Application Of The Most Significant Relationship Principle In Foreign Contracts

The Act of the People's Republic of China on Application of Law(Hereinafter referred to as Application Law),which had been taken effective since April,2011,it clarifies the supplementary status of the most significant relationship principle in foreign contracts.In the Applicable Law for nearly 10 years,for which the principle in the specific application of the situation to summarize,analysis of the problems,so that the principle in the judicial practice in our country to show its applicable way ought to be,to manifest the value of the nature of the principle and applicable effect.The principle of the closest connection between traditional and modern conflict rules is an important principle of contemporary private international law,which has the functions of enhancing the flexibility of legal choice,filling in the gaps of legal choice norms,correcting inappropriate legal choice and weighing the objective connection points of diversity.It is recognized by the international community on the basis of many functions.Analyze the applicable models of the United States and the European continent,which are relatively mature in the principle and improve the applicable of the closest connection in China.In the implementation of the Applicable Law as the starting point,based on the practice of foreign contract disputes,the parties not to choose the applicable law,the analysis of the case the judge for the application of the principle way as well as the choice of applicable law basis,according to the different types of classification,for quoted conflict rules is correct,the application of the applicable law choice results,the main objective connection point analyzed the characteristic performance of the method to apply the results and thinking.The specific application status of the principle of closest connection in China's foreign contract disputes reflects the following problems: first,the lack of application of the specific performance mode stipulated in the applicable law in specific cases.Second,the judge's subjective application of the court's local law in the trial of a case is serious.Thirdly,the legal basis for applying the principle of closest connection in the judgment documents is not clear,and the process of the application of the characteristic performance argumentation is unclear.As a result,in most cases,there is no law selection process and only the final application result is presented.In order to make the application of the principle of closest connection more in line with the development and requirements of legal system in China.First of all,it should be combined with the correct application of Article 41 of the Application Law to give full play to the value of the characteristic performance method;secondly,by strengthening the judge's understanding and application of the principle of the closest connection,standardizing the application of the law of the court;further improve the supporting legal application system,make the law followable and the basis applicable.and finally give play to the role of guiding cases,develop a variety of specific application methods and enhance the reference role of the guidance case.In the process of the most significant relationship principle applies to now,is really caused by subjective and objective common problems,but still cannot erase their value in the field of foreign-related contracts,as our foreign contract law applicable field indispensable principle,should avoid mistakes in the actual operation,to achieve the principle of value pursuit and the positive and comprehensive solutions to international disputes the contribution in the field of private.