The Research On The Issues Of The Judicial Application Of The Most Significant Relationship Principle In China

The doctrine of the most significant relationship was first officially brought up by Reese in the Second Restatement compiled by him. This doctrine gained prodigious attention after its debut, accepted by nations all around the world, and has become one of the cornerstones of modern private international law. That the Law of the People’s Republic of China on Application of Laws to Foreign-related Civil Relations 2011(hereinafter referred to as the Application of Laws) has ensured the doctrine of the most significant relationship a basic principle of our private international law,highlights the crucial and critical role that the doctrine of the most significant relationship has been playing in China, which means a great progress in the field of the private international law in China. The doctrine of the most significant relationship is an old friend to our academic field and we have got a profound knowledge of it. Nevertheless, taking a general survey of the practice of private international law in China, problems of applying the doctrine of the most significant relationship during judicial process still exist, including the uncertainty of the most closely connected place, lacks of malleability, ambiguity of legal bases, the predilection for lex loci of the judges, lacks of professional competence of the judges, the abuse of discretion, etc.. The reason why these problems appear is that the flexibility of the doctrine of the most significant relationship per se, lacking of a valid and effective method for application,defections and deficiencies of the provisions and the lacking of professional competence of the judges, etc.. The problems come into appearance in the judicial practice weaken the functions of the doctrine of the most significant relationship, and furthermore it may lead to the opposite direction instead of the one chased by the doctrine of the most significant relationship. Therefore, we need to solve the problem from the perspective of reason analysis, improve the application of the doctrine of the most significant relationship in judicial practice to make it play the role it is supposed to.The United States is the origin of the doctrine of the most significant relationship, who has a relatively complete theory, the prolific experience of judicial practice and a mature skill for application and we can take a lot from them for reference to improve our own judicial practice of the doctrine of the most significant relationship. The author tries to conclude the practical experience from the judicial application of the doctrine of the most significant relationship in the United States to provide guidance for the improvement of the judicial application of the doctrine of the most significant relationship in China. The author focuses on the aspects of the certainty of the most closely connected place, the combination of the choice-of-law “approach” and choice-of-law “rule”, meticulous and prudent rules, explicit prescription of the application of lex loci and the restrictions of discretion regulated by a rigid judge system to conclude the mature experience of American judicial practice.On the basis of these experience, the author proposes suggestions, specifically on the problems of the judicial practice of the doctrine of the most significant relationship as well as their reasons, to improve our judicial practice of the doctrine of the most significant relationship. The suggestions include increasing the certainty of the most closely connected place, improving the provisions of law for easier operation, enacting meticulous and prudent rules to provide concise legal bases, strict restrictions on the application of lex loci, and organizing a team of judges of high-quality to constrain discretion.The discussion of the doctrine of the most significant relationship is of great value and worthy of the attention of both the theoretical and practical fields. Through the analysis of the problems of the judicial application of the doctrine of the most significant relationship in China as well as the reasons that cause the result, and taking the mature experience of the United States for reference, this article provides advice for improving the judicial application of the doctrine of the most significant relationship, expecting it would be beneficial for applying the doctrine of the most significant relationship in judicial practice and help the doctrine of the most significant relationship play its due role.