On The Principle Of Favorableness In The Application Of Law

The principle of favorableness has become one of the principles to the establishment ofapplicable law in modern private international law and has been paid more and more attention.It contains a certain degree of legislative policy or purpose, requirements to promote specificlegal results or purposes by directly or indirectly method in the process of the choice of law.See from the legislation of private international law in the whole world, its scope ofapplication include the field of marriage and family, contract and tort. Even if not use theconflict rules nomenclature" apply the favorableness law" in directly, but also carry out theprinciple of favorableness through various of other ways. With the development of theinternational civil and commercial relationship, the principle of favorableness has a verybroad space of application. In view of its importance, we should refine the principle offavorableness and make clear its basic characteristics, nature and positioning. Only in thisway, we can carry out this principle better, guiding the legislation and judicial practice, andthen to realize the value of the private international law.In this article, the historical methods, comparative methods are used to research theconnotation, theoretical origin, orientation and effectiveness and the role of the principle offavorableness, and various example of legislation in many countries are listed in detail.Finally, analyzing the current situation of carry out this principle in our country in "law oflaw application of foreign civil relations", and put forward the improvement suggestions. Thispaper is divided into five parts:The first part includes three segments. First, make a general introduction of the concept,characteristic, main types of definition of the principle of favorableness. Secondly, go back tothe theories of the privative international law and look for which contain the principle’germination. Finally, make clear the positioning and effectiveness of the principle offavorableness, and pointed out that it is a specific principle of the application of law.The second part introduces the role of the principle of favorableness. The principle has avery broad space of application and in different areas it plays different roles. Use to protectthe weak, it will respect and protect the human rights and achieve fairness and justice; Use inpromoting the validity of legal behaviors, it will respect the parties’ reasonable expectationsand promote the trade between the parties; Use in the establishment and termination ofmarriage, it reflects that respect the freedom of the parties of marriage. The third part is the most important part in the whole article, discusses the three types ofthe principle of favorableness, that is" in favor of the weak"," in favor of promoting thevalidity of legal behaviors "," in favor of the establishment or termination of marriage".Various example of legislation in many countries are listed in detail, according to this, we cansummary the trend of legislation in some special areas. And it has important significance forthe construction of the choice of law rules in some relevant areas in our country.The fourth part begins with three closely related problems, which is the standard, thesubject, and the degree of the judgment, to analyze how to carry out this principle reasonablyin practice.The fifth part reviews the current situation of carry out this principle in our country in"law of law application of foreign civil relations". This law adopts some internationaladvanced legislation; comply with the trend of the development of the private internationallaw. But it still has some problems. We should define the value which it pursuit, develop andimprove it constantly.