Study On The Application Of The Principle Of Autonomy Of Will In The Foreign-related Divorce

Divorce has long been a sentimental topic for most people,which often meaning the breakup of a family,the estrangement of a couple and the division of their property.However,with the development of the times and the progress of social civilization,people have a new view on marriage.The pursuit of high-quality marriage makes people no longer feel embarrassed about divorce,but strive for more rights and interests for themselves through various ways,even at the expense of the court.In particular,the emergence of a large number of foreign-related divorces and the widely participation of foreign factors have greatly impacted the traditional conflict norms.It is urgent to introduce new rules to deal with increasingly complex divorce disputes.Under this background,the principle of autonomy of will is favored by many scholars and legislators for its flexibility and forward-looking characteristics,and gradually integrates into the legal application of foreign-related divorce.In the broad sense,divorce includes not only the dissolution of personal relationship,but also the division of property relationship.In the narrow sense,divorce only refers to the elimination of marital relationship between husband and wife.This thesis only discusses the application of the principle of autonomy of will in foreign-related divorce in a narrow sense.This thesis consists of five parts.In addition to the introduction and conclusion,the three parts in the text are as follows:The first part,based on the concept of divorce,this paper raises the conflict and application of legal relation of foreign-related divorce.Then,It focus on the comparative analysis of substantial elements and formal elements of foreign-related divorce,summarizes the causes of the conflict of laws in the divorce field between different countries in the international community,and then discusses the traditional application and the new development of the application of law in the field of divorce.In order to lay a foundation for discussing the application of the principle of autonomy of will in this field.The second part,Firstly,discusses the inevitability of the application of autonomy of will to the choice of applicable law from the aspects of the emergence and historical origin of the principle of autonomy of will,discusses the theoretical basis of autonomy of will in the field of divorce from the perspectives of "marriage contract theory" and "autonomy of private law",and explains the advantages of autonomy of will in the field of divorce,so as to provide theoretical and practical support for the application of autonomy of will in law.Secondly,it focuses on the specific legislative performance of the application of the principle of autonomy of will in the field of foreign-related divorce,then discusses and analyzes from two aspects of application and restriction,which can be used for reference for the improvement of relevant legislation in China.The third part,mainly combined with the discussion and analysis of the first two parts,compares the provisions of the application of the principle of autonomy of will in the current legislation of our country,and puts forward suggestions for improving the application of the law of autonomy of will in the field of divorce.This part first makes a brief discussion on the legal application of foreign-related divorce before and after the promulgation of the law application law,then makes a legislative review on the legal provisions related to divorce in the law application law,and finally puts forward the legislative improvement measures of foreign-related agreement divorce and foreign-related litigation divorce.