The Legal Regulation Of The Autonomy Of The Meaning Of Foreign-related Civil And Commercial Contracts

In the field of foreign civil and commercial contracts,party autonomy is the dominant principle.According to this principle,the parties have the right to agree on the contents of the contract and to choose the applicable law of the contract.With the increasing prosperity of cross-civil and commercial exchanges,the parties have been given full autonomy in foreign civil and commercial contracts.However,party autonomy of will is not unrestricted at the level of domestic contract legislation and foreign contract legislation.In fact,due to the need of balancing the private rights and interests of the parties to the contract,as well as the maintenance of the national public policy and legal order,party autonomy is regulated through the formulation of relevant rules in the legislation of various countries.Such as substantive link principle,evasion of law system,public order reservation system,direct applicable law,etc.As for our country,with the promulgation of "The Law of the Application of Law for Foreign-related Civil Relations" and its judicial interpretation,the legal framework of the party autonomy in foreign civil and commercial contracts is gradually complete,and there are gradually rules to follow in practice.But the legislation of our country is still too macro and needs to be perfected in detail from the perspective of comprehensive judicial practice.On the basis of the analysis of the main theory of party autonomy of the foreign civil and commercial contracts,this paper puts forward some suggestions on the legislative and judicial practice in our country.In particular,the framework of this article is as follows:The first part makes a general analysis and introduction to the system of party autonomy in foreign civil and commercial contracts on the basis of introducing the historical origin and connotation of party autonomy.And then discusses the necessity of regulating party autonomy in foreign civil and commercial contracts from the point of the balancing interests between the parties,the embodiment of the state regulatory power,and the consideration of the public interest.The second part discusses the specific systems to regulate party autonomy,and makes a thorough analysis and discussion on the path of the mainstream legal regulation including the requirement of substantive connection and the legal restriction of the contract itself,public policies,mandatory regulations,evasion of law and "the principle of protection of the weak" on the basis of the investigation of representative national legislation.The third part compares and analyzes the characteristics of the legislation and judicial practice in China in different periods taking the promulgation and implementation of the promulgation of The Law of the Application of "The Law of the Application of Law for Foreign-related Civil Relations" and its judicial interpretation as the nodes.Specifically,this part mainly introduces situation of the legal regulation of the party autonomy such in the "General Principles of the Civil Law","Contract Law","The Supreme People's Court's Interpretation on the Implementation of the General Principles of Civil Law","The Law of the Application of Law for Foreign-related Civil Relations" and its judicial interpretation.The analyzes the problems existing in legislation and points out the inadequacy of legislation in combination with judicial practice.The forth part tries to put forward some suggestions to perfect the legislation of our country with reference to the advanced legislation such as "Rome Regulation I"based on the deficiency of the existing legislation and judicial practice of party autonomy in foreign civil and commercial contracts in China.At the same time,this part summarizes the problems existing in the judicial practice of our country and puts forward some reasonable suggestions for these problems.