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On Most Closely Connected Principles Of Private International Law

Posted on:2002-11-08Degree:MasterType:Thesis
Country:ChinaCandidate:L J ChenFull Text:PDF
GTID:2206360095451779Subject:International Law
Abstract/Summary:PDF Full Text Request
The doctrine of the most significant relationship is a new theory in current private international law. Since 1960's, it has been more and more appreciated and adopted across the world because it is believed to have made up for the disadvantages of the traditional private international law, met the more and more complicated international civil economic demand and indicated the future trend of private international law. Therefore, that we research the doctrine of the most significant relationship has an important sense to enrich and perfect the private international law system of every country especially the conflict of laws system, and to give impetus to the history process of rule of law in every country.Firstly, I construes the implication, history evolution and cause. It is pointed out in this article that the doctrine refers that, when it comes to choose an applicable law in a legal system, all factors concerned with this law must be taken into consideration, and then the closest connection between an area, or a country and the facts, the party of a case should be determined. After its determination, the laws of that area, or country should be employed as the applicable laws for that case. As for this doctrine, it first appeared in Savigny's "sitz des rechsrer haltuisses" in the early of 1840's,who is regarded as the father of private international law. It developed in American conflict of laws in 1930' s and 1940's, and later came to mature with the push of American theoretical circle and legal practice. In 1971, Reese dwelt on it in his book(Restate-ment of the united states, conflict of laws, second}. Not until then, thedoctrine was officially adopted. So the birth of the doctrine is not only closely related to economic, political and legal development and under the influence of western philosophy, but also deeply influenced by the contradictions in conflict rules. In fact, the formation of the doctrine is due to the coordinate force of the outer and inner factors.Secondly, I'm to elaborate the application of the doctrine in different countries except the china. The article first explains the different degrees and limits of its employment in different countries. Then the article believes that across the world, three ways of the administration of the doctrine are most popular: 1. the ways of "characteristic performance" in continental legal system; 2. the way in British and American legal system, in which it is the judge who will weigh all the factors to find out the laws concerned to administrate that have the closest connection with the care; 3. the way of combining the doctrine with a country' s sign in the light of 1986' s #Convention on the Law Applicable to Contracts for the International Sales of Goods#. The article also expounds the characteristics of the doctrine administration in China. In China, the doctrine is widely employed in different degrees, and the way of its administration is the combination of characteristic performance and the judge' s free weighing to administrate a law. Meanwhile, the article points out the advantages and disadvantages of the doctrine employment in China, and then makes some suggestions to improve the legislation in China on the doctrine of the most significant relationship.Finally, the article sets forth the advantages and disadvantages of the doctrine and puts forward some viewpoints on how to comprehend and administrate the doctrine appropriately. The article argues that the doctrine' s advantages are in its flexibility, explicitness and fairness,while its disadvantages are in its lack of establishment, too much subjective judgment and the frequent government' s interests overriding the party's ones. In the end, the article stresses that it is vital to understand the doctrine effect dialectically and administrate it appropriately in order to make the best of it.
Keywords/Search Tags:The Doctrine of the Most Significant Relationship, Characteristic Performance, The Interests of the Government, The In-ternational Private Law, Proper Law, The Most Significant Contact
PDF Full Text Request
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