The Research On The Legislative Status Of The Most Significant Relationship Principle In China

The principle of the most significant relationship has developed rapidly in recent years in the field of the International Private Law.The principle of the most significant relationship is required in dealing with a foreign civil legal relationship,do not accord to the original single and mechanical conneting factors to determine the applicable law,but should be the comprehensve analysis of the factors associated with the foreign-related civil legal relationgship,then made it a sign to the applicable law.Under the trend of the unification of the certainty and predictability of the International Private Law,the direct application of the principle of the most significant relationship will produce some defects and disadvantages.So how to apply the principle of the most significant relationship is a problem that must be solved in the field of the International Private Law.In the world,different countries use different modes of the principle of the most significant relationship,and they have different positions,for example,some countries,such as Swtizerland,regard the principle of the most significant relationship as a supplementary general principle,they only list a few cases that do not apply the principle of the most significant relationship;Austria and other countries will be most significant to the principle as a basic principle,it can be suitable for all areas of the conflict law;In the countries represented by the United States,the doctrine of the most significant relationgship is only applicable to the field of contract and tort.In China,the principle of the most significant relationship has been embodied in the law of the People's Republic of China on the application of the law on civil relations with foreign countries.But there are a lot of voice about the most significant relationship.From the law of the People's Republic of China on the application of the law on civil relations with foreign countries,we can see it's not difficult to find that our country legislater intends to choice of law as a fallback provision.In our country,there are many scholars hold different positions on the principle of the most significant relationship.Some argued that this principle can only have the basic principle of the deternming theapplicable law.Some argued that the principle of applying as a basic principle in the operation of the conflict of laws can be applied in any area.Some argued that this principle is only one of the ways to choose the applicable law and not have the“principle” status.The doctrine of the principle has a positive meaning,but more improtantly is how to use the principle and how to limit the principle to make it play a real role.I will compare foreign and Chinese judicial practice and legislative practice,and make the analysis of the principle about the provisions and the use of different to clarify the main points of this article.That is,the principle should be given the status of the basic principless,the use of the basic principles of position.The principle is to determine the legal product flexibility transition,the begining of its birth as manifestations of activity characteristics.It has a positive effect on the fair and just settlement of cases,and is beneficial to the justice of cases.However,the disadvantage of the flexibility and the flexibility of the principle will lead to many unnecessary troubles.Such as,the judges have great discretion,practical operability is not strong,connection point fuzzy uncertainty.These shortcomings make the principle can not play its due role.The limitation of this principle is the most important.We should not noly limit the judge's too much strong discrection,but also make clear how to apply the principle of the principle.So as to increase the practicality,bu adding exception clause regulation to improve the position of the principle in the general rules.Under the trend of globalization of International private law,I think that in the principle of the birth of the legislative purpose is not only as a fallback provision,in the judical practice of supplementary provisions,but in order to make the flexibility to the extreme,to use it as a basic principle,the principle of reasonable restricitons placed on the basic principles of the status of using.