The Path Of Realization Of Implied Choice Of Law System In China

Autonomy of Will is the fundamental principle of private international law.With the continuous development of the society and economy,its scope is also continually expanding.It covers the time of parties' selection,the scope of the election and the mode of the selection.Article 3 of the Application of Laws to Foreign-related civil Relations stipulates that the parties concerned can explicitly choose the laws applicable to civil relations involving foreigners in accordance with what the laws.Although the sentence is ambiguous,it can still show that our country does not recognize the implied choice of law.This stipulation has brought certain limits to the expansion of the scope of application of the principle of autonomy of will.At present,most countries in the world and most international treaties have already acknowledged the way of implied choice of law.It is clear that the way which our country's practice is contrary to the legislative trend of private international law.Although our country provides exceptional cases in the Interpretation of Application of Law(1),judging from the current increase in the number and difficulty of foreign-related cases,it is not enough to reasonably solve the existing problems.Also,due to the rough legislation of the Application of Law and the lack of related legal systems.It is very common for courts in our country are prefer to apply the law of the courts to resolve contradictions.It may also appear that although there is a consensus between the parties,the judge rejects the parties' agreement for various reasons and apply Chinese law to resolve disputes at last.First of all,the absence of the implied choice of law is contrary to the principle of autonomy of will.As the source of the principle of autonomy of will,the frequent exchanges among all the countries brought by globalization and the dramatic increase of foreign-related cases,it is not proper to imply that the law of implicit election cannot be recognized.Second,the current situation resulting from the absence of the system of implicit choice of law is that the parties have not agreed in an explicit way.Although the statement is real and apparent,our courts will directly skip the stage of the parties' tacit agreement and directly apply the most relevant principle to determine the applicable law,which is contrary to the expectations of the parties when they reach a deal.The behaviour of courts will be contrary to the results pursued by the parties,so the result is a lack of substantive justice.Third,the absence of the implied choice of law goes against the efficiency value.First,the rational parties that seek to maximize their interests will choose the rules that are most familiar and advantageous to themselves when they reach an agreement.Second,there are cases in which parties neglect to express their choice of law.In both cases,assuming that the parties' implied choice of law is obvious,but it cannot recognize in our country,so the parties have to find out the law that he did not understand,which not only increased the litigant's legal costs,It also reduces the efficiency of case resolution.Finally,the absence of the implied choice of law can also undermine the veracity and stability of the law.The above problems with the denial of the implied choice of law seem to contradict the reasons why our country does not recognize the implied choice of law.The issues we should try to avoid in the legislation of our country's private international law ultimately fail to prevent.And considering that the parties have already anticipated the application of the law in the early stages of the agreement,the denial of the implied choice of law will inevitably break the parties' expectation and implementation of the law,and also increase the uncertainty of the application of the law.Based on the current provisions of our country on the choice of law,I discussed the problems brought by the absence of the implied choice of law,to probe into the necessity of admitting the implied choice of law in our country.Besides,but also because the implied choice of law is the source of the principle of autonomy of will.Although the Application of Laws in our country has primarily expanded the scope of the principle of autonomy of will,however,there is a contradiction between the conservative way of application and the expansion of the range of the principle of autonomy of will,so it is necessary to admit the implied choice of law.At the same time that our country stipulates the implied choice of law in legislation,we can open the enumeration of the determinants of the implicit election law,limit the discretion of the judge and avoid the ambiguity of the guideline caused by too vague provisions Admitting the status of implied choice of law.At the same time that our country stipulates the implied choice of law in legislation,we can open the enumeration of the determinants of the implicit election law,limit the discretion of the judge and avoid the ambiguity of the guideline caused by too vague provisions Admitting the status of implied choice of law.According to the above-mentioned comparison with the development of legislation and international treaties of other countries in the world,and the necessity of the existence of the implied choice of law,this article finally puts forward the legislative and judicial opinions for the establishment of China's implicit choice of law.The preference of the courts in our country for the Doctrine of the Most Significant Relationship should distinguish from that stipulated in the indicator of implied choice of law in legislation.Judicially,I suggest that the existing system of the proof of foreign law should reform.Because of the current situation,only a few of foreign cases are solved through the proof of foreign law.Although the legislation stipulates the identification of foreign law,the situation in the judicial practice is more complicated,not only considering the differences Legal systems,different languages,but also to find out whether the object of the law is enough authority,the content is appropriate and so on,which gives the judge and the parties to identify foreign rule has brought a lot of inconveniences.Not only the application of the principle of autonomy will be affected,but will also significantly increase the efficiency of the hearing case,also make judges more and more contradictory applicable to foreign law.In judicatory practice,the existing judicial evaluation system will bring heavy pressure to the court;judges often sacrifice part of the case to achieve the task of justice.The rise of the closing rate at the expense of the parties' expectation of fairness and justness to the law and the application of the principle of the autonomy of will.Besides,the commercial trade under the macro-environment and the continuous infiltration of people by the principle of autonomy of will also bring significant challenges to the judges.We can no longer merely count the number as the basis for the settlement,but more should consider the substantive justice of the case.This article tries to put forward the legislative and judicial suggestions that our country admits and establishes the system of implied choice of law under the background that most of nations accept the implied choice of law.Based on the current attitude of our country to the implied choice of law and the existing regulations.I suggest that we can use analyzing the necessity and the problems of the existence of the implied choice of law,the stipulations of the implied choice of law in foreign countries and through combining with the current world's major nations on the implied choice of law,hoping our country can further implement the principle of autonomy of will in the field of private international law,improve the establishment of relevant statutes and regulations,and at the same time conform to the global trend,Speeding up the significant convergence of private international law.