The Humanism Theory Of International Private Law

Law is static in relative sense, but the international civil and commercial law areadevelops rapidly. Any law document, even if it is a relatively perfect one, can hardlyperform the impossible mission to adjust the ever developing legal order ofinternational civil and commercial law. Any legal method has its insuperable limits.But it is just the limits and the eager to solve the limits prompt the basic theory ofinternational private law to develop and access to perfect during the reciprocalintegration. Along with the development of times and the repercussion of newtechnology revolution, the association of the whole international society has excludedthe limit of areas, the subjects of international private legal relationship has becomemultiple, the feature of the accidental of legal action space and the social value ofworshiping people have been confirmed and propagated, which calls for rules ofinternational private law to adjust itself accordingly.The introduction holds the view that international private law, which should actthe role of solving most international private law disputes, has lost its due respect andpassions in the time of frequent international associations happened. Although somepioneering researches have been made, most academic research concentrate on theintroduction and criticize of foreign theories. This introduction directly proposed the“humanism theory”, namely “to solve the international private disputes is the existingbasement of international private law; the core mission of international private law isto protect the private rights; weaken the influence of national sovereignty ininternational private law; elevate the status of ‘people’ in international private law andestablish the priority of the autonomy of will principle; the humanistic concern ofprotecting rights of the weak should seep into more dimensions of internationalprivate law; the general rules should leave space for escape clause and limit theapplication scope of the proximate connection principle; the judges and the clientsshould be given conflict rules bearing more certainty and predictability. Chapter I is named as the basic theory of “humanism theory”. It states the maincontent, the theoretical basis and the main idea of “humanism theory”. The“humanism theory” contends that the international private law, which is the disciplineof solving international private disputes, should hold the private person and theprivate rights as the center, should take the solving of disputes as the grounding,should set the autonomy of will and the weak protection as the basic principle. Thecore value of it should be the freedom and equality; its conflict rules should bedefinite, predictable, and not too flexible. When both clients are in the condition ofobvious inequality, the system of conflict rules should be designed to for the weak.And the escape clause could avoid case indifference and rectify the case unfair. The“humanism theory” contends that the choice of law should take the following order:first, the choice of clients should be respected; then if both clients have not chosenapplied laws, the applicable law directed by conflict rules should be respected; anddue to the case difference, when the applicable law directed by conflict rules mightproduce unfair, the discretion power should be entitled to judges and the escape clauseshould be allowed to applied. Certainly, the law chose by clients could not break themandatory provisions of the country which the court located, and the major publicinterest should also be observed.Chapter II is named as the values of “humanism theory”. This chapter followsthree main leads, which are the differences of people, the commons of people, and thehumanism based view, to explore the stems, the development, and basic values ofinternational private law. This chapter contends that due to varied politics, economics,cultures, histories, customs, and believed, nations and regions have different rules oncivil and commercial law which produce the conflicts of rules. That is howinternational private law was given birth to. Under the idea of “people should beequal”, the international private law must protect everyone equally which meansevery right should be protected and every will should be respected.“Humanismtheory” emphasizes that the values which goes through the autonomy of will principleand the weak protection principle are freedom and equality. Only when these twovalues are realized could the international private law complete the perfect connection between the formality justice and the substantial justice.Chapter III is named as the methodology of “humanism theory”. This chaptermainly discussed the two questions of why and how the foreign laws should beapplied, which are the most important theoretical question in the history ofinternational private law. Through analyzing the nature of international private law,which is the private law, and addressing private disputes and protecting private rightsmainly, this chapter contends that the reason of applying the foreign laws is to bettersolve private disputes and protect private rights. On how to construct the rules ofapplying foreign laws, this chapter come forth five principles: respect the will ofpeople namely the autonomy of will principle should be set; protect the rights ofpeople namely the proximate connection principle should be set; realize the equalprotection of people namely the weak protection principle should be set; respect thesubjective status of people namely the principle of beneficence should be set; balancethe profitable needs of people namely the escape clause should be set.Chapter IV is named as the rules of “humanism theory”. This chapter states therules of choosing applicable laws of international private law in detail. In internationalprivate disputes, the autonomy of will principle should be entitled the highest status,respecting the choices of clients and preventing judges using the proximate principleand the escape clause to rule out it, unless the choice of clients have not observed themandatory provision or the public interest of the nation of courts. In the general rulesof international private law, the proximate connection principle should be replacedwith the escape clause and the application scope of the former principle should belimited at the same time. The principle to protect the weak should be delivered to allareas of international private law, and the beneficial principle should be utilized topromote the effective civil behaviors, to realize the will of clients, and to protect themequally. Besides, it should be prudent to limit or expand the discretion power, becauseusually the judges have to apply laws through observing conflict rules, only whensuch application methods would severely jeopardize case justice could judges resortto discretion power and the escape clause. Chapter V is named as the practical theory of “humanism theory”. Apart fromresolving legal conflicts, international private law has a most important functionwhich is to protect the client rights of international private relationship. Nevertheless,the admission and prosecution of cases from other nations are indispensable factors inprotecting client rights in real. The judgment from the court is not the same as thearbitration rules, because it is hard to get the judgment acknowledged and performedby other nations without live international conventions. The “humanism theory” callsfor the proper use of jurisdictions through emphasizing its universal value. If the casecould be delivered to a court which has the proper jurisdiction, if the court could findthe proper applicable law and respecting the choice of both clients, the judgment willbe admitted and performed without risking being a dead note.The rest part of the dissertation points out that the tradition and the breakthroughwill become the key words in international private law area. It is just during therecognition and improvement of fundamental theory, the international private law hasrevived and exhibited its vitality which refreshed this traditional discipline. The“humanism theory” has not dedicated to create a new theory on purpose, but, just toremind the academia and call for respect for some simple concepts, rebuilding itsdignity and status. There is no ending for academic research; it is just a start for“humanism theory”.