On Evasion Of Law In Private International Law

Beginning from the evasion phenomenon in Private International Law, this thesis firstly analyses the requirements in theory, and then probes into the key of this problem by combining some typical cases in Private International Law. The author finds out that the idea"Fraus Omnia Corrumpit"which is put forward by French continental law system is not true. The idea refers to that the judge cannot condemn the action of the party invalid because the party has the intention of evading the law, but the ultimate reason is that the action of the party essentially infracts the jus cogens of lex fori, especially when offending public interests. Moreover, the writer further analyses the relations among evasion of law, public order reservation system and Immediate Application Law, and primarily conceives how to coordinate and link up them in judicatory practices. The above three systems can maintain the important domestic interests. The evasion of law can not be essentially independent from the public order reservation system, and the former embodies the latter. The actualizing means of evasion of law emphasizes objective fraudulence action which is deliberately directed by the party is somewhat special. Both evasion of law and Immediate Application Law are jus cogens which vindicate international public order. One requirements of evasion law is that the point of contact in conflict rules is modified artificially, while the latter can be applied without conflict rules.With the analysis of evasion of law in theory and some relative questions, the thesis detailedly analyses the specialty of evasion of law when it is applied. In the field of contract, the choice of applicable law of contracts should be coordinate with autonomy principle of the party. In the field of marriage, time element has great influence on cognizance of evasion of law.Finally, by combining the theory with practice, the writer sums up the legislation of evasion of law in Private International Law and basic condition of judicature. The writer puts forward the existent problems, analyses the developing trend, and strategically conceives how to properly apply evasion of law in China.