On Application Of Autonomy Of Will In Foreign-related Relative Field

As an important part of the international private law, foreign-related relative relation is showing a new trend of constant change with the development of modern law.With the increasing of people-to-people exchanges,property flows, foreign marriage and inheritance,this kind of legal issues are becoming increasingly complex. Under this background, in many countries, the principle of autonomy of will, which was originally applied to the field of traditional contract, has been brought into the field of foreign-related relative. The principle of autonomy of will refers to the civil subject can produce, change, eliminate the civil legal relationship according to their own will in the legal provisions of the scope. However, the foreign-related relative relation usually includes the identity of the parties, so it relates to the public interest of one country and the legal ethics. This also leads to that when the parties enjoy the autonomy of will they are bound to be limited by certain restrictions.Firstly, this paper researches the connotation and development of the principle of autonomy of will, found that there is a close connection between the emergence of the autonomy of the will and the development of the commodity economy in the private ownership society. The autonomy of the will originates from the ancient concept of freedom of contract. It can demonstrate the law’s confirmation and protection of individual rights, and save the judicial cost and improve the judicial efficiency. It is also conducive to the development of the social economy and the flow of international personnel. Bases on these reasons, this principle has gradually become the basic legal principle in the field of private law.Secondly, by generalizing and analyzing the legislation situation of principle of autonomy of will in many countries, we can know that although the legislations of different countries are different, but the application of the principle of autonomy of willthe application basic forms from scratch, from the shallow to deep development model.With the EU promulgated the 2010 "Rome III rules" and 2012 "Rome IV rules", the application of the principle of autonomy of will reached a new height of history in foreign-related relative field. When the international legislation affirms and respects the freedom of the parties to choose the law, the limitation of the parties to exercise autonomy is also in constant refinement at the same time. Especially in the foreign-related relative field, the exercise of autonomy is not only restricted by the factors such as the choice of manner, time and scope, but also by the public order retention, mandatory norms, the principle of good faith and the principle of protecting the rights of the weak and other special restrictions. Compared with the field of contract,the application of the principle of autonomy of the will in foreign-related relative field is more stringent.Finally, in combination with the relevant provisions of the law on law application of foreign civil relations in China, this paper further analyzes the application of the principle of autonomy of will in foreign-related relative field in China. Because of the influence of the traditional idea and legislation, in the field of foreign marriage and family the freedom of parties to choose the law has also been limited recognition, but in the field of the application of the principle of foreign succession is still a blank. Due to the late start in the international private law, China should actively learn from the experience of other countries on the basis of the basic national conditions, gradually includes the principle of autonomy of will into the field of foreign marriage and family and foreign affairs. This measure will help the government to maximize the protection of personal rights and freedoms in private law and provide more explicit and clear behavior guidance for the parties involved in civil relations.