A Study On The Doctrine Of The Most Significant Relationship On The Choice Of Law

The Doctrine of the Most Significant Relationship is the most outstanding finding of the "Conflict-law Revolution" in the United States in the middle of the 20 th century.Once it comes into being,it attracts the attention of all countries and even becomes one of the standards to judge whether a country's legislation on private international law is modern or not.The cause for this phenomenon is that this doctrine meets the needs of the rapid development of the international community,and meets the international community's pursuit of fairness and rationality in the application of the law.However,this doctrine is not a total repudiation of the traditional private international law theory,but a sublation.The Doctrine of the Most Significant Relationship is the renewal and development of the traditional method of law choice.It can also be thought to endow the traditional method of law choice with the spirit of the times,which represents the value orientation of private international law,and is the transformation from formal justice to substantive justice.It achieves the purpose of legal application scientifically and reasonably,and it is of great significance in the history of private international law.Savini's theory of "Seat of Legal Relationship" creates a new method of legal choice,which is the cradle of the Doctrine of the Most Significant Relationship.This theory begins with the analysis of the nature of the legal relationship,finds out the "connection" between the legal relationship and the region,and seeks the "Seat" of the legal relationship.During this period,the pursuit of formal justice was emphasized.Under the guidance of formal justice,the law functioned reasonably like a machine.Interest groups not only have moderate space for development,but also can foresee the legal consequences of implementation.Although judges could deal with cases step by step,different legal relationships had different legal nature.Judges did not understand the legal content which they point to,and blindly pursued the certainty of the result,ignoring the requirement of substantive justice.The Doctrine of the Most Significant Relationship was developed on the basis of the reservation and inheritance of traditional selective methods.Subsequently,the Conflict-law Revolution in the United States played a vital role in the development of the Doctrine of the Most Significant Relationships.From Caffles to Cook,and then to Curry,this period focused on the pursuit of substantive justice.Starting with the content of legal rules,Curry focuses on analyzing the government policies and interests behind these rules.He overthrows,and criticizes the old and single method of legal choice,advocating that the legal choice should be guided by the resultant interests,and the result-oriented justice should be attached great importance.In this period,the judge had a large power of discretion,and the phenomenon of excessive application of the lex fori appeared,indicating that neither could we abandon the traditional law choice completely,nor could we rely entirely on the power of the judge.In this situation,combined with the catalysis of "Otin Case" and "Beacock v.Jackson Case",the Doctrine of the Most Significant Relationship giving consideration to both formal justice and substantive justice arose at the historic moment.The Doctrine of the Most Significant Relationship is closely related to the philosophy of law in the same period.The pragmatism,sociology,and realism play a certain role in the development of the Doctrine of the Most Significant Relationship.Although the above three ideologies are inherited with each other,there are also differences.This doctrine reflects the requirements and trends of the selective norms of law in the course of dialectical development.Once emerged,it rapidly becomes a new trend in contemporary methods of selective law,which are used to resolve conflicts of laws.Moreover,according to the national legislation and judicial requirements,many countries give some new characteristics to this theory.As a superstructure,the Doctrine of the Most Significant Relationship is determined by its economic base.This doctrine is a fuzzy method of law selection,which only gives the applicable general criteria,and its uncertainty determines the legislation cost and judicial cost are different from those of the established laws and rules.The Doctrine of the Most Significant Relationship accords with the law of cost and benefit.How to judge the boundary of cost and benefit is relevant to whether the cost or the benefit is given before or after the individual behavior,and whether the rule or method is endowed;namely,when the Doctrine of the Most Significant Relationship is applied,it should avoid areas where rules are given before individual behavior,and apply to areas that generate steady incomes.The traditional method of selecting law is very simple in lack of the appropriateness and flexibility.It focuses on actualizing formal justice and pays little attention to the reasonable justice in substance.With the frequent foreign civil and commercial exchanges,various conflicts are becoming more and more complex and changeable.In order to ensure the certainty,stability and consistency of the results of legal application,flexible legal choice methods are also needed.While ensuring certainty,stability and consistency in the application of the law,it also needs flexible methods of legal options.The Doctrine of the Most Significant Relationship is the result of the unity of stability and variability,which achieves the balance between order and justice.Since the formal establishment of the Doctrine of the Most Significant Relationship,it has been recognized,accepted,and widely applied by most countries.However,different countries have different acceptance degrees to this doctrine.Moreover,the methods of applying the Doctrine of the Most Significant Relationship are different,and the specific areas involved are also different.The orientation of the Doctrine of the Most Significant Relationship has been debated by scholars all over the world,and the different views of each country are also reflected in their legislation.Both Anglo-American law countries and civil law countries have their own characteristics in the application of the Doctrine of the Most Significant Relationship.Meanwhile,in the application limits of the Doctrine of the Most Significant Relationship,they also have their own characteristics.The torts,especially those torts related to foreign affairs,are closely related to the flow of international personnel and economic contacts.Meanwhile,it creates conditions for applying new legal options for the field of foreign-related