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Research On The Doctrine Of Most Significant Relationship

Posted on:2011-10-06Degree:MasterType:Thesis
Country:ChinaCandidate:D J XieFull Text:PDF
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As a part of private international law, the Doctrine of Most Significant Relationship had a profound influence not only on America's theory and practice, but also on the whole Anglo-American legal systems. Its vitality has played an invaluable role in the civil law countries. As the choice of law of international private law applied theory, the Doctrine of Most Significant Relationship has been generally agreed by the scholars over the world, which can be seen in the legislative and judicial precedents in many countries.In recent years, the Doctrine of Most Significant Relationship has been sufficiently developed, especially in the more recent private international law. The most important contribution of the Doctrine of Most Significant Relationship is using a resilient, flexible linking point to replace a single, rigid linking point, and a flexible choice of law approach of private international law to replace the traditional mechanical, dull and single one, thus making the justice of the international civil and commercial exchanges implemented and realized thoroughly. This is precisely the goal to be pursued by law, and also the direction of future development of private international law. However, in the process of the principle's application and development, the abuse of discretion has also shown a certain amount of drawbacks which has hampered the realization of justice in particular cases; this is obviously contrary to the Doctrine of Most Significant Relationship. Therefore, all countries, in the process of transplanting and the developing the principle, restricted freedom of discretion through a certain way to achieve the goal of its amendment and improvement. In the transplantation of the Doctrine of Most Significant Relationship, China, on the basic of learning the successful experience of Two Schools, has restricted freedom of discretion through the combination of free to achieve the realization of justice in the application of the doctrine. However, due to the constraints of traditional factors, China has not given the Doctrine of Most Significant Relationship sufficient space and soil for its development. The application of that principle should be focused on how we can get more extensive use of it. Of course, we should also pay attention in the application and development in the process of perfecting. Thus we should give sufficient room for the development of the principle, while taking reasonable way to limit the exercise of discretion on the pursuit of justice.To this end, this paper analysis the Doctrine of Most Significant Relationship's development in the private international law, proposes China's international private law on how to conform to the tide of history in the future, and looks forward to promoting the principle of private international law in the world, thus contributing to peaceful and steady development of world trade.Structurally, this paper is divided into four parts:The first part includes an overview of the Doctrine of Most Significant Relationship. In this part the paper illustrates the basic theory and historical developments, generalizes its concept and analyses the principles of the historical background and deep-seated reasons. And it also proves the necessity of the emergence and development of the doctrine through the comparative analysis.The second part includes the application of the Doctrine of Most Significant Relationship. This paper mainly expounds a comparative analysis of the principle and other relevant legal principles, application and development of the principle in Two Schools, as well as in China. In the principle's inheritance, migration and development process, China amends and improves the principle in the scope and methods. Through the analysis of China's attitudes towards the principle,this paper has discussed the drawbacks of this principle in its application and development in China.The third part includes the Doctrine of Most Significant Relationship's Pros and cons, improvements, as well as development. In this part it analyzes the strengths and weaknesses of the Doctrine, as well as the hardening treatment in different countries, and the principle's future development. The flexibility of the characteristics is like a double-edged sword, overcoming the disadvantages of a single choice of law as the traditional method while showing the possible abuse of discretion by the judge. Through the analysis of different countries'treatments towards its transplantation and the development process with local characteristics, it illustrates the trend of development of this principle in International Principle Law.The fourth part includes suggestions to the perfection the Doctrine of Most Significant Relationship in China. In this section, the paper, from the aspects of academic theory, the legislative provisions of the design concept, as well as China's judicial cooperation, discusses several aspects of how China should develop and perfect the principles, to promote China's reform in the area of private international law .with a view to adapt to the increasing complexity of the content of economic globalization, and foreign trade, as well as the characteristics of an increasingly diverse form.
Keywords/Search Tags:Private international law, The Doctrine of Most Significant Relationship, Judicial discretion, Characteristic performance
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