoptive parent and the person to be adopted at the time of adoption.

(2) The personal law of the adoptive parent as at the time of adoption or its termination shall apply to the legal effects of adoption and to the termination of adoption and its legal effects.

(3) If the adoptive parents are spouses,

a) the law of the state of the common nationality of the spouses at the time of adoption or its termination, or in the absence of such,

b) the law of the state in the territory of which the spouses had their shared habitual residence at the time of adoption or its termination, or in the absence of such,

c) the law of the state of the proceeding court

shall apply to the legal effects of adoption, the termination of adoption and its legal effects.

20 Legal relationship between parent and child, guardianship

34. § (1) The legal relationship between parent and child and the guardianship, with the exception of the matter of becoming of full legal age and names, shall be governed by the law of the state of the proceeding court.

(2) The proceeding court may exceptionally apply or take into account the law of another state with which the case is connected closely if it is justified by the interest of the child.

CHAPTER IV

COHABITANTS, REGISTERED PARTNERS

21 Cohabitants

35. § (1) The establishment, termination and legal effects of cohabitation shall be governed by the law of the state of the cohabitants' common nationality.

(2) If the cohabitants have different nationalities, the law of the state shall apply in the territory of which the cohabitants have their habitual residence or, in the absence of such, where they had their last shared habitual residence.

(3) If the shared habitual residence of the cohabitants cannot be established, the law of the state of the proceeding court shall apply.

(4) The provisions of section 24 shall apply accordingly to the common nationality of cohabitants.

36. § The cohabitants may choose the law to govern their property relations. Section 28 shall apply accordingly to the choice of law of cohabitants.

22 Registered partners

37. § (1) With the exceptions specified in this section, the provisions of sections 26 to 29 shall apply accordingly to the establishment and validity of registered partnership and its legal effects, with the exception of names.

(2) The establishment of registered partnership shall not be prevented and its validity shall not be affected if the personal law of the prospective registered partner does not recognise the legal institution of same-sex registered partnership, provided that:

a) the prospective registered partner of other than Hungarian nationality proves that there would be no obstacle to his marriage under his personal law, and

b) at least one of the prospective registered partners is a Hungarian national or has his habitual residence in Hungary.

(3) In the cases specified in paragraph (2), the Hungarian law shall apply to the legal effects of registered partnerships.

(4) The provisions of section 24 shall apply accordingly to the common nationality of registered partners.

38. § (1) The law of the state shall apply to the termination of registered partnership

a) in the territory of which the registered partners have their habitual residence at the time when the action or request for the termination of the registered partnership is brought, or in the absence of such

b) in the territory of which the registered partners had their last habitual residence, if it did not end more than one year before the action or request for the termination of the registered partnership was brought, provided that one of the registered partners still resides in that state at the time when the action or request is brought, or in the absence of such

c) of which both registered partners were nationals at the time when the action or request was brought.

(2) Where the applicable law cannot be determined in accordance with paragraph (1), and in the cases specified in section 37 (2), the proceeding court shall apply the law of its own state.

CHAPTER V

RIGHTS IN REM

23 General rules

39. § (1) Unless provided otherwise in this Act, ownership and other in-rem rights, including lien and possession shall be governed by the law of the place where the thing is located.

(2) The law of the place where the thing is located shall be the law of the state, in the territory of which the thing is located at the time when the fact giving rise to the in-rem effect emerges.

(3) If the thing is a component or accessory of another thing, the law of the place where the primary thing is located shall be applicable; the law which is most closely connected with it shall apply to any other material relation between things or aggregations of things.

40. § The applicable law shall determine, in particular,

a) the legal characteristics of the thing,

b) the content of the in-rem right,

c) the ranking of securities encumbering the thing,

d) the beneficiary of the in-rem right,

e) the establishment, existence and termination of the in-rem right, and

f) the effect of the in-rem right towards third parties.

