On The Limits Of Party Autonomy In Chinese Conflicts Law For Marital Properties

As a basic principle of private international law,the principle of party autonomy has expanded from the traditional area of contracts to other areas.Among them is the area of marital properties where more and more domestic law and international instruments have adopted the principle.Meanwhile,the focus of research on party autonomy has shifted from the freedom of parties to the limitation on it.However,the degree and scope of autonomy varies in different areas of private law.Comparing to contractual relationship,marital properties are regulated by marriage and family law,more focusing on national or social interests.Consequently,the conflicts law for marital properties demands more restrictions on the autonomy of the parties.Implemented in 2011,the Act on the Application of Law to Foreign-related Relationships introduces the principle of party autonomy to marital properties relationship in Article 24.Combining with the judicial interpretation,the rules of limiting the autonomy of the parties are set.However,the restrictions of relevant regulations are insufficient,which manifests:relatively simple and principled provisions,lack of operability,semantic vagueness of key words.The vitality of rules lies in its implementation in the long run while imperfections in relevant legislation have led to judicial dilemmas.Therefore,examining the judicial practice of statutory rules to find the deficiencies of legislation is indispensable and suggestions for legislative refinement can also be put.This paper strives to prove that the rules on the limits of party autonomy in Chinese conflicts law for marital properties are insufficient and need further improvement to achieve better judicial effects.In order to support this idea,this paper firstly demonstrates the judicial dilemmas by analyzing China's court judgments.Furthermore,this paper explores the theoretical basis of limits of party autonomy in the conflicts law for marital properties.Afterwards,focusing on the comparison of overseas legislations on the limits of party autonomy in conflicts law for marital properties and summarizing those successful legislative experience,Chapter Three lays the foundation of comparative law for the last chapter:the perfection of Chinese conflicts rules for marital properties.As mentioned above,this paper consists of four chapters in detail with methods of empirical analysis and comparative analysis.To be specific,there are as follows.Chapter One analyzes the judicial practice of related clauses in China which is the standpoint of the research of this paper.By statistically analyzing relevant judgments since the implementation of the Act on the Application of Law to Foreign-related Relationships,it is found that there are four problems in the judicial practice of the clauses of party autonomy in Chinese conflicts law for marital properties which include:the determination of the validity of the unilateral choice of law is uncertain,a uniform standard for choice-of-law method is lack,the delayed time of choice of law is unable to protect the interests of third parties,and the difficulty of identification involving real estate among marital properties exists.The plight of judicial practice reflects the inadequacy of related legislation in China,especially the lack of restrictions on the autonomy of the parties.Chapter Two is the theoretical support of this paper.The author analyzes the characteristics of marital properties relationship that are different from contractual relationship,and concludes the theoretical basis of the limits of party autonomy in the conflicts law for marital properties.These theoretical basis include:the autonomy of private law and relativity of freedom,protection of national interests and public interests,protection of security of transaction and promotion of harmonization between substantive and conflicts laws,certainty and predictability of the results of the application of the law.Chapter Three compares and analyzes the overseas conflicts law for marital properties by the method of comparative law,which corresponding to the problems existing in Chinese conflicts law for marital properties in Chapter One.Chapter Four proposes several suggestions for the perfection of Chinese conflicts rules for marital properties.Firstly,the "explicit" requirements for choice-of-law method should be detailed.Secondly,aiming at the issue of real estate among marital properties,the identification of the case involving "real estate" should be clearly defined,the connotation of "location of main property" should also be clearly defined.Thirdly,on the basis of flexibility of the time of choice of law,the retrospective force of choice of law should be recognized to a limited extent.Lastly,third party interests protection clause should be added to ensure a balance of protection for the interests of all parties.