On The Protection Of The Weak Party In The Application Of Law Concerning Contracts With Foreign Elements

With the development of globalization, more and more people has involved in contracts with foreign elements. Among most of these contracts, there is always one party is weaker in economic strength, competition capability and other capabilities. How to protect them has become a problem demanding prompt solution. The traditional rules of conflict, such as the principle of autonomy can only achieve justice in cases in which parties of contracts are equal. To improve the rules of conflict in application of laws as a whole can not only give directions to the rules of conflict of different kinds of contracts, but also can generate more public discussion in the protection of the weak in other fields.This article has used generalization and comparison as study methods. It generalizes the developmental trend from foreign laws and articles and compares the different foreign laws in customer contracts and employment contracts and tries to find out what China can borrow ideas from.The first part of this article defines the weak party in contracts with foreign elements.The second part elaborates the value of protecting the weak party. First of all, it discusses the differences between equality and fairness and demonstrates that the protection of the weak does not violate the equality of law. Secondly, it draws the conclusion that protection of the weak party is the requirement of substantial justice from analyzing the relationship of formal justice and substantial justice. Thirdly, it reveals the pursuit of the protection of the weak party for humanism.The third part analyzes rules of conflicts in the application of laws. Firstly, it discusses the advantages and disadvantages of principle of autonomy and the limitations on it. Secondly, it elaborates the two different ways of reification of the doctrine of the most significant relationship and comes to the conclusion that the way of enumerating points of contact and element is better. Thirdly, it explains the connection between protection of the weak party and reservation of public order. At last, it lists the examples of multilateral rules of conflict and brings forward its opinions. The forth part lists Chinese laws in application of laws in contracts with foreign element, and tries to make recommendations to them.