The Usage Of The Doctrine Of The Most Significant Relationship In China

Doctrine of the Most Significant Relationship was formally established by TheSecond Restatement of Conflict of Laws of the United States in1971. Since then, ithas been producing so huge influence on the international conventions and thelegislation and judicial practice of private international laws that the privateinternational laws of several European countries regard it as a “choice-of-lawprinciple”. Doctrine of the Most Significant Relationship works as a “collection set”to “collect” different theories and values, but it is not an object in the sense of theoryor value. Doctrine of the Most Significant Relationship is essentially a method toincrease the flexibility of applicable rules, and in practice, we usually use it and the“softening” of the applicable rules in combination. The international mainstream viewon it is “cautiously affirmation”, namely, we affirm its role and status in the privateinternational law and limit its application at the same time because of its “flexibility,unpredictability and inconsistent with results”. As a result, Doctrine of the MostSignificant Relationship presents two different development trends: the enlargementof application scope and the limitation of application methods.The Chinese legislation about “Doctrine of the Most Significant Relationship”would be divided into two parts by Law of Application of Laws to Foreign-RelatedCivil Relationship which was promulgated in2010. Law of Application of Laws to Foreign-Related Civil Relationship regards the Doctrine of the Most SignificantRelationship as a “complementary choice-of-law principle”. This law improves thestatus of the Doctrine of the Most Significant Relationship in Chinese privateinternational law while it also limits its application at the same time. The provisionsabout “Doctrine of the Most Significant Relationship” in this law reflect theinternational mainstream view on it.Doctrine of the Most Significant Relationship has been universally used in thejudicial practice of our country before the promulgation of Law of Application ofLaws to Foreign-Related Civil Relationship. The judges commonly use the Doctrineof the Most Significant Relationship to judge cases, even though they may notunderstand it properly. In many cases, the judges did not analyze in detail how theydecide the applicable law by applying the Doctrine of the Most SignificantRelationship.Therefore, we should pay attention to the reasonable usage of the Doctrine of theMost Significant Relationship, determine the application conditions and scope of itand make a set of standards to estimate the “most significant relationship”.Meanwhile, we should complete the Doctrine of the Most Significant Relationship bystrengthening the empirical research on this field, perfecting the guiding case systemin private international law, enhancing the judges’ ability to apply the Doctrine of theMost Significant Relationship and improving the system of ascertainment of foreignlaw.This article was divided into four parts:Chapter I, for the need of the following analysis, and also for the comparisonbetween our legislation and judicial practice on the Doctrine of the Most SignificantRelationship and the international mainstream view on it, the author had to give adefinition on the Doctrine of the Most Significant Relationship. Then the authorpresented the nature, status and development trend of the Doctrine of the MostSignificant Relationship by analyzing several countries’ private international laws.Chapter II, the author enumerated Chinese legislation on the Doctrine of theMost Significant Relationship and respectively analyzed the provisions on the Doctrine of the Most Significant Relationship in the legislation before2010and Lawof Application of Laws to Foreign-Related Civil Relationship and its judicialinterpretation.Chapter III, through statistical analysis and case analysis, the author summarizedand analyzed the characteristics and problems in our judicial practice of using theDoctrine of the Most Significant Relationship.Chapter IV, by combining the above analysis, the author induced the reasonablemethod of using the Doctrine of the Most Significant Relationship and proposed someadvice to improve the Doctrine of the Most Significant Relationship as a system.