The Proper Law Of A Tort

Proper law,originally, was a term for applicable law, and then became a theory of conflict law. Proper law originated in contract law, extended to the areas of tort law as the proper law of a tort ,which is important achievement proper law theory made while penetrate in other legal sector. The authors tend to translate"the proper law of a tort"to the proper law of violations, this is because the British scholar put proper law concept is to establish a legal principle, the core and essence this principle of the choice of law or law applying is to achieve the "appropriate." The proper law of contract theory experience from infancy to maturity on the subjective stage, objective stage and modern stage, and theory formed a unique content. The proper law of a tort as sister theory of proper law of contract also experience the subjective stage and objective stage.Morris, in an article entitled "The proper law of a tort" made the proper law of a tort theory. In fact the proper law of a tort is a British version of the most closely linked principle here. In the text, Morris discussed on the basis of their views in comparison with proper law of a contract. He thinks that the British court have reached results which, on the whole, seem commercially convenient and sound by applying the proper law doctrine to the question whether the defendant is liable for breach of contract. Why should we not reach results which are socially convenient and sound by applying the proper law doctrine to the question whether the defendant is liable for tort? During the process of constructing the doctrine, Morris gives a lot of precedents to illustrate the problem. Including the invasion, a typical practice which rarely to be applied the law of tort. So Morris concluded: at least one violation does not apply to the law of tort. This has also led to a reflection of which other types of tort law may not apply. Morris believes that violations as a geographic factors obviously great chance. And violations as a more appropriate method should be concerned about their social behavior. Study questions from the perspective of geographical factors to social factors, Morris also pointed out that contract also could not be considered linked more closely with the Court, it is common to exclude foreign law when involved public order situation. Morris completed a violation of the traditional link to the single negative factor. For Morris, from the social and economic position that is more inclined to pursue appropriate legal judgment of the appropriate people in the United Kingdom On the main characteristic is flexibility. The proper law of a tort emphasized specific cases fully considered important factors to solve the continuously changing practice of the problem. And such objections as "Without the premise knowing the appropriate method to determine proper law is absurd to talk about appropriate, etc." Against the Opposing views of the proper law of a tort, Morris believes that the difficulty would appear to somewhat less, because the factors to be taken into consideration are likely to be less various, and because in many, perhaps most, cases there would be no need to look beyond the law of place of wrong. After the birth of the proper law of a tort, evaluations of the theory differ. Some scholars believe that the legal theory applied in the modern flexible connecting factors, judicial trend to strong private international law and under the idealism of the new period; some academics have also pointed out that appropriate objective tort theory has its shortcomings which is vulnerable to the court the opportunity to expand the application of national law. Therefore, it is necessary to pay attention to the negative impact of this theory, technical and legislative measures to be taken to overcome them. And the objective doctrine of proper law of tort fully reflected in many countries such as United States, Britain, Austria, Turkey and other countries. Therefore, appropriate law violations study Judicial practice, tort law appropriate objectivity in the United States, Britain, Austria, Turkey and other countries have been fully reflected.Professor Xiao Yong ping pointed that content of the proper law of tort include not only on the objective, but also on the subjective. Party autonomy infiltrated into the area of tort, namely the rise of subjective doctrine of the autonomy based on the theory of classical natural law philosophy of freedom and equality. Natural Law fully affirmed the rational, free will, equality and rights, which is the ideological basis of principles for the theory to be flourishing. Therefore, in principle, there is no reason to prevent them from occurring in the future adjustment of the two sides to advance the consequences of the violations. If exemption clause did not expressly prohibited by law, then it should be protected by the principle of freedom of contract. Tort law itself is a process of constant development; to overcome the threat posed by the large industrial production for human rights, the principle of liability without fault has been put up. This system will no longer consider the subjective fault. So to some extent also reduced the punishment for violations of the educational function. Allowing the parties to make a choice is more conducive to the public policy embodied violations to the court. Back in May 10, 1952 in Brussels, Belgium, "Ship collisions in 1952 certain provisions of the International Covenant on Civil jurisdiction": it shall be without prejudice for the parties, under any circumstances, to initiate prosecution of the case to the Court has chosen or submitted to arbitration. In other words, Convention allows the parties to choose the collision cases by agreement or through the court case was referred to arbitration agreements. In the statute books in the Swiss Private International Law also explicitly states that the"The parties have agreed to apply the case to the law of court any time after the occurrence of damage."So we can draw the conclusion that subjective doctrine of the proper law of a tort is not castles in the air. There is support for the legislative and judicial practice. The connotation of subjective doctrine of the proper law of a tort summarized as follows : First, Autonomy is the main event the parties, under specific circumstances, In addition to the parties might also include successors, relatives, guardians, and Insurer; Secondly, no time limit whether before, after or in the courts before changes; Moreover, the exercise of rights, including express and implied; on the choice, I propose to expand the scope of choices is not appropriate for the Court to limit development; Finally, I propose to choose the scope of application of the applicable law to decide the amount of compensation.Subsequently, in the article the author stated the meaning of application of the subjective doctrine of the proper law of a tort: First, relatively improve the predictability of the laws applicable; Secondly, Provide a chance for the client to consulate to resolve disputes; from the judicial practice, to facilitate the application of tort law by judge. In judicial practice, subjective doctrine of the proper law of a tort in the Netherlands, the United States, Germany, Austria, Switzerland and other countries have been fully reflected.The continuous development of the theory of the proper law of a tort, Attracted the attention of scholars in China and made a useful discussions about the development of theory and related issues. Most scholars in China maintained a positive attitude to the proper law of a tort: it promotes the concept of private international law applicable to the "appropriate". China's tort system is standardized by the conflict the "General Principles of Civil Law," and Article 146 of the Supreme People's Court constitute the judicial interpretation, relative to the worldwide conflict rules violations softened climax still relatively backward legislation, the authors put forward its own legislative proposals at the end of the paper.