Study On The Application Of Autonomy Principle Of Will In Foreign Marriage And Family Relations

The principle of autonomy was first proposed by anyone had no conclusion in the academic circles. But after this principle was put forward by the French scholar Du Molan since sixteenth century, it is an indisputable fact that the international community has aroused widespread concern and heated debate. The principle is mainly applicable to foreign contractual relationship, that is to say, the parties involved in the contract can choose the law applicable to the contract relationship. Because the principle conforms to the need of capitalist free trade and the rise of modern contract freedom and human rights theory, the applicable scope of the principle of autonomy is far beyond the field of foreign contracts, which are quickly and constantly expanded to areas such as foreign tort,the field of foreign trust relationship, the field of foreign marriage and family relations and even in the field of relationship of the foreign real estate. The application of the law of foreign related civil relations of our country has carefully examined the application scope of the principle and expanded the objective reality. This method is not only stipulated the principle of autonomy as a general clause of law application, and the law applicable to foreign-related civil relations in the specific provisions of involving 14 kinds of foreign-related civil relations can apply the principle of autonomy. As far as the foreign marriage and family relationship is concerned, the law clearly stipulates that the divorce agreement, the property relationship between husband and wife can apply the principle of autonomy. As for the form of foreign related marriage,the relationship'between foreign support and the personal relationship between husband and wife is not clearly defined can apply the principle of autonomy. According to the legislation and practice of the international private law, many countries apply the autonomy principle of will to the foreign marriage and family relations. Based on this, I choose "the principle of autonomy in the application of foreign marriage and family relations" as the topic. Firstly,because the principle of autonomy theory is applicable to foreign-related marriage and family relations, and then I will explain the scope of the principle of autonomy for foreign-related marriage and family relations, and then focus on the main problems and characteristics of China's legislation on the principle of autonomy for foreign-related marriage and family relations, and put forward some concrete suggestions on how to perfect the legislation of our country with the practice of the principle of autonomy of foreign-related marriage and family relations. It is hoped that it will be beneficial to the improvement of the relevant legislation of private international law in China, so as to timely and properly deal with the disputes concerning the marriage and family relations.In addition to the introduction and conclusion, the thesis includes the following parts:The first part is to explain the theoretical basis of the application of the principle of autonomy to the marriage and family relations. The principle of autonomy of will is mainly applicable to the theoretical basis of the marriage and family relations, and includes: According to the theory of freedom of marriage contract, the relations of foreign-related marriage still belong to foreign contract relationship in essence. The parties to a marriage relationship may conclude a contract of marriage and family relations on the basis of the meaning of the two parties; they can also choose the applicable law of foreign marriage and family relations based on the meaning of the parties to a common agreement. According to the private autonomy theory, marriage and family relations are typical civil and commercial relations. According to the classification standard of the legal adjustment of western law, civil and commercial relations law belongs to private law, private law and state power usually should not intervene, namely the autonomy of private law. Therefore, foreign marriage and family relations should be applicable to the principle of autonomy of the parties.In the second part, the author expounds the scope of the principle of autonomy of will which is applicable to the marriage and family relations. Although the legislation and practice of international private law in different countries are not the same, the principle of autonomy of will is mainly applicable to the following aspects: Formal elements of foreign marriage; Foreign husband and wife relationship, including the personal relationship between husband and wife and the property relationship between husband and wife; Relationship between foreign support and foreign divorce relationship.In the third part, the author discusses the legislative characteristics and main defects of the principle of autonomy of will in foreign marriage and family relations. So far, the principle of autonomy for foreign marriage and family relations legislation mainly lies in the < general principles of civil law>, < application of laws concerning foreign-related civil relations> civil legislation. The law only stipulates that the principle of autonomy of will is applicable to the relationship between the property of husband and wife and the divorce agreement, but as to the principle of autonomy whether can be applied to the formal elements of foreign-related marriage, personal relationship between husband and wife and relationship between foreign support, there is no clear legal provisions, and there is no clear restriction on the application of the principle of autonomy to the foreign marriage and family relations.In the fourth part, the author discusses the legislative perfection of the principle of autonomy of will in foreign marriage and family relations. Based on the above discussion and legislation and practice of international private international law in the international community. When we revise the legislation of private international law in the future,the author thinks that the principle of autonomy of will be extended to the following areas: Formal elements of foreign marriage; Personal relationship between husband and wife; foreign dependency relations and foreign divorce relations. At the same time, we should make clear and necessary restrictions on the principle of autonomy of will in the above areas, so as to provide a more scientific basis for the proper handling of disputes concerning the relationship between family and marriage.