tort;with the United States and European countries as the representatives,it concretely analyzes the application of the Doctrine of the Most Significant Relationship in the United States,the European Union,and Austria.The field of foreign contracts also pays close attention to and applies the Doctrine of the Most Significant Relationship.The application of the Doctrine of the Most Significant Relationship in the United States and European countries is very mature.In addition to the general contract field,in many special contracts,there is also the application of the Doctrine of the Most Significant Relationship.In foreign civil and commercial trials,the Doctrine of the Most Significant Relationship does not provide a clear analysis method.The application of this doctrine basically depends on the consideration of the judge and judgment,which is easy to make the following phenomenon occur: the same law and the same case lead to different sentences.By analyzing the concrete situation of civil and commercial trial concerning foreign affairs in China,this chapter makes an effort to find out the root of the problem and puts forward the corresponding solution.The Doctrine of the Most Significant Relationship,which has the characteristics of certainty and flexibility,has been widely used in the field of private international law.Although the researches of private international law in China began relatively late,China has been trying to draw lessons from the advanced theoretical findings and practical experiences,and actively apply those to China's legislation,judicature.In particular,after the implementation of The Applicable Law,China has further expanded the application of The Doctrine of the Most Significant Relationship.The Doctrine of the Most Significant Relationship has been widely used in China's judicial practice.In comparison with the past,the development and progress have been made in the awareness of the judge,the understanding of the judicial concept,and the concrete operation.However,there are still many problems,including excessive application of the lex fori,lack of understanding in provisions,legislative omissions,uneven quality of judges,judges' insufficient application awareness of the law,etc.China's private international law has always favored the Doctrine of the Most Significant Relationship.The application of discretion in China is not very ideal,judging from the current judicial practice.Although there have been some successful cases,the phenomenon of judges' abusing discretion occurs frequently.Why does the abusing phenomenon occur? How to make the purpose of the Doctrine of the Most Significant Relationship accord with the discretionary power of the judge? This chapter analyzes the reasons of abuse from many aspects,including the legislative,judicature,the making of the rules,and the application of the discretion.The Doctrine of the Most Significant Relationship is not perfect.Based on different national conditions,different countries will present different situations.When applying the Doctrine of the Most Significant Relationship to solve civil and commercialcases involving foreign countries,we should base on the current situation of China,apply this doctrine reasonably,and put forward the corresponding countermeasures for different situations.As one of the methods of law choice,the Doctrine of the Most Significant Relationship has different mutual influence and interaction with other methods of law choice in the process of finding the applicable law.Different methods of law choice are not opposites,but complement each other.The Doctrine of the Most Significant Relationship reflects the desire of legislators and judicial actors to pursue legal justice and balance of interests to the greatest extent.It is not only the legislative principle that legislators should follow when formulating specific conflict norms,but also the spirit that judges should grasp in the process of hearing cases.It can be said that the Doctrine of the Most Significant Relationship has the comprehensive characteristics of the guiding principle of the law choice and the method of law choice.These two characteristics coexist in the closest relation,complement and complement each other.The Doctrine of the Most Significant Relationship conforms to the situation of social development,and satisfies the pursuit of justice and rationality;however,it has advantages and disadvantages.We can neither fully believe nor negate.It should be evaluated by dialectical thinking so as to make it serve legislation and practice in a better way.The Party Autonomy Principle is applied in more and more fields,which has a certain influence on the Doctrine of the Most Significant Relationship.The Party Autonomy Principle emphasizes the subjective will of the client,while the Doctrine of the Most Significant Relationship emphasizes the relationship between law and region.In essence,both of them are in agreement with each other.They all choose the law from the perspective of their own interests.The directly applicable law is influenced by the value orientation of the Doctrine of the Most Significant Relationship in legislation and judicature.It is of theoretical and practical significance to clarify the guiding effect of the Doctrine of the Most Significant Relationship on the directly applicable law.The Doctrine of the Most Significant Relationship determines the applicable law by means of elastic connection point,which achieves the appropriateness and flexibility of the application result of law.However,the "elastic factor" is not easy to grasp.Therefore,the norms and restrictions for the development of the Doctrine of the Most Significant Relationship has become an inevitable trend.The international private law has always paid attention to the research on the method of law choice.When the method of choice of law changes,the corresponding value orientation will also change and different value orientation will bring about different theoretical development situation.From the perspective of the legislation at home and abroad,the Doctrine of the Most Significant Relationship plays an important guiding role.However,but it gives the judge too much discretionary power.Therefore,it needs to be regulated and restricted moderately,and its cause can also be analyzed from the perspective of justice and efficiency.As a double-edged sword,the discretionary power is not only the advantage of the Doctrine of the Most Significant Relationship,but also the bruise of this doctrine.Many countries have revised this doctrine to a certain extent.The Doctrine of the Most Significant Relationship is not simply found in the conflict norms,but also needs some legislative techniques to assist it so that it can better conform to the certainty and fairness.