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Research On The Improvement Of The Principle Of Evasion Of Law In China

Posted on:2018-06-16Degree:MasterType:Thesis
Country:ChinaCandidate:X F LiuFull Text:PDF
GTID:2346330515488250Subject:International Law
Abstract/Summary:PDF Full Text Request
At present,theorists and practitioners in different countries have different attitudes towards the principle of evasion of law.Some countries think that evasion of law is a kind of fraud,which should be prohibited,and the principle of evasion of law should be established in the legislation.Most of western developed countries do not admit that evasion of law as an independent issue,but only a part of the reservation of public order.As the more and more frequent intercommunication,more and more phenomenon of evasion of law not only seriously impacts on the legal order and legal dignity of all countries,but also hinders the further development of international civil and commercial activities.Therefore,on the basis of drawing lessons from the relevant foreign legislation and judicial practice,it is necessary to put forward some relevant suggestions to perfect the principle of evasion of law in our country.In addition to the introduction and conclusion,the text is divided into three parts.The first part is the theoretical analysis of the principle of evasion of law.The core of the principle of evasion of law is to define evasion of law,and the most important element is deceitful intentions.Through the analysis of the concept of the principle of evasion of law,the author tries to compare the system with other relevant systems so as to make the system easier to understand and more operational.This chapter is divided into two sections.In this chapter,an overview of the principle of evasion of law and a comparison between the principle of evasion of law and related systems are discussed.The second part is the main problems of the principle of evasion of law in China.This chapter includes the comparative analysis of several typical cases of evasion of law in judicial practice,and the research on legislation of evasion of law.There is a great deal of controversy about whether the principle of evasion of law is introduced into the legislation in the theoretical and practical circles in our country.However,due to the lack of evasion of law in the legislation,it leads to many problems in foreign-related judicial practice.For example,the lack of fairness,which seriously damage the authority and impartiality of the law.Through the study of the principle of evasion of law in China,the author thinks that it is necessary to establish the principle of evasion of law in the legislation,and flexible judicial interpretation can be used as an important supplement of the legislation.The last part of the article puts forward some suggestions to perfect the principle of evasion of law in China.On the basis of drawing lessons from foreign legislation and judicial practice,the article puts forward some suggestions on the principle of evasion of law.Firstly,since there is a widespread phenomenon of evasion of law in many foreign-related civil and commercial areas,and evasion of law is different from the public order and mandatory rules,our nation should fully accept evasion of law.Legislation should adapt to the current judicial practice,set“prohibit evasion of law”as an independent system at the right time,clear the effect of evasion of the foreign law and domestic law.Secondly,even not to amend the law,and take into account the fact that legislators also have their own value measurement,we can also interpret the relevant provisions of application of law in civil relations with foreigners to accept evasion of law indirectly.Thirdly,use "case guidance system" to better apply the principle of evasion of law,restrict the discretion of the judges in the foreign judicial practice,and safeguard the authority and impartiality of the law.
Keywords/Search Tags:Evasion of Law, Public Order, Mandatory Rules, Party Autonomy, Case Guidance System
PDF Full Text Request
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