On The Regulations Of Legal Evasion In Our Country

The phenomenon of legal evasion often occurs in the field of domestic law.Legislators formulate different legal rules based on the ideal picture,hoping that these rules can play their due role in preventing legal evasion.However,due to the limitations of the legislator's own vision and the rapid development of society,the lag of the law is often the first to highlight.Thus,individuals who seek advantages and avoid disadvantages take advantage of institutional defects to maximize their own interests.Through the legal history of various countries,it can be found that "the methods and techniques of breaking the law are varied at all times." In order to fully protect the authority and dignity of the law,each country should formulate corresponding rules to expressly prohibit the use of circumvention of the law in domestic law.The circumvention of the law system should be transplanted to the field of conflict of laws,namely private international law.Nowadays,it is generally believed that it originated from the French case of Beaufleymont in 1878.Since then,the problem of evasion of law has aroused special attention of scholars in many countries,many countries began to formally join the system of evasion of law in the form of their own private international law.A series of researches on theory and practice of evasion of law have been carried out in the field of private international law for more than one hundred years now.During this period,whether at home or abroad,scholars have launched a debate on the evasion of law and put forward many tit-for-tat views.The argument is rather heated.Starting from different starting points of thinking,under the guidance of different values and following different theories,scholars have come up with various and different views of the value system.Scholars continue to hold the view of the collision,the spark of thought,but also indirectly shows the unique charm of private international law and the human desire to seek knowledge of the ongoing exploration.So far,the legislation of private international law of our country has not made clear provisions on circumvention of law,but many judicial interpretations promulgated successively by the Supreme People's Court of our country have made clear and specific provisions on circumvention of law.Although the relevant judicial interpretations issued by the Supreme People's Court in different periods of time have their own characteristics on the provisions of evasion of the law,there are some unreasonable places.In view of this,this paper,based on the relevant theories of legal evasion,reveals the basic characteristics and the main shortcomings of the legal evasion system of our country,and puts forward some simple personal opinions on how to further improve the legal evasion system of our country at the end of the article,hoping that it can be helpful for the improvement of the legal evasion system of our country.The full text includes the following 4 parts:The first part explains the basic principles of the concept,characteristics,constitutive requirements,nature and effectiveness of the legal evasion system.Legal evasion refers to the act that the parties to a foreign-related civil and commercial legal relationship make use of a certain conflict rule to avoid the unfavorable mandatory or prohibitive law and to apply the law to their own advantage by changing the specific factual factors pointed to by the connecting points in the conflict rule structure.Views on the nature of evasion of law can be summed up in two kinds of claims:one is that evasion of law is an independent issue in private international law;the other is that evasion of law is only an accessory or incidental issue to the reservation of public order in private international law.There are 5 different doctrines about the effect of evasion of law in the international community,and these doctrines are embodied in the legislation and practice of private international law in different countries.The second part,elaborates our country about the legal elusion system stipulation origin.So far,in the process of legislation of private international law,there is no specific and definite provision on the system of circumvention of law.At this stage,the provisions of circumvention of law adopted by China are mainly found in the Opinions on Several Issues Concerning the Implementation of the General Principles of Civil Law of the People's Republic of China(for Trial Implementation)promulgated by the Supreme People's Court in January 1988 and the Interpretation on Several Issues Concerning the Application of the Law of the People's Republic of China on Application of Law in Foreign-related Civil Relations(I)promulgated in December 2102.The third part mainly elaborates the basic characteristics and main drawbacks of the system of evasion of law in our country.China's regulations on circumvention of law system have the following obvious characteristics:define the subject involved in the circumvention of law as a party concerned at the legal level;only stipulate the invalidity of circumvention of Chinese law;emphasize that the parties involved in the circumvention of law must have subjective intention;clearly define the nature and scope of the circumvention of Chinese law by the parties concerned;reveal the forms of circumvention of law;and do not stipulate that the circumvention of international treaties concluded or acceded to by China by the parties concerned is invalid.It can be seen from the above that there are at least the following defects in the provisions of the circumvention system:the provision on the circumvention system in the form of judicial interpretations is not unduly low;it is actually undesirable to define the subject involved in the circumvention as the conduct of one party;there is no doubt on the invalidity of the circumvention of international treaties by the parties;and the expressions on the forms of circumvention of law by the parties are not rigorous.The fourth part,regarding constructs the legal elusion system the related stipulation,proposed a series of feasible consummation proposals.Although there are many basic characteristics in the system of circumvention of law in our country,it shall be further improved from the following aspects at least:the circumvention of law system in our country shall be stipulated through legislation;the reference to "one party" shall be replaced by the reference to "party" for the definition of the subject of circumvention of law;the act of circumvention of international treaties concluded or acceded to by our country shall be stipulated to be invalid;and the form of expression of circumvention of law by the parties shall be defined as the connecting point of "change".