Empirical Study On The Application Of Principle Of Autonomy In General Tort Conflict Law

As the international community lays more and more emphasis on the freedom of choice and the right of autonomy, an increasing number of countries begin to introduce the principle of autonomy into the law on the application of laws to the foreign-related general infringement relation, giving the involving parties the proper right to choose. In recent years, our legislators become aware of the importance of law on the application of laws to the foreign-related general infringement relation. On the basis of China’s current situation, drawing from other countries’ legislative models, our legislators adopted the principle of autonomy to the law applicable to the foreign-related general infringement relation. Such questions are very worthy of study, as how to choose laws; how the result of application is and how to be further improved if the result is not as good as expected. After the preliminary research, the author found the number of foreign-related special infringement cases was rather small. Because of the lack of research data, this dissertation only focuses on the law on the application of laws to the foreign-related general infringement relation.This dissertation carried out a deep and delicate research on the application of the autonomy principle, got the first-hand research data, and summarized the following three significant issues from the current trial practice in Shanghai:(1) in foreign-related general infringement cases, it is difficult for the parties to reach a consensus on the choice of law;(2) the application of the autonomy principle on the foreign-related general infringement cases is ineffective;(3) other choice-of-law rules(i.e. as the principle of the most significant relationship) can not be directly applied. On the basis of the above steps, the dissertation collected and analyzed law on the application of laws to the foreign-related general infringement relation around the world, and found that those conflict rules showed "dual track" trend(ie, the parallel application of the autonomy principle and the principle of most significant relationship). In this dissertation, through separately comparing the characteristics of the autonomy principle and the principle of the most significant relationship, the author reveals the nature of law applicable and finally proposes that the principle of autonomy shall be affirmed and the principle of the most significant relationship shall be considered to introduce.The innovation of this dissertation lies in the following three aspects:(1) basing on the first-hand information and carrying out the study problem-oriented From April 2011 to December 2014, Shanghai district courts tried and finished a total of 20 foreign-related general infringement cases. 75% of the referee instruments had no description on the parties about making the choice of law; in 10% of the cases, the parties had successful consensus on the choice of law; 95% of cases were governed by the Chinese law; 0% of the cases quoted the principle of the most significant relationship.(2) comparing multinational conflict rules applicable on the application of laws to the foreign-related general infringement relation and mastering the international trend. As of December 2014, the author has retrieved and collected the conflict rules of 11 countries or regions from the public way, and summarized the two main legislative modes(i.e., Germany Mode and Switzerland Mode, which respectively representing two mainstream legislative modes).(3) analyzing the method of the choice of law and legal relations and improving the application condition. The application of the autonomy principle on the application of laws to the foreign-related general infringement relation is ineffective, which is largely due to “two difference”---the different legal relationships between the contract and torts and the difference psychology state of the parties after the disputes occurred. In the foreign-related general infringement cases, the relationship between the principle of autonomy and the principal of the most significant relationship can be a compatible relationship( "dual system").Although the "dual system" can not solve the inefficiency problem mentioned above, the fixed-quoting problem can be solved.This dissertation comprises three chapters, totaling29,000 words or so.The first chapter is about the current legislation about the principle of autonomy in foreign-related general infringement field. This chapter is divided into three parts. The first part demonstrates that the principle of autonomy has been officially established by a way of combing Chinese law. The second part introduces the time and manner for parties to make the choice of law from the perspective of law explanation. The third part further introduces the governing law from the perspective of law explanation.The second chapter is about the empirical analysis about the application condition of the autonomy principle in Shanghai foreign-related general infringement cases. This chapter is divided into three parts. The first part briefly summarizes the basic condition of the cases. The second part summarizes the characteristics of the law application. The third part summarizes the trial practice of the principle of autonomy and deliberates the proper problems.The third chapter is about the dialectical considerations about the principle of autonomy in foreign-related general infringement cases. This chapter is divided into three parts. The first part briefly introduces the conflict rules on the application of laws to the foreign-related general infringement relation and concludes the international trend. The second part focuses on the general and specific characters of the principle of autonomy and the principle of the most significant relationship. The third part carries out the further discussion in order to affirm the principle of autonomy in the foreign-related general infringement conflict rule, and propose to introduce the principle of the most significant relationship.