The Principle Of The Protection Of The Weak In Private International Law

In the era of economic globalization, the factors of inequality in the international civil and commercial exchanges are increasing. As a general principle of private international law, the value of the principle of the protection of the weak is more significant. This paper discusses the principle of the protection of the weak in five parts.The first part is about the definition and history of the principle of the protection of the weak. The weak of private international law are those in a weak position and disadvantaged party at the level of foreign-related civil and commercial matters. This may be reflected in the adverse party's economic status, may also be reflected in the party's knowledge, skills, technology and information. The principle of the protection of the weak is that the formulation, application and interpretation of private international law, should focus on the protection of the disadvantaged party of the international civil and commercial relations.The second section sets out the basic principles of private international law and the reason why the principle of the protection of the weak should become the fundamental principles of private international law. The fundamental principles of private international law should include the following factors: the reflection of the spirit of private international law, universal applicability and relative stability. As for the basis of the principle of the protection of the weak becoming the fundamental principles, there are four reasons:First of all, the protection of the weak principle is the embodiment of the spirit of the humanities through private international law in the formulation, implementation of the whole process. The principle of the protection of the weak is the inherent requirement of humanistic concern of private international law.Second, to protect the weak principle is the embodiment of real justice. Traditional private international law abstract character assumed to be equal basis, dilute the main deference of economic status and strength. Their expression of justice is an abstract justice, not on certain types of special pay special attention to the principal. And the principle of protecting the vulnerable creation, development and improvement of private international law embodied all on the real value of the pursuit of justice.Again, the principle is to protect the weak private international law and the purpose of the task. Private International Law as a legal departments, and the fundamental task is to adjust social relations, how a fair and reasonable for business people to deal with international relations is the fundamental task of the private international law of the host. Protect the weak in the private international law foundation status is being highlighted, and will be established as its fundamental principles of private international law. It is bound to benefit applicable to international civil and commercial cases the most appropriate law, private international law is better fulfills its mandate and objectives.Finally, the protection of the weak principle of private international law is the trend of the need for legislation. Protection of the legitimate rights and interests of the weak private international law has become a new trend of development. A large number of laws designed to protect the weak from abstract rules apply only implied in which the characteristics and laws of general applicability summed up with a high degree of generality and the protection of the weak principle is the logic of the development of private international law inevitable.The third section sets out the principles of private international law to protect the weak in the basic system of private international law and legal options on the manifest which include:(1)The restriction of "The principle of party autonomy". "The principle of party autonomy" should limit itself to "the principle of party autonomy" inherent in, and to some extent can protect the legitimate interests of the weak. Limit is mainly through mandatory rules. There are three ways: The first is a mandatory requirement in the General Principles of the rules is the only way in the second specific legal relationship in the mandatory provisions of the rules before the third is the integration of two ways, both In its general provisions, the application of the law is also specific provisions in the mandatory rules. Recent private international law from the legislation, the general tort, has been the victim of some state regulations apply to certain legal right to choose. It is the autonomy of private international law principles of the variation form.(2)"Favorable principles" is closely related to "The most closely linked principle" in terms of the protection of the weak. In actual operation, In connection with the case in many countries, the law receives favorable weak laws in actual operation, still needs through specific links, in connection with the case in many countries. The law receives favorable weak laws, including those connecting factors: the courts of the relevant policies, the expected protection and specific areas of the law. And an "principle" of convergence, can be accepted, in varying degrees, in the particular case to protect the weak demand. This includes those connecting factors: the courts of the relevant policies, is expected to protect specific areas of the law These three factors basic policy, and an "principle" of convergence, can be accepted, in varying degrees, in the particular case to protect the weak demand.(3)Directly applicable mandatory rules, essentially speaking, is the country's intervention of the powerful tools in social and economic life. Peremptory norms are excluded from the positive aspects of the application of foreign law. Peremptory norms of the generation and increasingly sophisticated, strengthen the protection of rights and interests of the weak, in particular the protection of consumer interests, is of great significance.(4)Reservations from the perspective of public order, the state can from the following two aspects to implement the provisions and principles of the protection of the weak. The norms, which are not proper to the protection of the weak, should be restricted. The court may appropriate use of discretion, deems necessary in order to take reservations in order to protect specific international civil and commercial matters in the relations between the legitimate interests of the weak.(5) Avoid a legal system from the elements, nature, effect and consequences are reflected on the protection of the weak.The fourth part mainly on the principle of the protection of the weak in the normative dimension of the conflict(1)protect the weak principle in the protection of the rights and interests of consumers, the main parties choose to restrict the legal place of residence, and consumer law and restrictions apply.(2)Protect the weak principle of the protection of employees, including restrictions on the parties choose the laws and give priority to the usual work of the law.(3)Protect the weak principle in the protection of women, children and dependants.(4) The protection of the weak principle of the protection of victims.The last part is about the principle of protecting the weak in China. China's private international law in post-conflict norms on the protection of the interests of the weak mainly reflected in the following areas: foreign adoptions between the application of the law; foreign dependency between the application of the law; foreign guardianship law applies, "the draft of the Civil Code," the relevant provisions. The Proposal for China to improve the protection of the weak principle includes:(1)Principle of the protection of the weak should become the fundamental principles of private international law of China.(2)Protecting the weak should implement the principle of equality.(3)Improve the use of "blind" conflict method of regulating the protection of the weak.