41. § (1) If, following a change in the law relating to the in-rem right, a movable property is transferred permanently to the territory of another state, the previously acquired rights can be recognised in accordance with the law of the new location of the thing.

(2) If the legal effect of acquiring the in-rem right did not arise at the place where the thing was located previously, and the movable property is transferred permanently to another state, the acquisition of the right shall be governed by the law of the latter state.

(3) The acquisitive prescription of a movable property shall be governed by the law of the state in the territory of which the thing was located at the time of the expiry of the prescription period.

(4) Acquisitive prescription shall not be interrupted by a change in the location of the thing.

24 Special rules

42. § (1) In-rem rights relating to registered vessels or aircraft shall be governed by the law of the state, under the flag or insignia of which the vehicle travels.

(2) In-rem rights relating to railway vehicles shall be governed by the law of the state where the vehicle was put into service.

43. § (1) In-rem rights relating to movable property in transit shall be governed by the law of the state of destination. The sale, putting into storage or pledging of movable property in transit without the intention of the owner or the party entitled to avail of it shall be governed by the law of the state where the thing was located at the time the measure was taken.

(2) In-rem rights relating to objects of personal use carried by the passenger shall be governed by the personal law of the passenger.

44. § (1) Security rights in rem established by registration shall be governed by the law of the state where the security rights registry is kept.

(2) If registration is not required for the establishment of a security right in rem or the applicable law cannot be determined pursuant to paragraph (1), the security right in rem shall be governed by the personal law of the debtor.

(3) The legal effects of retention of title relating to movable properties transferred with the retention of title shall be governed by the law of the state where the thing is located, unless the parties choose the law of the state where the place of destination of the transferred movable property is.

(4) Securities relating to payment accounts, bank deposits and dematerialised securities shall be governed by the law of the state where the registry or account containing the security is kept or where the central depository system is located.

(5) Securities established on claims shall be governed by the law chosen by the parties or, in the absence of such, the law of the state where the security is registered, while unregistered securities shall be governed by the personal law of the debtor.

45. § (1) To govern in-rem effects relating to contracts for the transfer of ownership of movable properties, the parties may choose the law of the state where the thing is located or where the place of destination of the thing under the contract is.

(2) If the corporate (business) assets are transferred as a whole, the parties may choose the personal law of the legal predecessor to govern in-rem effects, with the exception of immovable properties.

(3) The choice of law should be made not later than in the preparatory stage of the civil procedure and within the time limit set by the court.

46. § (1) If a thing considered to be part of the cultural assets of a state leaves the territory of that state in a manner which is unlawful under the law of that state at the time of exit, the law of that state, or the law of the state in the territory of which the given thing is located at the time of the assessment of the ownership claim, shall govern the ownership claim made by the state, subject to the choice of the state enforcing the ownership claim.

(2) If the law of the state which considers the unlawfully taken thing a part of its cultural assets does not provide protection to the possessor of the thing who is acting in good faith, the possessor acting in good faith may request the protection of the law of the state in the territory of which the thing is located at the time of the assessment of the ownership claim.

47. § (1) Subject to the choice of the original owner, the law of the state shall govern the ownership claim for the thing taken unlawfully from his possession, in the territory of which the thing was located at the time of its disappearance, or the law of the state in the territory of which the thing is located at the time of the assessment of the ownership claim.

(2) If the law of the state in the territory of which the thing was located at the time of its disappearance does not provide protection to the possessor who is acting in good faith, the possessor acting in good faith may request protection in accordance with the law of the state in the territory of which the given thing is located at the time of the assessment of the ownership claim.

CHAPTER VI

INTELLECTUAL PROPERTY RIGHTS

25 Copyright and industrial property rights

48. § The establishment, content, termination and enforcement of copyrights shall be assessed in accordance with the law of the state in the territory of which the protection is sought.

49. § The establishment, content, termination and enforcement of industrial property rights shall be assessed in accordance with the law of the state in which protection was granted and the application was filed.