The Application Of The Most Significant Relationship Principle In China 's Foreign Civil And Commercial Cases

The Doctrine of Most Significant Relationship is a new theory of contemporary conflict laws. It advocates the closest connection to be determined by the judge based on the specific circumstances of the case, in order to avoid cases of actual cut fixed with a rigid connection points as a result of the guidelines governing law and thus can not be just and reasonable solution to the outcome of the case. Currently, the most closely related principles do not provide the necessary rigorous and accurate analytical method, its application is largely dependent on the judge’s analysis and judgment. Different judges most closely linked to a different understanding of the principles, resulting in "a different method of using the same, different co-contracting" and other circumstances. Meanwhile foreign judges in civil and commercial trial principle applies to most closely connected solution can not tell, proper awareness and weak law situation is not uncommon.The purpose of this study is that, on the status of foreign-related civil and commercial trial of our analysis, the most closely linked to grasp the principles applicable in our case, identify the problems and propose solutions. Research methods are mainly literature research, read through to find all types of literature, the most closely related principles applicable to understand the status quo; empirical analysis, and analysis from the most private aspects of our close ties with the principles of legislation, as well as some classic case of using the data to analyze this topic; finally comparative analysis method, through the civil law with common law principles apply with regard to the most closely related case variance analysis, what is more suitable to extract the status quo approach.This article is divided into three parts. The first part states the basic connotation of The Doctrine of Most Significant Relationship, analyzing the development in both common law system and civil law system, then contacting to our legislation on the development of The Doctrine of Most Significant Relationship; The second part based on the study of applicable situations in the judicial practice, conclusions the applicable ways and the characteristics, seeking the problems. The third part put forward some perfect measures to govern the application of The Doctrine of Most Significant Relationship.The main point of this article and core content, the authors believe that the most closely related principles of private international law as an important principle, plays an important role in our foreign civil and commercial trials, along with socio-economic development, the principle of judicial practice use is also more mature. This paper aims most closely connected by introducing the status quo principle in our foreign civil and commercial trials, analyzes problems reasons put forward some measures to improve, attention conflict of laws, thereby avoiding fori excessive applicable, the correct understanding of the most closely linked principles meaning, norms most closely connected with the characteristic performance principle and the principle of autonomy relations theory, and improve the overall quality of judges, limiting judicial discretion, improve domestic legislation and judicial interpretation, making the most closely linked principles can better play its role.