Research On The Most Significant Relationship Principle In Tort

The Doctrine of the Most Signifincant Relationship refers to that when the courtin the trial of a civil case, the court need to analysis of the legal relationship related toa variety of factors, to find and identify the country or region which has the mostimportant and essential connection, then use the national or regional laws as theapplicable law. The Doctrine of the Most Signifincant Relationship reforms thetraditional private international law and endows traditional choice-of-law principlewith zeitgeist. It indicates the value of private international law changing formaljustice to substantial justice, satisfies the pursuit of fairness and rationality.Although the Doctrine of the Most Signifincant Relationship is widely used inthe national legislation and international treaties, but the understanding of scholarsabout the Doctrine of the Most Signifincant Relationship is far from uniform. Thequestion for judicial practitioners that how to use the principle in tort is still indifferent views. Since the Doctrine of the Most Signifincant Relationship in the fieldof contract is typical, scholars in China research more about the principle in the fieldof contract. But the works about the study of the application in tort are very few. Thisarticle is going to combine the Doctrine of the Most Signifincant Relationship and theapplication of law in tort to study the question about that how to use this principle intort.On the basis of study made by home and abroad scholars, this article adopts theresearch methods of comparative study and empirical study to approach the Doctrineof the Most Signifincant Relationship from different angles. In addition to theintroduction, the main structure of the paper is divided into four parts, namely thesummary of the Doctrine of the Most Signifincant Relationship and the application oflaw in tort, the advantage of the Doctrine of the Most Signifincant Relationship, theposition of the Doctrine of the Most Signifincant Relationship, the problems andsolutions about the Doctrine of the Most Signifincant Relationship in tort. First of all, this article mainly elaborates the formation of the Doctrine of theMost Signifincant Relationship and the active meaning to study the Doctrine of theMost Signifincant Relationship in tort. Secondly, pointing out the defect of thetraditional principle. The advantages of the Doctrine of the Most SignifincantRelationship are that it can normalize the legal system and enhance the ability ofprivate international law to adapt the new case as well as achieve the justice inindividual cases.Then, the author made an in-depth study on the theoretical issue of the Doctrineof the Most Signifincant Relationship which is in dispute that how to locate theDoctrine of the Most Signifincant Relationship in tort. The conclusion is that it is thegolden rule of choice of law. But as we know, the Doctrine of the Most SignifincantRelationship is a rapier. Being not properly applied, it could lead to unilateralism andoverthrow the whole system of private international law.At last, through the explanation of the theory and analyzing the cases, the articlealso points out the main issue in China’s legislation and judicial practice, namely theignorance of limiting discretion power of judge, the absence of the reasons inapplying the Doctrine of the Most Signifincant Relationship in the judgment andjudge’s different understanding on the application of the Doctrine of the MostSignifincant Relationship.