Study On The Proper Law Of The Tort

After several periods of development,the Proper Law Doctrine gradually became a mature system,making a significant contribution to the application of the contract law.On the basis of its success,the British scholar Morris raised a new theory:the Proper Law of the Tort, which is used to resolve the dispute of foreign tort, it was built on the Proper Law Doctrine and criticized the traditional but stiff ways in the tort field to set up a diverse and open system of conflict rules.But differs from The Proper Law Doctrine, The Proper Law of the Tort focus on the Doctrine of the Most Significant Relationship while excluding the Principle of Party Autonomy.With the deepening of international contacts, the Proper Law of the Tort has been undergoing a new development of introducing the Principle of Party Autonomy and expanding its influence,which further supplemented the content of itself.Till today,empowering parties related rights has become a consensus of the international community.Since the Proper Law of the Tort reflects an advantageous position and active momentum of development,it has aroused the concern of numerous scholars who generally believed it provided a theoretical basis for judicial reform and practice.In this article, the writer also has done some preliminary discussion about this theory.Through the illustrations and the logic analysis,evaluated the practice and value of the Proper Law Doctrine and proved the feasibility of the theory'application in our country.The article consisted of four parts:The first part reviewed the origin of the Proper Law of the Tort:the development of the Proper Law Doctrine.It explained the basic connotation of the theory in different periods of time by citing classic cases and viewpoints of scholars.As both of the subjective and the objective viewpoints of this theory had inadequacies,they gradually merged into a new theory,not only provided a universal formula in the field of application of the contract laws,but also laid a theoretical basis for the extension in the field of tort.The second part focuses on the theory of the Proper Law of the Tort.To fill up the holes in the traditional application system of tort law,the British scholar Morris got inspired from the Proper Law Doctrine and introduced it into the tort field to established the Proper Law of the Tort.At the beginning,scholars have different understanding of it,the writer put forward own interpretations and responded to the questions through the analysis and evaluation of the theory.In addition,from the theoretical and practical ways,the writer demonstrated the advantages of the theory that tried to establish a multiple, open and flexible system of conflict rules to achieve goals of individualize justice,such as the diversity of the contact factors,the multi-level of conflict rules,the individuation of the law application,and also the negative effects:the instability of the law application,the over-expansion of the discretionary power,etc.With the development in years,the Principle of Party Autonomy was gradually concerned in the tort field, the theory of the Proper Law of the Tort began to present new energy,which was described as an emphasis in this article of Part III.The traditional theory excluded the Principle of Party Autonomy for its difference and unpredictability of infringement disputes,which made the Proper Law of the Tort can not develop and improve fully,by analyzing the jurisprudential basis, economic fundamentals and realistic basis,the writer demonstrated that the introduction of the principle was an inevitable trend to protect private right under the conception of equality and freedom of law,it could protect legal interest of parties,but also meets the multiple requirements of the maximum benefits and social equity and justice.With the rationality in theory and feasibility in practice,it refuted the opposed view- points.At the same time,the writer combined practical experiences in other countries,and concluded its features that were different from the contract field.Part IV put emphasis on the introduction and the establishment of the theory of the Proper Law of the Tort in China.The current tort conflict rules in China are not flexible and fair enough for the increasingly complicated social communication,the theory can improve our legal system.The writer drew on the experience of the Private International Law of the People's Republic of China (model law) which drafted by scholars of private international law,giving a few suggestions about the application of the theory in the future,and believed that the theory will have a positive meaning to our national legislation and judicial practice.