The Basis On The Principle Of Autonomy Of Will In Private International Law

The problem of applicable of law is the most disputable in the international private law. Just as what Beale said, "There is no more complicated than to deal with applicable law of contract in conflict law", who is an American scholar. Through evolution of several centuries, the principle of autonomy of will not only has developed relative perfection but also has been become an important principle which can solve the complex problem of applicable of law. The principle of autonomy of will means that we should comply with free will of parties on deciding rule of applicable law by common negotiation in the applicable law of contract. To research on the principle of autonomy of will is important in theory and reality.The paper tries to research on the principle of autonomy of will from a thorough new basic angle. Firstly, search its general pattern from the deep reason of its establishment and development. Secondly, analyze the necessity and possibility of its application and some deficiencies of our legislation combining the reality of our country. Finally, summarize the development trend of the principle of autonomy of will and bring forward the suggestion of improving our legislation through the above analysis. It dicusses chiefly from three parts.I. Analysis of the basic theory of the principle of autonomy of willThe principle of autonomy of will is a result that the society develops to certain historical stage. Its forming and development root in social economy and ideology deeply. So it is important to analyze the forming and development of the principle of autonomy of will from the basic angle of social economy, economic thought and philosophic thought. First, economic influence plays an important role in the forming and development of the principle of autonomy of will. The principle of autonomy of will is the inevitable result of the free commodity economy. Dumoulin just conforms the requirement of development of commodity economy. He raises this principle to overcome the harm that the disunity of law brings to the new rank of businessman. With the development of economy and international trade, the principle of autonomy of will has been developed to a great extent, especially at non-monopoly capitalism stage. Second, independence and equality of subject is the precondition of application of the principle of autonomy of will. Furthermore, the extensive existence of the independent subject influences the development degree of this principle again. Third, the free economy thought is the academic guide of the forming and development of the principle of autonomy of will. Stimulating human beings' consciousness of interest and competition, individualism gives a strong foundation to the rising of the principle of autonomy of will in the 19th century. Fourth, the thought of philosophy of law is the origin of the thought of the principle of autonomy of will. Philosophy of natural law begins to treat the society with man's sight and respect man's value and dignity. It enriches the connotation of the principle of autonomy of will with rationalism, free will and equal concept. Fifth, bourgeois revolution and capitalism system is the political condition of establishment of the principle of autonomy of will.The opinion can be brought forward through analyzing the basic theory of the principle of autonomy of will. The principle of autonomy of will regards the parties' will as its connecting points to confirm the applicable law of contract. In essence, it respects the parties' freedom of choosing law. The essential character accords with the requirement of social development, so it has got great development.But the principal of autonomy of will hasn't been got unified realization. The opposition theory advocates that we shouldn't give parties the power of choosing law. The freedom theory advocates that parties have the complete freedom of choosing law and can't be interfered by any other factors. The restriction theory advocates that parties have the freedom of choosing law, but should be restricted mo...