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Evasion Of Law On Private International Law

Posted on:2008-09-11Degree:MasterType:Thesis
Country:ChinaCandidate:H WuFull Text:PDF
GTID:2206360215973095Subject:Private International Law
Abstract/Summary:PDF Full Text Request
With introduction and analysis of the basic questions of meaning of evasion of law, constutional condition, analysis of reasons, nature, object, jurisprudential nature of compulsory norm and prohibitive norm, and theory flaw of invalid theory of evasion of law, endeavour to demonstrate connotation and legal science significance of system of evasion of law on the base of historical origin theory present situation of evasion of law(mainly civil law system). And the article points out that we must comply with the current of international private law science, see the nearest development update clearly in order to instruct the judicial practice effectively on the base of two aspects of international commercial arbitration and evasion of law, theory of meaning autonomous and evasion of law.The article has seven chapters:Chapter 1 mainly introduces the meaning, constituion conditions and reasons of evasion of law. It points out that evasion of law is a legal phenomenon that actors evasion rules of imperative law with changing the junction. This phenomenon roots from the actors' value orientation of making use of favorable conditions and avoid unfavorable conditions. The problem of evasion of law is a traditional problem. Countries of civil law system develops different theory according to the nature and solution of evasion of law. The author presents that we should not put intent as constitutive requirement of evasion of law with schlors' opinions of civil law system.Chapter 2 mainly analysizes the jurisprudential nature of compulsory norm and prohibitive norm. it presents that the consequence of actors violating the stipulation is not absolutely invalid. It needs to be analysized in individual cases. And acoording to introduce the vicissitude process that, domestic law's attitude to contract with one's own capital in disguised form is from phohobition to acknowledgment, the article pesents that the potency of evasion of law is a historical category and having relativity.Chapter 3 mainly analysizes the nature of evasion of law. It presents that evasion of law is neither eacaping law action nor cheating action. It is the indirect choosing law action of actors. Defing the nature of evasion of law will present important significance in theory and practice.Chapter 4 mainly analysizes the theory flaw of invalid theory of evasion of law and problems in practice. It presents that the theory of fraus omnia corrumpit as theory basement of evasion of law has serious logical paradox and therefore it brings a series of problems in judicial practice. It is neither advantageous in protecting international civil and commercial actors' lawful benefit nor convenient in judicial operation in various countries and causes privity unstable. The author thinks that evasion of law is invalid or not is relative, not absolute. With time passing, it will appears different result. Invalid theory of evasion of law cannot instruct practice well, so it loses the cornerstone of development in certain degree.Chapter 5 mainly discusses the relationship between autonomy of will and evasion of law. It presents that admitting limited autonomy of will is the premise of existence of evasion of law. But for some countries like England which nearly admit unlimited autonomy of will, the problem of evasion of law doesn't exist. Through discussing the related problems of applicable law for contracts, the author presents that the existing of system of evasion of law is unreasonable. Finally, the article probes the value structure of evasion of law and autonomy of will.Chapter 6 mainly discusses that evasion of law exists in international commercial arbitration or not. It presents that evasion of law has no space in international commercial arbitration. There is two reason: firstly, recognizing of actor's subjective intention violates the value orientation of efficiency of arbitration.; secondly, evasion of law loses its existing theorical premise in the arbitration of admitting unlimited autonomy of will.Chapter 7 mainly analysizes the related problems in China's legislation and judicial practice. It presents that stipulaion about evasion of law is quite fuzzy in related articles and in juridicial practice, the cases in which the action is judged invalid based on the system of evasion of law is very rare. The only case still has many problems. The author thinks that the standard of evasion of law should not be irrevocable. And we should accommodate the need of our society, adjust the standard of law value judgement. To some evasion of law that doesn't do harm to national and others' profits, we should admit its validity.
Keywords/Search Tags:evasion of law, rule of conflict, compulsory norm, validity
PDF Full Text Request
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