The Research Of The Law Evasion In The Private International Law

Since 1878 Baofu Lemon case had been heard in the French court, to circumvent the law has become a basic issue of private international law, which attracted widespread attention and a more in-deep study of private international scholars. There are too many disputes on law evasion in Private International Law, Legislation and Judicial Practice in the countries allover the world. The attitudes of different countries to the behavior of Law evasion are quite different, which lead to the Law Evasion phenomena in universal. These seriously impede the development and disturb the normal order of civil and commercial cases with foreign contact, and they also seriously threaten the dignity of justice. Hence study the problem of Law Evasion and expect to perfect legislation is of theoretical value and practical significance during the days of economic globalization.This article studies the disputed Law Evasion based on the above and mainly expatiate on it from five aspects as below:The first section mainly analyzes the concept,component,ways and causes of Law Evasion and compare the Law Evasion in national and private international laws. There were too many theories about Law Evasion, but this article agrees the Four Components Theory.The second section discusses the position and scope of Law Evasion. It elaborates that the Law Evasion should have its separate legal status and it is a separate problem not subordinate to public order. Law Evasion pervades the field of civil and commercial cases. It is a universal law phenomenon. The third section deals with the object of Law Evasion and also analyzes the main theories on the objects of Law Evasion. The article gives further explanation to the objects of Law Evasion based on these theories. The author believes that the object of Law Evasion includes not only domestic and foreign laws but also substantive and conflict laws.The fourth section amplifies on the validity of Law Evasion. There are three tenets on the theory of it. Invalid Theory,Valid Theory and Valid Theory of relativity of Law Evasion. The scholars in our country also form three opinions on the validity of Law Evasion. They are concrete analysis of concrete conditions,invalid theory of evading foreign law and valid theory of evading foreign law. The article forwards dialectical analysis to the valid of Law Evasion on this basis and gives four principles on how to decide the validity of Law Evasion: Whether the law which the party evades contradicts the moral principles; whether the party has subjective intent; whether the causes of evading for the party is justice or whether the behavior of the party to evade the law can promote the development of law. The article proves that Law Evasion is principle invalidity from a value angle of law of conflict. If Law Evasion were permitted, it would breach the equity,order,free and equality of the law of conflict.In the last section, by combining the study of Law Evasion with legislation practice, the author proposes the following suggestions to our legislation. First, to forbid Law Evasion must be regulated as a rule and it also should be regarded as a normal system .Second,to forbid law evasion should be suitable to all fields which may exist Law Evasion. Third, to make it clear that it is invalid for party to evade foreign laws.Fourth, Legislation should provide for the circumvention of foreign law review system.The area border law conflict and the Law Evasion are also the question which our country must face. Our attitude to the treatment of area border evasion of the law problems should be much clearer: forbidding all area border law evasion.