The Research On Protection Of The Weak In Law Of The Application Of Law For Foreign-related Civil Relations Of The PRC

The weak exists in the society objectively, and the sociologist defines the weakas: From a sociological perspective, the weak in the society is a special social groupin the allocation of social resources with poor economic interests, low level of lifequality and fragility of endurance capability. The law as a means of adjusting socialrelations, it also pays close attention to the weak. From the legal perspective, theprotection to the social weak has mandatory, and the society weak is difficult toprotect their own interests because they lack of judicial resources which due tovarious reasons. To protect the weak by the law, we should consider these two aspects.With the development of globalization, the weak is also in the international civil andcommercial activities, conform to the trend of the historical development of privateinternational law, the principle of protecting interests of the weak has developed, it isnot only has the characteristic with legal subject, but also has the attribute of privateinternational law, private international law defines the weak as:in the foreign-relatedcivil and commercial legal relationship, the side which its interest is difficult toachieve and need law to give special protection due to it has difficulty in efficient useof judicial resources caused by the natural or social reasons. The weak in theinternational private law has three characteristics which are the relativity of weakidentity, the long-term existence of the weak identity and weak identity legality.The interests of the weak protection principle is a modern private internationallaw established, in the traditional conflict of laws, there is no space for thedevelopment of the interests of the weak principle, but to the modern privateinternational law, the protection of the weak interest principle has also experiencedthe changes from the protection of the interests of the weak concept to protect theinterests of the weak. The interests of the weak protection principle is not only showsthat the legislation of private international law concepts is already change fromformal justice to material justice, but it also embodies the core of humanistic spiritvalue of private international law. The interest of the weak protection principle is alsoin line with the characteristics of the basic principles of private international law, as one of the basic principles of private international law has its Rationality.Over look The status of global legislation from the principle of protectinginterests of the weak, the scope of the weak protection of the interests in the privateinternational law mainly in the field of foreign-related families, foreign-relatedcontract and foreign-related tort, the specific foreign-related legal relationship whichare protected include: adoption, guardianship, maintenance, consumption (consumer)contract, employment contract, insurance contract, technology transfer contract, tort,personality infringement, the infringement of the foreign-related road traffic accidents.Protection ways or methods are mainly used directly applicable law protection, usingthe most closely linked principle to protect, using the party autonomy principle andother protection method which conducive to the protection.Comparison of China in2010April the formal implementation of the “Law ofthe Application of Law for Foreign-related Civil Relations of the People’s Republicof China", the scope of protection and the protect ways are not comprehensiveenough. Our country “the Application of Law for Foreign-related Civil Relations "stipulated in the7foreign-related legal relations protection of the weak interest,including personal and property relations of parents and children, dependencyrelations, guardianship, the relationship between consumer contract, labor contract,product liability and violating the personality by the way the media. The Protectionmethod is mainly through the combination of the principle of the most significantrelationship, party autonomy principles and conducive to the principles and so on.The attitude to the interests of the weak protection principle of our legislation is thebasic acknowledge this idea, but throughout the whole " the Application of Law forForeign-related Civil Relations ", we have to consider that this principle is notfundamental principles of China’s private international law, even as a general legalprinciple of private international law of China is also a little far fetched.Our country " the Application of Law for Foreign-related Civil Relations " has tobe perfect in the protection of the interests of the weak, we should consider thefollowing points: firstly, the principle of protecting interests of the weak identified asChina’s basic principles of private international law; secondly, to expand the scope ofthe protection of the weak interest and the protection method; thirdly; complete the related system of protecting the interests of the principle of, such as the identify thesystem of foreign law and through the legal aid means to protect the interests of theweak.This whole paper uses of the value analysis method, exploring the core value ofthe interests of the weak protection principle, and finding out the direction to takingmethods for our country. It uses the logic analysis method, sorting out the concept,characteristics and causes problems of protection of the weak interest principle;through empirical analysis, contrast the situation of legislation in China and find thedifferences, weigh the advantages and disadvantages, and puts forward somesuggestions to improve.